in the Interest of E.D., a Child , 553 S.W.3d 101 ( 2018 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-16-00448-CV
    IN THE INTEREST OF E.D., A
    CHILD
    ----------
    FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
    TRIAL COURT NO. 32309
    ----------
    DISSENTING OPINION
    ----------
    Along with the entire court, I share the majority’s articulated concerns
    about the many errors and irregularities apparent on the face of the record in this
    appeal and the consequentially suspect result in the trial court’s judgment and
    judgment nunc pro tunc, the latter of which effected an essentially 180-degree
    change of custody, possession, and access to a child under three years of age,
    wholly unsupported by any pleading, based on attempted substituted service that
    was so incredibly defective as to amount to no service at all. But I respectfully
    dissent to the majority’s holding that we do not have jurisdiction over the appeal. I
    believe our analysis of the jurisdictional issue should focus on whether Father
    and the trial court attempted but failed to effect substituted service under rule
    109a, instead of deciding that service pursuant to that rule was not authorized
    because the trial court failed to sign an order containing the recitations required
    by that rule. By narrowly construing the scope of the remedy available to a party
    for whom substituted service under rule 109a has been ordered––whether
    properly or not––the majority denies Mother relief based on Father’s failure to
    strictly comply with substituted service requirements and does so when the
    record as a whole supports Mother’s contention that the trial court attempted to
    order substituted service pursuant to rule 109a.        In doing so, the majority’s
    disposition runs contrary to the directive that we are to liberally construe the rules
    of civil procedure to resolve matters “with as great expedition and dispatch and at
    the least expense both to the litigants and to the state as may be practicable.”
    Tex. R. Civ. P. 1; In re Bridgestone Americas Tire Operations, LLC, 
    459 S.W.3d 565
    , 569 (Tex. 2015) (orig. proceeding); cf. In re J.Z.P., 
    484 S.W.3d 924
    , 925
    (Tex. 2016); Ryland Enter. v. Weatherspoon, 
    355 S.W.3d 664
    , 665 (Tex. 2011)
    (repeating well-settled principle that we construe rules of appellate procedure
    liberally to preserve right of appeal on the merits). Therefore, I disagree with the
    majority solely on the legal question of whether this court has jurisdiction to
    consider this attempted direct appeal.
    2
    Errors and Irregularities Apparent From Face of Record
    The majority has accurately set forth many of my concerns with the state of
    the record in this appeal. But I believe other problems bear recounting.
    In the original SAPCR order in which the trial court found that Father had a
    history or pattern of family violence sufficient to completely deny him access to
    E.D., the trial court also found that disclosure of the addresses and other
    identifying information of Mother and the child was “likely to cause [Mother] or the
    child harassment, abuse, serious harm or injury.” Thus, the trial court ordered
    that such information not be disclosed to Father and extended this nondisclosure
    to “any custodian of records, including, but not limited to judicial clerks, medical
    offices, and school offices.”
    Although in his subsequent motion to modify Father alleged that “[t]he
    circumstances of the child, a conservator, or other party affected by the order to
    be modified have materially and substantially changed since the date of rendition
    of the order to be modified,” he did not elaborate what those circumstances were.
    See Tex. Fam. Code Ann. § 156.101(a)(1) (West 2014). More importantly, his
    petition never alerted the court to the previous family-violence finding or
    explained whether he had purged himself of such history or pattern over the
    intervening fifteen months. 1 See 
    id. § 153.004(d)
    (West Supp. 2017) (prohibiting
    1
    Although I could find no authority requiring a party subject to such a
    finding to include this information in a subsequent motion to modify, it is the type
    of information that should be addressed in a subsequent SAPCR petition so the
    trial court has notice that the finding should be considered in determining whether
    3
    court from granting custodial access to parent shown by a preponderance of the
    evidence to have a history or pattern of committing family violence within two
    years preceding filing of or during pendency of SAPCR). Neither did the trial
    judge address the finding in the modification order or judgment nunc pro tunc.
