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Houston, Texas - Divorce lawyer represented Appellee with contending that the default judgment and final divorce decree were improper.
Jaka and Rina had been married for about 15 years and lived in Fort Bend
County with their two children. In December 2019, the family traveled to Indonesia
for vacation. After an altercation between Jaka, Rina, and Rina’s two brothers that
sent Jaka to the hospital, Rina took the children to her parents’ house in Jakarta.
When Jaka was released from the hospital, he went to Rina’s parents’ house, but
Rina’s parents would not allow Jaka to see Rina or the children; Jaka tried messaging
his wife but received no response. Jaka returned to Texas, without his wife or
children, on their scheduled return flight. Jaka filed a petition for divorce shortly
after he returned, seeking the exclusive right to designate the primary residence of
the children and enroll them in school.
Because Jaka believed Rina to still be in Indonesia at her parents’ house, Jaka
filed a motion to appoint a law firm in Jakarta to serve process on Rina, which the
trial court granted. A law firm employee attempted, unsuccessfully, to serve Rina at
her parents’ house five times; the last three times he tried, security guards to the
gated community stopped him from entering the community altogether. Jaka then
filed a motion for substitute service. The trial court granted the motion and ordered
that process could be served by leaving copies of the citation and petition with any
person over 16 at Rina’s parents’ house, by attaching the copies to the front door of
the house, or, if either of those methods proved impossible, then by delivering the
copies to a security guard at the front gate of the community.
The law firm employee signed an affidavit stating a security guard outside the
community denied him access to the parents’ house, and so he left copies of the
citation and petition with the security guard at the front gate.
Rina never answered or appeared in the lawsuit. The trial court, finding that
Rina had been duly cited and defaulted, granted the divorce petition. The final
divorce decree granted Jaka the exclusive right to establish the children’s primary
residence, ordered Rina to pay child support, found credible evidence of the risk of
international abduction and ordered Rina to execute a $50,000 bond to offset the
costs of recovering the children if they were abducted, found Rina had previously
failed to comply with court orders regarding the children and ordered Rina to execute
a $250,000 compliance bond, and awarded all of the assets and debts of the
community estate to Jaka.
Rina now appeals the trial court’s default judgment and final divorce decree
through a restricted appeal.
Rina alleges that the trial court’s order authorizing substitute service was
defective because it authorized a substitute method of service that was not
“reasonably effective” to give her notice of the suit and therefore did not strictly
comply with the Texas Rules of Civil Procedure; she argues this defective order
constitutes error on the face of the record. We agree.
A. Applicable Law
1. Restricted appeal
A restricted appeal allows a party who did not participate in a lawsuit to
correct an erroneous judgment. In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.—Fort
Worth 2000, no pet.); see also TEX. R. APP. P. 30 (authorizing restricted appeals).
To sustain a restricted appeal, the filing party must show that: (1) she filed notice of
the restricted appeal within six months after the date the judgment was signed;
(2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing
that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and
(4) error is apparent on the face of the record. Ex parte E.H., 602 S.W.3d 486, 495
(Tex. 2020); see also TEX.R. APP. P. 30 (stating elements (1)–(3)). The only element
in dispute here is whether there is error apparent on the face of the record. For
purposes of a restricted appeal, the face of the record consists of “all the papers on
file in the appeal,” including the reporter’s record. Norman Commc’ns v. Tex.
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (referring to “statement
of facts,” which is now called reporter’s record).
2. Substitute service
Texas Rule of Civil Procedure 106(a) provides the methods of serving a
citation. Unless the citation or court order directs otherwise, a citation must be served
by delivering a copy of the citation and petition to the defendant in person or by
registered or certified mail. TEX. R. CIV. P. 106(a). On a motion with a supporting
affidavit, a trial court may authorize a substitute method of service if the methods
attempted under Subsection (a) have been unsuccessful. TEX. R. CIV. P. 106(b).
Under Rule 106(b), the court may authorize service by leaving a copy of the citation
and petition with anyone older than 16 at a location where the defendant can
probably be found, as stated in the affidavit, or in any other manner that the affidavit
or other evidence shows will be “reasonably effective” to give notice of the suit.
