Pirate Oilfield Services, Inc. and Mark Anthony Torres v. Michael Cunningham ( 2021 )

Opinion filed March 18, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00080-CV
__________
PIRATE OILFIELD SERVICES, INC. AND
MARK ANTHONY TORRES, Appellants
V.
MICHAEL CUNNINGHAM, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CV54325
OPINION
This is a restricted appeal arising from a no-answer default judgment. The
primary issue on appeal concerns whether service of process strictly complied with
the applicable rules. The trial court entered a default judgment against Appellants,
Pirate Oilfield Services, Inc. and Mark Anthony Torres, in favor of Appellee,
Michael Cunningham. In two issues, Appellants contend that service of process was
defective against both Pirate Oilfield and Torres. We affirm the judgment of the trial
court.
Background Facts
Cunningham and Torres were original shareholders of Pirate Oilfield. Both
Cunningham and Torres guaranteed a loan that Pirate Oilfield received from a bank.
Cunningham subsequently transferred all of his stock in Pirate Oilfield to Torres in
exchange for an agreement from Pirate Oilfield and Torres to indemnify
Cunningham for the debt. Pirate Oilfield later defaulted on the loan, and Pirate
Oilfield failed to pay the accelerated amount demanded by the bank. The bank then
required Cunningham to pay the amounts, and Cunningham paid over $1,140,000
toward satisfaction of the debt. Torres failed to honor his own guaranty, and neither
Torres nor Pirate Oilfield indemnified Cunningham for the amounts paid.
Cunningham sued both Pirate Oilfield and Torres for subrogation and indemnity.
Torres was Pirate Oilfield’s registered agent for service, and the registered
address stated that Torres could be served at 5412 Canyon Oaks Dr., Lago Vista,
Texas 78465. Citation was issued for service on Pirate Oilfield and Torres, and
process server George Castillo unsuccessfully attempted to serve Torres at the above
address. Castillo attempted service at the registered address but was unsuccessful
because the address was “a locked, gated property with no access. Phone number
for [Pirate Oilfield and Torres] is no longer in service. Further research showed new
owners are listed at address. Registered agent no longer at registered office listed
above.” On Castillo’s recommendation, service was later made on the Texas
Secretary of State. The secretary of state received the citation and petition and
forwarded them to Torres. However, the documents were returned to the secretary
of state with the notation: “Return to Sender, Not deliverable as Addressed, Unable
to Forward.” Cunningham filed the return with the trial court.
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Through another process server, Tony Garcia, Cunningham attempted to serve
Torres personally at two other possible addresses. No one answered at either address
when Garcia attempted service, but Garcia confirmed with the apartment manager
of one of the locations that Torres lived there. Garcia left his business card and a
note on Torres’s apartment door multiple times, asking Torres to call him. Garcia
returned to Torres’s apartment to attempt service, but no one answered. Garcia
noticed, however, that the note which he earlier attached to the door was no longer
there.
The trial court granted Cunningham’s motion for substituted service on Torres
and ordered that substituted service be made by posting at Torres’s Faudree Rd.
address. Garcia served the citation by posting, and the return was filed with the trial
court the next day. A month after the return was filed, the trial court entered a no-
answer default judgment against Torres and Pirate Oilfield for liquidated damages.
This appeal followed.
Analysis
I. Standard of Review
Appellants contend that the trial court erred in entering default judgment
because service of citation was defective. This court generally reviews de novo
whether service was defective. Creaven v. Creaven, 551 S.W.3d 865, 870 (Tex.
App.—Houston [14th Dist.] 2018, no pet.).
In a restricted appeal, such as the case here, it is well settled that strict
compliance with the rules of service of citation is required for a default judgment to
withstand a direct attack. Spanton v. Bellah, 612 S.W.3d 314, 316 (Tex. 2020) (per
curiam) (citing Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per
curiam)); see generally TEX. R. CIV. P. 99(a), 124. Because no-answer default
judgments are disfavored, Texas courts have construed “strict compliance” to mean
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just that; there are no presumptions in favor of valid issuance, service, or return of
citation. Spanton, 612 S.W.3d at 316. “Service of process that does not strictly
comply with the rules’ requirements is ‘invalid and of no effect.’” Id. at 317 (quoting
Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.
