John Loan Price v. MG Building Materials, Ltd. ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00760-CV
John Loan PRICE,
Appellant
v.
MG BUILDING MATERIALS, LTD.,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 20417CV05199
Honorable Karen Crouch, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: July 17, 2019
AFFIRMED
Appellant John Loan Price (“Price”) files this restricted appeal from a default judgment
entered against him in a breach of contract dispute. Because Price has not demonstrated error is
apparent on the face of the record, we affirm the default judgment.
Background
Appellee MG Building Materials, Ltd. (“MG”) sued Price in the trial court for breach of a
contract to purchase building materials and related services. After multiple failed attempts to serve
04-18-00760-CV
Price at 216 Mountain Echo, San Antonio, Texas 78260, MG filed a motion for substitute service.
The trial court granted the motion, and ordered:
[S]ervice of citation may be made on [Price], by the officer leaving a copy of
citation, with Plaintiff’s Original Petition with anyone over the age of 18 found at
216 Mountain Echo, San Antonio, Texas 78260 or by attaching such process to the
door, gate or entry way at the address of 216 Mountain Echo, San Antonio, Texas
78260.
The clerk’s record contains a return of service and attached affidavit, both dated March 26, 2018.
In the affidavit, the process server states under oath:
Documents: CITATION; PLAINTIFF’S ORIGINAL PETITION
. . . I, [process server], being duly sworn, depose and say: . . . Delivery of said
documents occurred in the following manner:
By delivering to: John Loan Price – by posting . . .
Address of Service: 216 Mountain Echo, San Antonio, Texas 78260
Date of Service: March 23, 2018
Time of Service: 3:29 P.M.
Type of Service:
POSTING WITH COURT ORDER: By posting a true copy of said process along
with a true copy of the Court Order to the front entrance of the above listed address.
On April 19, 2018, the trial court entered a default judgment in MG’s favor, stating:
“Defendant [Price] although having been duly and legally cited to appear and answer, failed to
appear and answer, and wholly made default.” On October 18, 2018, Price filed a notice of
restricted appeal in the trial court.
Standard of Review
To prevail in this restricted appeal, Price has the burden to prove: (1) he filed notice of the
restricted appeal within six months after the trial court signed the order; (2) he was a party to the
underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment and did
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not timely file any post-judgment motions or requests for findings of fact and conclusions of law;
and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex.
2014) (per curiam); see also TEX. R. APP. P. 26.1(c), 30. The only element at issue in this case is
the fourth—whether error is apparent on the face of the record.
Discussion
Price argues error is apparent on the face of the record because the process server’s affidavit
describes the documents served as “said process along with a true copy of the Court Order.” Price
argues this language is inadequate to properly identify the documents served.
In a restricted appeal, “[t]here are no presumptions in favor of valid issuance, service, and
return of citation.” See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per
curiam). Where the record fails to show strict compliance with the rules governing service of
citation, a default judgment may be set aside. Id. “Strict compliance,” however, does not require
“absolute obeisance to the minutest detail.” Herbert v. Greater Gulf Coast Enters., Inc., 915
S.W.2d 866, 871 (Tex. App.—Houston [1st Dist.] 1995, no writ); accord Williams v. Williams,
150 S.W.3d 436, 443–44 (Tex. App.—Austin 2004, pet. denied); Ortiz v. Avante Villa at Corpus
Christi, Inc., 926 S.W.2d 608, 613 (Tex. App.—Corpus Christi 1996, writ denied). Accordingly,
while Texas Rule of Civil Procedure 107 requires a proper return of service to include, among
other things, “a description of what was served,” TEX. R. CIV. P. 107(b)(3), minor complaints about
the language used in the return of service are insufficient to render it invalid.
For example, a return of service properly described what was served where it referred to
“the Petition attached” to the citation, and the citation identified the served document as “the
PLAINTIFFS’ ORIGINAL PETITION,” later abbreviated as “PLTFS’ ORIGINAL PET.” Ortiz,
926 S.W.2d at 612. Another return of service that incorrectly referred to the original petition as
“the Complaint” properly described what was served because “complaint” is “clearly synonymous
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with petition.” Herbert, 915 S.W.2d at 871. Similarly, our sister court recently held a return of
service that referred to “the petition,” rather than the “Original Notice of Seizure and Intended
Forfeiture and First Request for Discovery,” properly described what was served because the
discrepancy was “nothing more than a pellucid substitution of names.” Rushing v. State, No. 07-
17-00059-CV, 2019 WL 304354, at *3 (Tex. App.—Amarillo Jan. 23, 2019, pet. filed) (mem. op.).
Here, the process server’s affidavit, attached to the return of service, identifies the served
documents as “CITATION; PLAINTIFF’S ORIGINAL PETITION” and states: “Delivery of said
documents occurred in the following manner: . . . By posting a true copy of said process along
with a true copy of the Court Order to the front entrance” of the Mountain Echo address. There is
nothing “misleading, inaccurate, or incongruous” about the affidavit’s reference to “said process”
in lieu of repeating “CITATION; PLAINTIFF’S ORIGINAL PETITION.” See id. In fact, the trial
court’s order for substitute service also references “such process” as shorthand for “a copy of
citation, with Plaintiff’s Original Petition.” Further, reference in the affidavit to “a true copy of the
Court Order” does not render the return of service invalid. Neither the rules of civil procedure nor
the trial court’s order required service of a copy of the order, and we may disregard any redundant
or surplus matter in a return of service. See Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522
S.W.2d 958, 959 (Tex. App.—Texarkana 1975, no writ); see also TEX. R. CIV. P. 106(b)
(governing substitute service).
Therefore, because the return of service contains a proper description of the documents
served, Price has not demonstrated error apparent on the face of the record.
Conclusion
Having overruled Price’s sole issue in this restricted appeal, we affirm the trial court’s
default judgment.
Liza A. Rodriguez, Justice
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