TEX. R. CIV. P. 106(b). Rule 108a authorizes methods of service on a party in a
foreign country, including service as provided by Rule 106 and “by other means . . .
as the court orders,” but the rule states that the method of service “must be
reasonably calculated” to give “actual notice of the proceedings to the defendant in
time to answer and defend.” TEX. R. CIV. P. 108a.1 A court may not issue a default
judgment unless proof of service in compliance with the rules has been filed. TEX.
R. CIV. P. 107(h).
When a defendant has not answered in a lawsuit, a trial court acquires personal
jurisdiction over that defendant solely on proof of proper service. Furst v. Smith, 176
S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing TEX. R.CIV.
P. 107). A default judgment can only be sustained if the record before the trial court
affirmatively shows the defendant was served in “strict compliance” with the Texas
Rules of Civil Procedure. Spanton v. Bellah, 612 S.W.3d 314, 316 (Tex. 2020) (per
curiam); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per
curiam). When examining a default judgment, we indulge no presumptions in favor
of valid issuance, service, or return of citation. Spanton, 612 S.W.3d at 316. Failure
to comply strictly with the Texas Rules of Civil Procedure constitutes reversible
error on the face of the record. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254,
256 (Tex. 2009) (per curiam).
1 Rule 108a was amended effective December 31, 2020, and currently authorizes
service on a party in a foreign country as provided by Rule 106(a), rather than by
Rule 106 in its entirety, but neither party disputes that the previous version of the
rule authorizing service as provided by Rule 106 in its entirety was in effect when
Jaka attempted to serve Rina in this lawsuit. See Order Amending Texas Rules of
Civil Procedure 106 and 108a, Misc. Docket No. 20-9103 (Tex. Aug. 21, 2020),
Rina contends error is apparent on the face of the record because service was
defective. Specifically, Rina argues that the trial court’s order authorizing a
substitute method of service did not strictly comply with Rule 106 because the order
authorized a substitute method of service that was not “reasonably effective” to give
her notice of the lawsuit. Relying on this Court’s opinion in Furst v. Smith, Rina
argues that there was no evidence that the security guard at the front gate to her
parents’ gated community was a proper representative for her or that serving the
security guard would be “reasonably effective” or “reasonably calculated” to provide
her with notice of the lawsuit. See 176 S.W.3d at 870–71; TEX. R. CIV. P. 106, 108a.
Jaka’s affidavit supporting his motion for substitute service stated that Rina
was staying at her parents’ house in Indonesia, which was located in a gated
community that was “very hard to gain access to.” The affidavit stated Rina had sent
him two emails from a specific email address in January of 2020, and he believed
that Rina was still using that email account. At the hearing on the motion for
substitute service, Jaka’s counsel asked to leave copies of the petition and citation at
the door to Rina’s parents’ house, or if that did not work, then for other alternatives,
like certified mail or email. The trial court agreed to allow substitute service by
leaving copies of the citation and petition with a person over 16 at Rina’s parents’
house or by posting copies on the door there. The trial court then questioned Jaka
and his counsel about entering the gated community:
THE COURT: Is there like a person at the front gate or how does it
[COUNSEL]: There is somebody there.
MR. JANAKA: There is a security guard at the front gate.
THE COURT: How big of an enclave is this? Like how many
apartments? Are there a million, a hundred?
MR. JANAKA: It’s like a housing. It’s like a compound, maybe 100
THE COURT: It’s a hundred houses in a compound?
MR. JANAKA: Uh-huh.
THE COURT: Do you think the security guard would know who Ms.
MR JANAKA: Yes.
THE COURT: How do you know that?
MR. JANAKA: Because she is living there.
THE COURT: Okay. And he is a security guard at the front gate?
MR. JANAKA: Yes.
As this Court stated in Furst, substitute service under Rule 106(b)
contemplates delivery to a “proper representative” of the defendant. 176 S.W.3d at
871 (quoting MCDONALD & CARLSON, TEXAS CIVIL PRACTICE § 11.58 (2d ed.
2000)). In other words, the rule requires a showing that the person upon whom
substitute service is requested is a proper representative so that the substitute service
will be “reasonably effective” to notify the named defendant. Id.