1985)).
However, strict compliance does not require “obeisance to the minutest
detail.” See Spanton, 612 S.W.3d at 317 (citing Cuetara v. DSCH Capital Partners,
LLC, No. 03-16-00078-CV, 2016 WL 3917181, at *2 (Tex. App.—Austin July 14,
2016, no pet.) (mem. op.)). “As long as the citation and return show, with reasonable
certainty, that the citation was served on the defendant in the suit, service of process
will not be invalidated.” Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.—
Corpus Christi–Edinburg 1996, no writ). To prevail on a restricted appeal,
Appellants must demonstrate that (1) notice of the restricted appeal was filed within
six months of the judgment being signed; (2) they were parties to the underlying
lawsuit; (3) they did not participate in the trial; and (4) error is apparent on the face
of the record. TEX. R. APP. P. 26.1(c), 30; Pike-Grant v. Grant, 447 S.W.3d 884,
886 (Tex. 2014) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.
2004)).
The only element at issue in the instant case is whether error is apparent on
the face of the record. Unlike the first three elements, whether error is apparent on
the face of the record is not a jurisdictional requirement, and “[t]he task of
determining error on the face of the record ultimately requires an analysis of the
merits of the appellant’s grounds for appeal.” Ex Parte E.H., 602 S.W.3d 486, 495–
97 (Tex. 2020). For purposes of a restricted appeal, “the face of the record” consists
of all papers on file in the appeal, including the reporter’s record. DSC Fin. Corp. v.
Moffitt, 815 S.W.2d 551 (Tex. 1991).
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II. Service on Pirate Oilfield
In their first issue on appeal, Appellants contend that service was defective as
to Pirate Oilfield because Castillo’s process-server certification had expired prior to
attempting service on Pirate Oilfield. Castillo first attempted service on March 21,
2018. In his affidavit following this attempted service, Castillo stated that his
certification expired on August 31, 2017. However, the return of citation that
followed service through the secretary of state noted that Castillo’s certification
expired on August 31, 2020. Appellants assert that, because Castillo’s certification
expired prior to attempting service, Castillo could not legally attempt service and
that, therefore, service did not strictly comply with the rules. See TEX. R. CIV. P. 103,
107. We disagree.
A process server is certified by the commission under order of the Texas
Supreme Court to serve process. TEX. GOV’T CODE ANN. § 156.001(2) (West 2019).
A process server must generally be certified in order to be authorized to attempt
service of citation. See id.; TEX. R. CIV. P. 103; TEX. R. JUD. BRANCH CERT. COMM.
3.2. When service is attempted by a process server, the return of service must
include “his or her identification number and the expiration date of his or her
certification.” TEX. R. CIV. P. 107(b)(10).
However, Section 5.251(1)(B) of the Texas Business Organizations Code is
an independent statute that provides its own rules for substituted service and is not
governed by Rules 106(b) and 107 of the Texas Rules of Civil Procedure. BLS Dev.,
LLC v. Lopez, 359 S.W.3d 824, 828 (Tex. App.—Eastland 2012, no pet.); see TEX.
BUS. ORG. CODE ANN. § 5.251(1)(B) (West 2020). Under Section 5.251(1)(B), the
secretary of state is an agent of an entity for purposes of service of process on the
entity if the entity is a filing entity and “the registered agent of the entity cannot with
reasonable diligence be found at the registered office of the entity.” BUS. ORG.
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§ 5.251(1)(B). The certificate of the secretary of state constitutes conclusive
evidence that process was served. BLS Dev., LLC, 359 S.W.3d at 828; see Marrot
Commons, Inc. v. Town & Country P’ship, 227 S.W.3d 372, 377 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied).
Because service was conducted pursuant to Section 5.251(1)(B), it is
immaterial whether Castillo was properly certified when he attempted service on
Pirate Oilfield on March 21, 2018, and service did not need to comply with Rule 107.
Moreover, the secretary of state sent a certificate that service was received by its
office and forwarded to Pirate Oilfield’s registered address, constituting conclusive
evidence that process was served. See BLS Dev., LLC, 359 S.W.3d at 828.
Castillo delivered the documents to the secretary of state on March 29, 2018.