    There is no docket entry for the day the trial court considered and ruled on
    the motion for substituted service. And although Father’s motion states that the
    initial service attempts occurred in Olney, Young County––which presumably
    includes the attempt by the process server in which he made contact with
    Mother’s father––the return of service in the record shows that the process
    server served Mother’s father in Seymour, Baylor County. The man who held
    himself out as Mother’s father could have delivered the modification petition to
    her anywhere in the world, for all we and the trial court could tell from the pretrial
    record.
    At the time of the entry of the original SAPCR order, E.D. had just turned
    one. She was not yet three when the trial court rendered the modification order.
    Nevertheless, nothing in the modification order or judgment nunc pro tunc
    demonstrated that the trial court considered the statutory factors applicable for
    possession of a child less than three years of age. See 
    id. § 153.254(a)
    (West
    there has been a material and substantial change in circumstances. The absence
    of any reference to the prior family-violence finding in Father’s petition might
    explain the trial judge’s apparent lack of consideration of the finding’s effect on
    Father’s inability to effect service, in light of the fact that the trial court had
    previously ordered that Mother’s address was not to be disclosed to Father to
    prevent child harassment, abuse, serious harm, or injury.
    4
    Supp. 2017). Nor did the trial court render a prospective order to take effect on
    the child’s third birthday. 
    Id. § 153.254(d)
    (“The court shall render a prospective
    order to take effect on the child’s third birthday, which presumptively will be the
    standard possession order.”).
    The trial court erroneously rendered the judgment nunc pro tunc without
    any further pleading, motion, or hearing. See Tex. R. Civ. P. 316. Because the
    judgment nunc pro tunc effected a substantive change, and therefore does not
    qualify as a judgment nunc pro tunc, it is void because it was signed outside the
    trial court’s plenary power. See Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply,
    LLC, 
    397 S.W.3d 162
    , 168 (Tex. 2013).
    Both the modification order and judgment nunc pro tunc list Mother’s
    address as “Unknown.” Thus, even after the attempted substituted service, the
    trial court found that no one knew where to find Mother. Pursuant to the trial
    court’s original SAPCR order, Mother’s address was not to be disclosed to any
    judicial clerks. Yet within twelve days of the entry of the judgment nunc pro tunc,
    the sheriff’s department was able to execute the judgment at Mother’s residence,
    taking E.D. from Mother’s possession.
    Finally, although Father argued in his response to the motion for new trial
    that Mother’s father delivered the petition to her and that Mother had contacted
    Father a few days after the original modification order, actual notice will not cure
    defective service for purposes of conveying personal jurisdiction on the trial court
    5
    to grant a default judgment. See Wilson v. Dunn, 
    800 S.W.2d 833
    , 836 (Tex.
    1990).
    Father Sought Substituted Service Based on His Inability to Locate Mother
    It is apparent from the face of the record and the context of Father’s motion
    for substituted service that Father sought the type of substituted service
    authorized by rule 106(b) but for a reason described in rule 109, the publication
    rule.    If Mother had filed a notice of appeal within thirty days of the original
    modification order, or if she had filed a timely restricted appeal from the original
    modification order or judgment nunc pro tunc, she would without question be
    entitled to relief. See, e.g., 
    id. at 836–37
    (citing Medford v. Salter, 
    747 S.W.2d 519
    , 520–21 (Tex. App.––Corpus Christi 1988, no writ) (in restricted appeal,
    construing substance of motion for substituted service that listed and relied solely
    on rule 109a and reversing default judgment because service was improperly
    effectuated under either rule 106(b) or rule 109a)); cf. Ingram Indus., Inc. v. U.S.
    Bolt Mfg., Inc., 
    121 S.W.3d 31
    , 35–36 (Tex. App.––Houston [1st Dist.] 2003, no
    pet.) (holding that service was not defective when heading on citation
    erroneously referenced rule 106 because rule 99 does not require listing the
    operable rule or statute on citation itself and service was proper under article
    2.11(B) of the Business Corporation Act).
    In J.Z.P., an appeal involving strikingly similar circumstances as this
    appeal, the Texas Supreme Court considered whether a document entitled
    “Motion to Reopen and to Vacate Order,” filed by the mother after the trial court’s
    6
    plenary jurisdiction had expired, should be construed as a rule 306a 
    motion. 484 S.W.3d at 925
    ; see Tex. R. Civ. P. 306a(4), (5) (outlining procedure for obtaining
    additional time to file postjudgment motion or appeal when adversely affected
    party or attorney does not receive notice of judgment within twenty days after it is
    signed). The court of appeals had held that the motion did not extend the trial
    court’s plenary jurisdiction and postjudgment deadlines because it was not
    captioned as a rule 306a motion. 
