in Re Michael Ruff ( 2019 )

DENIED and Opinion Filed May 21, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00526-CV
IN RE MICHAEL RUFF, Relator
Original Proceeding from the Probate Court No. 1
Dallas County, Texas
Trial Court Cause No. PR-11-02825-1
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Reichek
Opinion by Justice Reichek
In this original proceeding, relator complains of the trial court’s order permitting relator to
be served with a show-cause order by substituted service. Relator seeks a writ of mandamus
directing the trial court to vacate the order permitting substituted service. Following this Court’s
request, the real party in interest filed a response to the petition. We deny the petition.
To be entitled to mandamus relief, a relator must show both that the trial court has clearly
abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,
148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Based on the record before us, we
conclude relator has not shown he is entitled to the relief requested. The record includes
uncontroverted evidence from which the trial court could reasonably conclude relator is willfully
evading service. Substituted service may be sufficient when a party deliberately avoids service of
process. See Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969) (holding that “it is a denial of
due process to commit a person to prison for contempt who is not shown to be avoiding deliberately
the service of process,” but not reaching question of whether substituted service sufficient “when
it is shown that the person is deliberately evading the service of process”). Relator has not
established the trial court committed a clear abuse of discretion by permitting substituted service.
Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the
court must deny the petition if the court determines relator is not entitled to the relief sought). We
do not, however, express an opinion on whether substituted service will be sufficient to support a
future contempt judgment or will render such a judgment void.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
190526F.P05
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