The mere fact that Castillo may or may not have been certified when he attempted
service on March 21, 2018, is no evidence that Castillo was not certified on
March 29, 2018, when Castillo delivered the documents to the secretary of state—
especially in light of the fact that the return of service clearly indicates that Castillo’s
certification expired on August 31, 2020.
Whether service was proper depends upon whether Cunningham used
reasonable diligence in attempting to find Torres at the registered address. See BUS.
ORG. § 5.251(1)(B). Appellants contend that Cunningham failed to exercise
reasonable diligence in attempting to find Torres because there was only a single
prior attempt at service and no effort to determine the correct address by other means.
We disagree.
This court has previously held that “[a]s long as the record as a whole shows
that the registered agent could not with reasonable diligence be found at the
registered office, Section 5.251(1)(B) permits service on the secretary of state.” BLS
Dev., LLC, 359 S.W.3d at 827 (citing Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121
6
S.W.3d 31, 34 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). In BLS, the process
server stated in an affidavit that he had attempted service at the registered address
once but that the property was vacant. Id. The process server did not attempt any
other service before exercising substituted service under Section 5.251(1)(B). Id.We noted that Section 5.251(1)(B) permits service on the secretary of state if
“the registered agent of the entity cannot with reasonable diligence be
found at the registered office of the entity.” The statute does not require
that an attempt be made to find the registered agent at any other place
than at the entity’s registered office. Therefore, the process server’s
attempts to find the registered agent at the second address, or at any
other address, were unnecessary and are irrelevant to our determination
of reasonable diligence. The only relevant attempt of service, for
purposes of determining reasonable diligence, is the process server’s
sole attempt at service on the registered agent at the registered office.
Id. at 827 (citations omitted) (quoting BUS. ORG. § 5.251(1)(B)).
Here, the record shows that Castillo attempted service at the registered address
on file; however, there was a locked gate at the entrance of the property, and Castillo
could not gain access. Castillo also attempted to use the phone number on file to
contact Pirate Oilfield, but the phone number was no longer in service. Castillo
additionally researched who the current owners of the listed address were and
discovered that new owners were listed at the address. The record clearly provides
sufficient evidence that Cunningham and the process server conducted reasonable
diligence in attempting to find Pirate Oilfield at the listed address. See Ingram
Indus., 121 S.W.3d at 34 (holding one attempt to serve an entity constituted
reasonable diligence when the registered agent no longer occupied the registered
address and the people occupying the address had been living there for ten years); cf
In re FDB Pools, Inc., 541 S.W.3d 391, 394 (Tex. App.—Amarillo 2018, no pet.)
(holding that reasonable diligence was not present where the process server never
attempted to personally serve the defendant and conducted no relevant or helpful
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research to locate the defendant). As noted above, the process server was not
required to attempt to locate Torres at any place other than the registered office. See
BLS Dev., LLC, 359 S.W.3d at 827. Because the listed address was occupied by new
property owners, “any other attempts at the registered address would have been
futile.” Id. For the reasons stated above, Cunningham conducted reasonable
diligence in attempting to locate Torres at the registered address and was permitted
to serve the secretary of state. Accordingly, service was not defective against Pirate
Oilfield, and the trial court did not err in granting default judgment. We overrule
Appellants’ first issue.
III. Service on Torres
In their second issue, Appellants contend that service was defective as to
Torres for multiple reasons. Appellants first contend that service was defective as
to Torres because the order for substituted service did not include a street address
number. Reviewing the face of the record consisting of all documents in the file, we
note that Cunningham’s motion for substituted service, the process server’s
accompanying affidavit, and the return of citation all state that Torres may most
likely be served at “4001 Faudree Rd., Apt. L202, Odessa, TX 79765” (emphasis
added). However, the trial court’s order authorized substitute service “on the front
door of Apartment L202 at Faudree Rd., Odessa, TX 79765.” Appellants assert that,
because the order failed to include the “4001” within the street address, the order
was legally insufficient and therefore could not effectuate valid service. Based on
the record as a whole, we disagree.
Appellants rely solely upon Langdon v. Gilbert in support of their contention
that an address’s incomplete description constitutes reversible error. No. 03-14-
00491-CV, 2014 WL 7464095, at *3 (Tex. App.—Austin Dec. 31, 2014, no pet.)