    Id. The supreme
    court held that the court of
    appeals erred in its holding because “courts should acknowledge the substance
    of the relief sought despite the formal styling of the pleading,” and the mother’s
    pleading “plainly requested relief from the trial court’s order on the grounds that
    she had not been served with citation and had not learned of the trial court’s
    order until a few days before her motion was filed.” 
    Id. Accordingly, the
    supreme
    court determined whether rule 306a applied to extend postjudgment and
    appellate deadlines by construing the substance of the mother’s request for
    relief. 
    Id. It further
    held that “[j]ustice plainly required the trial court and court of
    appeals to treat [the mother’s] motion as extending post-judgment deadlines.” 
    Id. Here, the
    body of Father’s “Motion For Substituted Service” 2 reads as
    follows:
    2
    I have omitted the listing of the parties’ names.
    7
    lI.
    GROUNDS
    Service of citation on Respondent has been attempted by
    personally delivering it to the Respondent at her last known address
    in Olney, Young County, Texas, but these attempts at service have
    not been successful as shown by the attached affidavit.
    III.
    FACTS
    Personal Service has been attempted on multiple occasions
    by Matt Pruitt with no success. Mr Pruitt has been provided phone
    numbers of the Respondent by the Respondent’s father . . . , but no
    one responds to the calls. Despite his diligent efforts, Mr. Pruitt has
    been unable to locate the Respondent so that personal service can
    be perfected on the Respondent.
    lV.
    REQUESTED METHOD OF SERVICE
    As authorized by Rule 106(b) of the Texas Rules of Civil
    Procedure, service on the Respondent . . . should be made by
    delivering a copy of the Citation, along with a copy of the Motion to
    Modify filed herein by [Father], with the Respondent’s father . . . .
    V.
    PRAYER
    Movant . . . hereby prays that the Court direct that Citation be
    served on the Respondent . . . in the manner described above.
    The body of the process server’s attached affidavit reads as follows:
    Citation for the Respondent . . . in this cause was delivered to
    me by the Petitioner’s attorney, Stephen O. Crawford, on
    January 27, 2016. I have attempted personal service on the
    Respondent at 4:30 p.m. on January 28, 2016 and such service was
    not successful. I attempted personal service once again on
    February 1, 2016 and again was unsuccessful. Service was
    attempted once again on February 3, 2016. At that time, I was able
    to make contact with a [name deleted] who represented that he was
    the father of [Mother]. He gave me an address and phone number
    8
    for [Mother] but both were found not to still be accurate. [Mother’s
    father] indicated that if I were to leave the papers with him, that he
    could make sure that [Mother] received them. He indicated that he
    had regular contact with [Mother]. I feel that by serving the Citation
    with a copy of the Motion to Modify attached on [Mother’s father],
    that the Respondent . . . would receive actual and timely notice of
    this cause.[3]
    We must consider the substance of the relief requested in Father’s motion
    in light of the affidavit setting forth why substituted service was necessary. See
    Tex. R. Civ. P. 106(b), 109; cf. 
    J.Z.P., 484 S.W.3d at 925
    . Although Father
    indicated in his motion that he sought service via the method authorized by rule
    106(b), he also plainly asserted as a fact supporting service by that method that
    “[d]espite his diligent efforts, Mr. Pruitt [the process server] ha[d] been unable to
    locate” Mother. In his affidavit, Pruitt does not indicate that when he encountered
    Mother’s father at the place he had been attempting service, Mother’s father
    affirmed the location was Mother’s residence. Instead, Pruitt states that Mother’s
    father gave him another address and a phone number but that those proved to
    be inaccurate. Thus, nothing in Father’s motion or the attached affidavit shows
    that Mother’s address or location was known to the process server, Father, or
    Father’s attorney.   And the trial court’s original SAPCR order prohibited the
    3
    The process server failed to explain why he was confident that serving the
    citation and motion to modify on Mother’s father would ensure that Mother would
    receive actual and timely notice even after Mother’s father had provided him with
    an incorrect address and phone number for Mother.