As in Furst, nothing on the face of the record here demonstrates that the
security guard at the front gate to Rina’s parents’ housing community was Rina’s
“proper representative” or agent such that service on the security guard was
reasonably effective to notify her of the lawsuit. See id. (holding substitute service
to defendant’s father not reasonably effective to give notice to defendant despite
father’s limited business dealings on behalf of defendant). Rina argues there was no
evidence, for example, that the security guards had previously delivered documents
or other items to community residents, no evidence of how many security guards
worked at the front gate, and no evidence that a security guard at the front gate knew
the identity and residence of each person in the community. Jaka’s statement that the
security guard would know Rina was conclusory. See, e.g., Lenoir v. Marino, 469
S.W.3d 669, 686 (Tex. App.—Houston [1st Dist.] 2015), aff’d, 526 S.W.3d 403
(Tex. 2017) (“A conclusory statement is one that does not provide the underlying
facts to support the conclusion.”); see also Wilson v. Dunn, 800 S.W.2d 833, 836
(Tex. 1990) (stating substitute service “may not properly issue on a motion
supported by an affidavit that is conclusory or otherwise insufficient”). Jaka did not
provide a basis for his conclusion that the security guard would know Rina other
than the fact that Rina lived in the gated community, but she had lived there for only
a few months, and there were about a hundred other houses in the community.
Jaka argues that the court’s order authorizing substitute service was proper
because the process server had already attempted service five times and could not
reach Rina. However, after five failed attempts, the error was not in ordering
substitute service but in ordering substitute service that was not reasonably effective
to notify Rina of the lawsuit.
Jaka also tries to distinguish the facts of Furst from the present case. In Furst,
he argues, the person served—the father of one of the defendants—was in a different
state from the defendants, whereas in this case, the security guard was located a few
hundred yards from Rina. See Furst, 176 S.W.3d at 867. First of all, whether the
security guard was located a few hundred yards from Rina is not a fact stated in the
record. Second, the court in Furst did not find service on the father ineffective
because of his distance from the defendants; rather, the court determined there was
nothing in the record to show that the father was a proper representative or agent of
the defendant. Id. at 871. Similarly, there is nothing in the record here to show the
security guard was a proper representative or agent of Rina.
Jaka next argues there was no evidence in Furst that the father had close or
frequent contact with the defendants, but similarly, in this case, there is no evidence
that the security guard had close, frequent, or any contact with Rina. While Jaka
contends there is evidence in the record that the security guards knew Rina, the only
evidence to that effect is Jaka’s conclusory statement that the security guards would
know Rina because she lived in the gated community.
Finally, Jaka argues that this case is more similar to Magan v. Hughes
Television Network, Inc., which the court in Furst sought to distinguish from the
facts of that case. See Magan v. Hughes Television Network, Inc., 727 S.W.2d 104
(Tex. App.—San Antonio 1987, no writ); see also Furst, 176 S.W.3d at 871
(distinguishing Magan). In Magan, the court found no error in substitute service at
a particular address, even though there was conflicting evidence as to whether the
defendant lived at that address, because the affidavit supporting substitute service
stated that other communications delivered to that address had reached the
defendant. 727 S.W.2d at 105. However, there is no evidence in the record here that
Rina received any other communications left with the security guards. Thus, Jaka’s
attempts to distinguish this case from Furst are unavailing.
There was not sufficient evidence to show that substitute service on the
security guard would be “reasonably effective” to give Rina notice of the suit. See
TEX. R. CIV. P. 106(b). Therefore, the trial court’s order authorizing substitute
service was defective because the record does not affirmatively show the order was
made in “strict compliance” with the Texas Rules of Civil Procedure. See Spanton,
612 S.W.3d at 316. The defective order constitutes an error on the face of the record
that renders the substitute service ineffective to establish the trial court’s personal
jurisdiction over Rina. See Lejeune, 297 S.W.3d at 256; Furst, 176 S.W.3d at 868.
We sustain Rina’s first issue, and therefore we need not address her remaining
issues. See TEX. R. APP. P. 47.1.
Outcome: We reverse the trial court’s default judgment and final divorce decree and
remand this cause for further proceedings consistent with this opinion.