(mem. op.). However, Langdon is inapplicable because that case was presented from
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a bill of review, while this case was presented as a restricted appeal. Id.; see In re
M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas 2013, no pet.) (noting that caselaw
involving a restricted appeal is inapplicable to a case involving a bill of review).
Regardless, the order is not defective on its face. Rule 106 of the Texas Rules
of Civil Procedure authorizes a court to order substituted methods of service.
Generally, Texas law prudently prefers personal service over substituted service.
Creaven, 551 S.W.3d at 870. “When the plaintiff uses substituted service, Texas
law places a burden on the plaintiff to prove that he or she served the defendant in
the manner required by the applicable rule.” Id. (citing Vespa v. Nat’l Health Ins.
Co., 98 S.W.3d 749, 751 (Tex. App.—Fort Worth 2003, no pet.)). When a court
orders substituted service, the only authority for the service is the order itself, and
therefore “any deviation from the trial court’s order necessitates a reversal of the
default judgment based on service.” Id.; see Spanton, 612 S.W.3d at 316–18. As
noted briefly above, strict compliance with the rules—and in this case, with the court
order—does not necessarily mean “obeisance to the minutest detail.” See Spanton,
612 S.W.3d at 317. An important purpose of requiring service of process is to give
citizens the opportunity to receive fair notice of legal proceedings, and the appellate
review of same is to examine the fairness of that effort. “It is the service, and not
the return, which gives the court jurisdiction over the defendant. . . . The return of
citation is but the certificate of the officer as to where, when and how it was
executed.” Walker v. Brodhead, 828 S.W.2d 278, 282 (Tex. App.—Austin 1992,
writ denied) (alteration in original) (quoting Gunter’s Unknown Heirs & Legal
Representatives v. Lagow, 191 S.W.2d 111, 113 (Tex. App.—Austin 1945, writ
ref’d)). “As long as the record as a whole, including the petition, citation, and return,
shows that the citation was served on the defendant in the suit, service of process
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will not be invalidated.” Williams v. Williams, 150 S.W.3d 436, 443–44 (Tex.
App.—Austin 2004, pet. denied).
The Supreme Court of Texas recently clarified in Spanton that discrepancies
in addresses between the court order and return of service “may be mere details when
the order authorizes substitute service wherever the defendant could be found or
when the defendant is indisputably personally served.” Spanton, 612 S.W.3d at 317.
Additionally, discrepancies may be mere details if there is evidence that the two
addresses are in fact the same address. See id. at 317–18; see also Creaven, 551
S.W.3d at 874 (holding substitute service ineffective when “the Affidavit of Service
reflects a different street name than the street name in the substituted service order,
and there is no evidence in the record that these addresses refer to the same place”).
Otherwise, Texas law has “repeatedly held that discrepancies in the defendant’s
name or address prevent any implication or presumption of proper substitute
service.” Spanton, 612 S.W.3d at 317.
While at first blush the facts presented in Spanton and the facts in this case
appear similar, there are critical differences apparent from reviewing the entire
record in this matter that distinguish it from Spanton. See id. at 316–18. In Spanton,
neither the trial court nor the court of appeals could with certainty determine where
service had actually occurred. See id. at 316–17 (citing Spanton v. Bellah, 612
S.W.3d 41, 46–47 (Tex. App.—Austin 2019)). There, the entire record reflected
that substituted service could best be effected at an address on Heathers Hill—where
the court’s order authorized substituted service. See id. at 318. The return of service,
however, stated that execution occurred at Heather Hills Drive. See id. The trial
court, supported by the record, required substituted service on one street and the
return of service reflected service on what, when objectively viewed, could have
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been a different street. See id. Thus, the Texas Supreme Court found a defect in
service. See id. That is not the case in this matter.
Here, both the trial court and this court can determine where service occurred
from the face of the record. The entire face of the record, reviewed as a whole,
establishes that the address in the court’s order in fact refers to the same address
where service was effectuated. The trial court’s order merely failed to include the
number 4001 that had been provided to it throughout the record as the place of
attempted personal service and the abode of Torres. The return of service faithfully
records that it was indeed executed at the address that appears throughout the record.
