IN THE SUPREME COURT OF TEXAS

In = August=20 2003, Festina, a Liechtenstein Foundation, sued Hubicki for breach of = contract=20 and fraud. Festina alleged that it had agreed to loan Hubicki more than = $2=20 million with the understanding that the loan would be repaid in part = from the=20 proceeds of Casa Tranquilidad, a house in Acapulco that Hubicki owned, = upon his=20 death. It further alleged Hubicki had represented he would execute = documents=20 necessary to ensure that the proceeds of the sale of the house would be = used to=20 pay off the loan, but he refused to do so. Festina claimed Hubicki=92s = conduct was=20 intentional, willful, and malicious, entitling Festina to unspecified = punitive=20 damages. Festina=92s petition alleged Hubicki had a =93residence = address=94 in Dallas,=20 and that he could be served at Casa Tranquilidad in Mexico.

A = month and a=20 half after filing its petition, Festina filed a motion for alternative = service=20 under Texas Rule of Civil Procedure 106(b). The motion asserted that a = process=20 server had attempted unsuccessfully to serve Hubicki by certified mail = as=20 provided in Rule 106(a)(2), and asked the court to authorize Festina to = serve=20 Hubicki by first class mail at Casa Tranquilidad. Festina attached an = affidavit=20 by its process server, Steven W. Thomas. Thomas attested that he had = attempted=20 to serve Hubicki by certified mail at Casa Tranquilidad, but that = Hubicki had=20 =93failed or refused to receive the certified mail.=94 He further stated = that

[t]he=20 Defendant in this cause . . . is currently in Mexico = and can=20 usually be found at Casa Tranquilidad, Club Residencial Las Brisas, P.O. = Box=20 1807, Acapulco Gro., 39300, Mexico where he resides when he is in = Mexico.

. . .

If service=20 of process were made by sending the process to Hubicki by regular=20 mail . . . he would be reasonably likely to receive = the=20 process because it would be delivered to his address without the = necessity of=20 being signed for or retrieved.

The trial=20 court signed an order authorizing Festina to serve Hubicki by first = class mail=20 and by certified mail, return receipt requested. The order further = provided that=20 =93[s]ervice may be returned by the process server stating the date upon = which=20 such process was mailed . . . and with U.S. Postal Service verification = of the=20 date of mailing the certified mail.=94 Thomas=92s return of service = verified that he=20 sent Hubicki citation by first class mail and by certified mail, return = receipt=20 requested.[1]

When Hubicki=20 failed to answer Festina=92s suit, Festina moved for a default judgment. = After a=20 brief evidentiary hearing on causation and damages, the trial court = entered=20 judgment in Festina=92s favor for $2,302,000 in actual damages, = $4,000,000 in=20 punitive damages, $37,210.12 in prejudgment interest and $37,000 in = attorney=92s=20 fees. Six months later, Hubicki filed a notice of restricted appeal = under Rule=20 30 of the Texas Rules of Appellate Procedure. The court of appeals = affirmed the=20 trial court=92s judgment. 156 S.W.3d 897, 899.

Because=20 Hubicki filed this restricted appeal within six months of the judgment = and did=20 not participate in the default hearing, the only question we must = resolve is=20 whether error is apparent on the face of the record. See Wachovia = Bank of=20 Del. v. Gilliam, 215 S.W.3d 848, 849 (Tex. 2007). In a restricted = appeal=20 from a default judgment, no presumptions in favor of valid service are = made.=20 Id. at 850. Hubicki contends that error is apparent on the face = of the=20 record because the record fails to demonstrate that the alternative = service the=20 trial court authorized was reasonably effective to give him timely = notice of the=20 suit. We agree.