    9
    disclosure of Mother’s address to Father. 4 The trial court’s order authorizing
    service of Mother via her father does not identify the rule authorizing the
    substituted service ordered, but merely finds that Father attempted personal
    service unsuccessfully and that “[t]he manner of service ordered”––delivery to
    Mother’s father––“will be reasonably effective in giving [Mother] notice of this
    suit.”
    Whether the motion and affidavit sought substituted service at a known or
    unknown location is important to determining under which rule Father was
    attempting to proceed.      Rule 106(b)(2) allows for substituted service “[u]pon
    motion supported by affidavit stating the location of the defendant’s usual place
    of business or usual place of abode or other place where the defendant can
    4
    In his Response to Mother’s Motion to Set Aside Default Judgment and
    Motion for New Trial, Father blames Mother for his inability to obtain personal
    service, conceding that her residence was unknown to him when he requested
    substituted service. In making this argument, Father further expressly argued
    that Mother “failed to include her required information – including her address
    and phone number – as required by Section 105 of the Texas Family Code in the
    Order in Suit Affecting the Parent-Child Relationship, nor did she continue to
    update [him] and/or the Court of her new address and con[t]act information, as
    required pursuant to Texas Family Code Section 105.006 (specifically
    105.006(a)(2)[)].” Incredibly, Father then categorically misrepresented that
    “[t]here was no finding by the Court (after notice and hearing) that the information
    would cause [Mother] harassment, abuse, serious harm, or injury, to allow that
    the information not be disclosed or included in the Final Order.”
    The only duty Mother owed was to make sure the State Case Registry had
    current information on her and the child, including their residence. Under the
    circumstances, the residence and identifying information of Mother was to be
    “unknown” to Father as a matter of law under the original SAPCR order. Even if
    the trial court or district clerk knew the current address of Mother, neither could
    disclose that information to Father for purposes of obtaining service of citation of
    a suit to modify.
    10
    probably be found and stating specifically the facts showing that service has
    been attempted” by delivering it to the defendant in person or mailing it by
    registered or certified mail, return receipt requested, “at the location named in
    such affidavit.” Tex. R. Civ. P. 106(b). Upon a showing that such attempted
    service was unsuccessful at that location, the rule outlines one of two methods
    for substituted service:
    (1) by leaving a true copy of the citation, with a copy of the petition
    attached, with anyone over sixteen years of age at the location
    specified in such affidavit, or
    (2) in any other manner that the affidavit or other evidence before
    the court shows will be reasonably effective to give the defendant
    notice of the suit.
    
    Id. Thus, rule
    106(b) prescribes a way of effecting substituted service when a
    process server is unable to serve a defendant at a known, named location. See
    In re C.L.W., 
    485 S.W.3d 537
    , 541 (Tex. App.––San Antonio 2015, no pet.);
    Garrells v. Wales Transp., Inc., 
    706 S.W.2d 757
    , 759 (Tex. App.––Dallas 1986,
    no writ) (“We hold that before the trial judge orders substituted service under rule
    106, there must be evidence of probative value that the location stated in the
    affidavit is the defendant’s usual place of business or usual place of abode or
    other place where the defendant can probably be found.”).
    Neither the motion nor the affidavit identifies Mother’s usual place of
    business or abode or other place where she could probably be found. Thus,
    substituted service was not “authorized” under rule 106(b).
    11
    In contrast, rules 109 and 109a allow substituted service when the
    defendant’s location is unknown. Tex. R. Civ. P. 109, 109a; cf. Dean v. Hall,
    No. 03-10-00090-CV, 
    2010 WL 5463933
    , at *2 (Tex. App.––Austin Dec. 31,
    2010, no pet.) (mem. op.); see Tex. Fam. Code Ann. § 102.010 (West 2014)
    (providing for service by publication in family law cases). Rule 109 provides as
    follows:
    When a party to a suit, his agent or attorney, shall make oath
    that the residence of any party defendant is unknown to affiant, . . .
    and that after due diligence such party and the affiant have been
    unable to locate the whereabouts of such defendant, . . . the clerk
    shall issue citation for such defendant for service by publication. In
    such cases it shall be the duty of the court trying the case to inquire
    into the sufficiency of the diligence exercised in attempting to
    ascertain the residence or whereabouts of the defendant or to obtain
    service of nonresident notice, as the case may be, before granting
    any judgment on such service.