While the transcription to the order somehow dropped the number, we can be sure
of the exact location where service actually occurred, which precisely corresponds
to the proper address found in the rest of the record read as a whole.
The return shows service at the full address, and Appellants do not contend
that such address within the return of service was not “defendant’s usual place of
abode” or an address where Torres did not live. The trial court based its order on
the facts contained in the motion for substituted service and supporting affidavit, and
those documents refer only to one address on Faudree Rd.—namely, 4001 Faudree
Rd., Apt. L202. Following the return of service, the trial court entered a default
judgment. The return of service was on file in the record at the time of the judgment,
and the trial court specifically concluded that the service was properly executed:
The defendants, although having been duly and legally cited to appear
and answer, failed to appear and answer, and wholly made default.
Citation was served according to law and returned to the clerk
where it remained on file for the time required by law. The Court has
read the pleadings and the papers on file . . . .
(Emphasis added). The referenced “papers on file” included the return of service.
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The facts and holding in Pratt v. Moore, 746 S.W.2d 486 (Tex. App.—Dallas
1988, no writ), are applicable here. Under similar facts, the court in Pratt determined
that the differences in addresses did not defeat strict compliance, holding, “Neither
Rule 106 . . . nor case law requires an order for substituted service to have an accurate
address in the order for substituted service.” 1 Id. at 488; see Mylonas v. Tex. Comm.
Bank-Westwood, 678 S.W.2d 519, 523 (Tex. App.—Houston [14th Dist.] 1984, no
writ); Sessions v. Price Drilling Co., 337 S.W.2d 368, 370–71 (Tex. App.—Fort
Worth 1960, writ ref’d n.r.e.).
Similarly, Rules 106 and 107 as currently written do not on their face require
the trial court’s order for substituted service to recite the complete address. Under
Rule 106(b), “the defendant’s usual place of business or usual place of abode or
other place where defendant can probably be found,” as stated in the motion and
supported by affidavit, are the only listed locations where “the court may authorize
[substituted] service.” TEX. R. CIV. P. 106(b). Here, the only location in the motion
supported by affidavit per Rule 106(b) is “the place of abode” uncontradictorily
stated within the motion and affidavit as “4001 Faudree Rd., Apt. L202, Odessa, TX
79765.” The order of the trial court was therefore “in strict compliance” with Rules
106 and 107. That the order states “the front door of Apartment L202 at Faudree
Rd., Odessa, TX 79765 which is the defendant’s usual place of abode,” does not
breach the stated requirements of those rules, nor does it violate the Texas Supreme
1
Our sister court in Creaven v. Creaven determined that this reasoning in Pratt no longer applies
because “Pratt was decided under a previous version of Rule 107, which governs the return of service. The
current version . . . requires certain information be included in the return of service, including ‘the address
served.’” 551 S.W.3d at 872. We disagree. Creaven expressly acknowledges that Rule 107 applies to a
return of service, but this specific holding in Pratt expressly addresses the contents of a court order pursuant
to the requirements of Rule 106, not Rule 107. The amendment to Rule 107 has no bearing on whether a
court order must include a full address. Further, that same court’s statements in Martell v. Texas Concrete
Enterprise Readymix, Inc. constitutes a tacit admission that only where Rule 107 amendments govern and
are inconsistent to returns of service should pre-2012 cases on service and returns of service be disregarded.
595 S.W.3d 279, 285 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (clarifying that “[Creaven] did not
suggest that all pre-2012 cases concerning Rule 107 had been abrogated”).
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Court’s recent holdings expressed in Spanton. For these reasons, Appellants fail to
establish that the order was fatally defective and that service did not strictly comply
with the trial court’s order on this ground.
Appellants next contend that service was defective against Torres because the
process server’s return did not specify the manner of service. The trial court
expressly ordered that the return of service “must state when and how the citation
was served.” Appellants assert that the relevant portion of the return of service “is
unintelligible without reference to facts outside the record” and, thus, did not comply
with the court’s order. We disagree.
