law-substituted-service-of-process | citation | alternative methods of service citation and suit papers |
service of citation and original petition by certified or registered mail |
SUBSTITUTED SERVICE OF CITATION - ALTERNATE METHODS TO EFFECT
Substituted service is predicated on having a procedure that, though it may or may not actually
give notice, is expected to be "reasonably effective to give the defendant notice of the suit." See
Tex. R. Civ. P. 106(b)(2).
Substituted service exists to allow plaintiffs to effect service where proof of actual notice under
Rule 106(a) is impractical. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1992). Under Rule
106(b) a court may authorize substituted service only after a plaintiff has unsuccessfully tried to
effect personal service or service by certified mail, return receipt requested, as required by Rule
106(a). Tex. R. Civ. P. 106(b). A plaintiff may resort to substituted service only upon the failure of
these methods which provide proof of actual notice. Thus, to require proof of actual notice upon
substituted service would frustrate Rule 106(b)'s purpose of providing alternate methods for
plaintiffs. . . .
Costley, 868 S.W.2d at 298-99.
Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town & Country Village (Tex.App.-
Houston [1st Dist.] May 31, 2007)(Jennings)(substituted service on the Secretary of State was defective
and the default judgment in this case cannot stand)
[default judgment, defective service, real estate law, deed, constable sale, set aside]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by
Before Justices Nuchia, Jennings and Higley
01-06-00068-CV Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town & Country
Appeal from 61st District Court of Harris County (Hon. John Donovan)
Appellant, Marrot Communications, Inc. ("Marrot"), challenges the trial court's no-answer default judgment
rendered in favor of appellee, Town & Country Partnership doing business as Town & Country Village
("Town & Country"), in Town & Country's suit against Marrot for breach of contract, fraud, conversion, and
quantum meruit/unjust enrichment. In three issues, Marrot contends that the trial court erred in denying
Marrot's motion for new trial "based on defective service" and, alternatively, "under the Craddock test," (1)
and in awarding Town & Country "tort/punitive damages." . . .
Accordingly, we hold that Town & Country's substituted service on the Secretary of State was defective
and the default judgment in this case cannot stand. See Wilson, 800 S.W.2d at 837; Ingram Indus., Inc.,
121 S.W.3d at 34. We further hold that the trial court erred in granting the default judgment, not setting it
aside, and in denying Marrot's motion for new trial. Having so held, we need not consider Marrot's second
and third issues.
We sustain Marrot's first issue.
We reverse and remand.
Bank Repossessed Car Co. v. Who's Calling, Inc. (Tex.App.- Houston [14th Dist.] Sep. 4,
2007)(Anderson)(restricted appeal, default, service of process on Secretary of State)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and Seymore
14-05-01251-CV Bank Repossessed Car Co. d/b/a Thirty Car Sales v. Who's Calling, Inc.
Appeal from County Civil Court at Law No 2 of Harris County (Judge Gary Michael Block)
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