    Tex. R. Civ. P 109 (emphasis added).
    Here, Father’s motion asserted that even though Pruitt had attempted to
    serve Mother at her last known address, he had nevertheless been unable to
    locate her “[d]espite his diligent efforts.”     This is an almost word-for-word
    quotation of rule 109. Additionally, Pruitt never averred that the location at which
    he located Mother’s father was in fact Mother’s last known address, and he
    represented that the address and phone number Mother’s father gave him were
    incorrect. Reading the affidavit in its entirety, it is clear that Pruitt averred that
    substituted service was necessary because he did not know where to find Mother
    even if he did not expressly state those words. And, again, the trial court’s own
    12
    file containing the original SAPCR order shows that Mother’s location was
    intended to be unknown to Father.
    Rule 109a allows the trial court to fashion a method of substituted service
    other than publication “[w]henever citation by publication is authorized.” Tex. R.
    Civ. P. 109a.    The majority concludes that this quoted language means that
    Father could not have attempted, and the trial court could not have ordered,
    service under rule 109a because (1) the trial court’s order did not include a
    recitation that the substituted method of service “would be as likely as publication
    to give defendant actual notice” and (2) Pruitt’s affidavit does not aver that
    Mother’s address was unknown to Father.             Maj. Op. at 11.      But the plain
    language of rule 109 “authorizes” citation by publication when, among other
    things, a party, his agent, or attorney swears that the defendant’s location is
    unknown to the affiant and the party and despite diligent efforts, he or she cannot
    locate the defendant. Father clearly proffered the affidavit of the process server
    as his agent for purposes of establishing the facts necessary to obtain alternate
    service under rule 109. See Sgitovich v. Sgitovich, 
    241 S.W.2d 142
    , 147–48
    (Tex. 1951) (analyzing whether service was proper under rule 109––upon
    affidavits of two persons with whom server left citation that they did not know
    where to locate appellant and affidavit of former attorney that did not say whether
    or not attorney knew appellant’s location––in light of whether facts in affidavit
    were true, stating, “It is not the making of the affidavit, but the truth of it, that is,
    the existence in fact of the assumed condition, which enables the court to acquire
    13
    jurisdiction over the person of the defendant by publication.” (emphasis added)),
    cert. denied, 
    342 U.S. 903
    (1952). That neither Father nor the trial court ensured
    a proper order was signed does not change that rule 109––which by its language
    does not require such a recitation––authorized service by publication upon these
    facts because of the requisite sworn representation that Mother’s location was
    unknown despite diligent efforts to locate her and effectuate service.          It is
    Father’s seeking of and attempt to effect such service based on his inability to
    locate Mother because he did not (and by order could not) know her address––a
    permitted reason for seeking service under rules 109 and 109a––that makes rule
    329(a) applicable to extend the trial court’s plenary power and the appellate
    deadlines so that we may properly address the merits of Mother’s appeal in this
    case.
    And, contrary to the majority’s conclusion that the trial court’s April 29,
    2016 docket entry is irrelevant to the jurisdictional analysis, that docket entry is
    consistent with a conclusion that the trial court attempted, but failed, to properly
    effectuate service under rules 109 and 109a. It is also consistent with the trial
    court’s duty to inquire into the sufficiency of the diligence exercised in attempting
    to ascertain Mother’s whereabouts, a duty not imposed on the trial court by rule
    106(b). Tex. R. Civ. P. 106(b), 109, 109a; see In re A.Y., 
    16 S.W.3d 387
    , 389
    (Tex. App.––El Paso 2000, no pet.).