As stated above, the return of service must strictly comply with the
requirements set forth in the court order authorizing substituted service. Spanton,
612 S.W.3d at 317. Here, the return of service clearly states that service was
conducted upon “Mark Anthony Torres by Posting.” Although the term “Posting”
is handwritten, and what is provided to the trial court is a photocopy, the handwritten
term is clear enough to conclude that the return states that posting is how the citation
was served. Therefore, Appellants fail to establish that the return of service did not
strictly comply with the court order on this ground.
Appellants also contend that service was defective against Torres because the
return states that it was served at an impossible time. The trial court’s order
authorizing substituted service required the return to state “when . . . the citation was
served.” In the return, the process server stated that the documents “[c]ame to hand
on the 29th day of June, 2018,” but subsequently stated that the documents were
served on “7/30/20.” Appellants assert that because the return incorrectly stated that
the year of service was 2020, the return violated Rule 107 as well as the trial court’s
order. We disagree.
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Rule 107 states that a return of service must include, among other things, the
date of service. TEX. R. CIV. P. 107(b)(7). While a return of service must strictly
comply with the applicable rules, “a return should be given a fair, reasonable, and
natural construction to give effect to its plain intent and meaning.” Dole v. LSREF2
APEX 2, LLC, 425 S.W.3d 617, 621 (Tex. App.—Dallas 2014, no pet.). An
abundance of Texas caselaw exists which specifically addresses whether or not
defects in dates contained in returns of service are fatal defects in service. See, e.g.,
Martell v. Tex. Concrete Enter. Readymix, Inc., 595 S.W.3d 279, 282 (Tex. App.—
Houston [14th Dist.] 2020, no pet.); Dole, 425 S.W.3d at 621–22; Hunt v. Yepez,
No. 03-04-00244-CV, 2005 WL 2043897, at *3 (Tex. App.—Austin Aug. 24, 2005,
no pet.) (mem. op.); Goodman v. Oakley, No. 14-01-01004-CV, 2003 WL 297517,
at *1 (Tex. App.—Houston [14th Dist.] Feb. 23, 2003, no pet.) (mem. op.); TAC
Americas, Inc. v. Boothe, 94 S.W.3d 315, 321 (Tex. App.—Austin 2002, no pet.);
Pratt, 746 S.W.2d at 488. Typically, cases that have found defective dates in the
return of service nonfatal also contain the correct date located elsewhere in the
record. See Dole, 425 S.W.3d at 621–22; Goodman, 2003 WL 297517, at *1.
Additionally, this court found a single Texas case which takes a step further than the
holdings of cases like Dole and Goodman. See generally Pratt, 746 S.W.2d at 488.
In Pratt, the court found that a defect in inconsistent dates was not fatal, even though
the correct date could not be inferred from anywhere else in the record. See id. The
court reasoned that the service date “November” was an obvious typographical error,
and no reasonable interpretation could be placed on this defect in the return other
than construing the date to mean “October.” See id. In most other cases, defects in
dates—even the slightest defects—are considered fatal and are grounds for reversal
of a default judgment. See Martell, 595 S.W.3d at 282; Hunt, 2005 WL 2043897, at
*3; Boothe, 94 S.W.3d at 321.
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Assuming arguendo that the dates in the instant case are facially defective,
the case before us is distinguishable from those cases that hold that defective dates
are fatal. For example, the majority of cases that hold a defect in dates to be fatal
typically have dates that are facially inconsistent and irreconcilable. See Martell,
595 S.W.3d at 282 (return stated that the process server received the process on
Jan. 5, 2018, and subsequently executed it on Jan 26, 2017); Hunt, 2005 WL
2043897, at *3 (return stated that petition was served on November “39th,” while
other parts stated it was served on November “28th”); Boothe, 94 S.W.3d at 318(return stated the process server received the citation on November 19, 2001, at
“Time: 12:23:26” and served it earlier that same day at “Time: 12:15:00”). In these
cases, the courts were not asked to—as they could not—construe unambiguous,
definite dates to avoid misinterpretation; rather, the courts were asked “to infer and
substitute” an entirely different date. Martell, 595 S.W.3d at 283; see Hunt, 2005
WL 2043897, at *3; Boothe, 94 S.W.3d at 321.
In the instant case, the return of service merely states that service occurred on
“7/30/20.” Although Appellants assert that this implies service occurred on July 30,
2020, this is not necessarily the case; in fact, viewing the record as a whole, service
in 2020 would be impossible. Unlike the above cases in which the courts were
unable to fairly construe a definite, unambiguous date to mean an entirely different
date, Cunningham asserts—and we agree—that it is possible and fair to construe
“7/30/20” as an incomplete version of “7/30/2018.” The date “20” does not
unambiguously and definitely mean “2020”; it could just as well mean “20__” (the
last 2 digits of the year 2018 missing). Reviewing the entire record as a whole, the
fair and reasonable construction is that the date was written incompletely, especially
in light of the fact that every other relevant date contained in the return is listed as a
four-digit number, not two. Moreover, the instant case contains other places in the
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record that support a fair construction of service occurring in 2018. For example,
the process server signed the return under oath on July 30, 2018. Additionally, the
return was attached to the citation of service itself, which contained a district clerk
file-stamped date of “7/31/2018 9:45 AM.” Further, the original petition in this
matter was filed on March 12, 2018.
For these reasons, we hold that the instant case is distinguishable from the
Martell and Boothe line of cases and that it more closely resembles the Dole and
Goodman line of cases. After reviewing the face of the record as a whole, service
could not have occurred before suit was filed in 2018, and service could not have
occurred after the clerk’s file-stamped return date. We conclude that the only fair
and reasonable construction of the return is that service occurred on July 30, 2018.
In this matter, the date of service listed as “7/30/20” is not the type of defect that
defeats strict compliance. Therefore, the record does not support Appellants’
contention that the return fails to strictly comply with the rules or the court’s order
of substituted service.
Lastly, Appellants contend that service was defective against Torres because
the return did not state that the trial court’s order authorizing substituted service was
posted on the front door. The trial court’s order stated that “service . . . shall be
made . . . by posting true copies of the citation, the plaintiff’s original petition, and
this order, on the front door” (emphasis added). Appellants contend that, because
the return of service did not indicate that the court order was served along with the
citation and petition, the return did not strictly comply with the court order. We
disagree.
The caselaw to which Appellants cite is inapplicable to the current case. See
generally Daigrepont v. Preuss, No. 05-18-01271-CV, 2019 WL 2150916, at *4
(Tex. App.—Dallas May 17, 2019, no pet.) (mem. op.); Vespa, 98 S.W.3d at 751–
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53; Dolly v. Aethos Commc’ns Sys., Inc., 10 S.W.3d 384, 389 (Tex. App.—Dallas
2000, no pet.). In those cases, the return of service showed that the process server
placed only the citation and petition on the defendant’s door. See Daigrepont, 2019
WL 2150916, at *4; Vespa, 98 S.W.3d at 751–53; Dolly, 10 S.W.3d at 389. The
records were entirely devoid of any evidence indicating that the court order was
served along with the other documents. See Daigrepont, 2019 WL 2150916, at *4;
Vespa, 98 S.W.3d at 751–53; Dolly, 10 S.W.3d at 389.
Here, the return of service states that a copy of the plaintiff’s original petition
and citation were served by posting at the defendant’s address. Although the return
did not mention service of the court order in the same sentence as service of the
citation and petition, Appellants expressly admit that “the process server appears to
reference the court order (‘Mark Anthony Torres . . . per court attached (sic)’ under
the ‘Name’ field)” in the return of service. Applying a fair, reasonable, and natural
construction to the return’s language indicates that the process server attached the
order authorizing substituted service when he posted the petition and citation to the
front door of Torres’s apartment. See also Brown v. Clark Cincinnati, Inc., No. 2-
02-378-CV, 2003 WL 22147555, at *6 (Tex. App.—Fort Worth Sept. 18, 2003, no
pet.) (mem. op.) (holding that a return constituted prima facie evidence that the
return complied with the order when the return stated that service was delivered “as
allowed by ‘order for substituted service’ attached in person a true copy of this
citation”). If the order was attached, it necessarily follows that the order was served
along with the petition and citation. Therefore, the return constitutes prima facie
evidence that service complied with the court order by posting all of the required
documents, and Appellants fail to demonstrate that the return did not strictly comply
with the order. Accordingly, the trial court did not err in granting a no-answer
default summary judgment against Torres. We overrule Appellants’ second issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
March 18, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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