    Thus, mindful of the Supreme Court’s admonition in J.Z.P. that Texas
    courts should look to the substance of the relief sought, not the form of the plea
    14
    or pleading, the record as a whole shows that Father sought, and the trial court
    granted, substituted service on the theory that Mother’s location was unknown to
    Father, not that the process server was unable to effectuate service at Mother’s
    usual place of abode or other location where she could probably be found. See
    Surgitek, Bristol-Myers Corp. v. Abel, 
    997 S.W.2d 598
    , 601 (Tex. 1999) (adopting
    functional approach to determining appealability of venue ruling based on joinder
    decision). For that reason, I would hold––based solely on the specific facts of
    this case––that the extended timetable in rule 329(a) applies because Father
    sought and was authorized to seek service under rule 109 and requested under
    rule 109a a method of service listed as permissible in rule 106(b). I do not
    believe this court should hold Father’s and the trial court’s errors in effecting that
    substituted service against Mother as the defaulting party when the record must
    show that Father strictly complied with the rules regarding service to support his
    default judgment. See 
    Wilson, 800 S.W.2d at 836
    . Moreover, although Mother
    may have a remedy through an equitable bill of review, advising her to seek such
    a remedy at this point––almost two years after entry of the clearly erroneous
    judgment nunc pro tunc––would result in a further delay of the resolution of a
    matter that the law demands be handled expeditiously. 5 See Tex. R. Civ. P. 1;
    5
    Mother was represented in post-trial matters by a Legal Aid attorney. I
    doubt I need to recount here the inherent difficulties that those attorneys and
    litigants often face due to a lack of adequate funding and resources. Cf. Herrera
    v. Rivera, 
    281 S.W.3d 1
    , 8 (Tex. App.––El Paso 2005, no pet.) (concluding that
    Herrera showed reasonable excuse for delay preventing dismissal for want of
    prosecution by presenting evidence that Legal Aid office suffered from a high
    15
    In re Tex. Dep’t of Family & Protective Servs., 
    210 S.W.3d 609
    , 613 (Tex. 2006)
    (orig. proceeding) (op. on reh’g) (noting that in child custody cases “[j]ustice
    demands a speedy resolution” and granting mandamus relief even though notice
    of appeal had been filed and issue could have been presented in pending appeal
    as a remedy but it would have been inadequate).
    Conclusion
    Because the record as a whole shows that Father sought and obtained
    substituted service on Mother under rule 109a based on a theory that her
    location was unknown to him––and because Father’s failure to properly effect,
    and the trial court’s failure to properly order, service under that rule or any other
    cannot cure the many egregious errors in this record––I dissent to the majority’s
    opinion holding that Father’s and the trial court’s errors constitute a jurisdictional
    bar to Mother’s appeal. 6 I would consider the appeal on its merits, hold that the
    turnover of attorneys, that at least five attorneys had worked on her case, and
    that even after agency lost contact with Herrera, it still diligently attempted to
    contact her).
    6
    I fully appreciate that a fair and even-handed application of the law often
    yields results that appear to be unfair. Here, however, the construction of the law
    and rules that I advocate does not reward a litigant for sitting on her rights until it
    is too late. Rather, as in all alleged-lack-of-service cases––in which due process
    rights are implicated––it places the onus to document and effect service on the
    party upon whom the law rightfully places that high burden. See, e.g., Peralta v.
    Heights Med. Ctr., Inc., 
    485 U.S. 80
    , 84, 
    108 S. Ct. 896
    , 899 (1988) (holding that
    the failure to give notice is a violation of “the most rudimentary demands of due
    process of law” which must be remedied by allowing the party deprived of notice
    a new trial, regardless of the merits of that party’s defense). Mother alleged and
    swore in her motion for new trial that she “never received service in this case.”
    16
    trial court erred by failing to grant Mother’s motion for new trial, reverse the trial
    court’s modification order and judgment nunc pro tunc, and remand for a new
    trial.   See In re E.R., 
    385 S.W.3d 552
    , 563, 566 (Tex. 2012) (noting that “if
    service was invalid, a party is entitled to a new trial without showing good cause”
    and that “[a] complete failure of service deprives a litigant of due process and a
    trial court of personal jurisdiction; the resulting judgment is void and may be
    challenged at any time”).
    /s/ Wade Birdwell
    WADE BIRDWELL
    JUSTICE
    MEIER and GABRIEL, JJ., join.
    DELIVERED: May 24, 2018
    17