Jacqueline Zavala v. Danny R. Schexnayder, Jr. ( 2009 )


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  •                                  MEMORANDUM OPINION
    No. 04-09-00318-CV
    Jacqueline ZAVALA,
    Appellant
    v.
    Danny R. SCHEXNAYDER, Jr.,
    Appellee
    From the 166th Judicial District Court, Bexar County, Texas
    Trial Court No. 2009-CI-00007
    Honorable Andy Mireles, Judge Presiding
    Opinion by:       Rebecca Simmons, Justice
    Sitting:          Phylis J. Speedlin, Justice
    Rebecca Simmons, Justice
    Steven C. Hilbig, Justice
    Delivered and Filed: December 9, 2009
    REVERSED AND REMANDED
    This is an appeal from a divorce decree dissolving the marriage of Appellant Jacqueline
    Zavala and Appellee Danny Schexnayder. On appeal, Zavala asserts the default judgment
    should be set aside because of (1) defective service and (2) the default divorce was not recorded
    by a court reporter. Because we conclude that service was defective, we reverse the judgment of
    the trial court and remand this matter for further proceedings consistent with this opinion.
    04-09-00318-CV
    FACTUAL BACKGROUND
    On January 2, 2009, Schexnayder filed a petition for divorce in Bexar County, Texas.
    The Bexar County District Clerk’s Office prepared a citation and delivered it to counsel for
    Schexnayder. Schexnayder’s counsel mailed the citation, with an attached petition, to Zavala.
    At the time, Zavala was residing in El Paso, Texas with the couple’s three children. The record
    reflects that Zavala received and signed for the package containing the citation and petition on
    January 22, 2009. However, the “Officer’s Return” portion of the citation was never signed.
    Consequently, a notary public did not verify the “Officer’s Return.” Zavala did not file an
    answer or respond to the citation.
    On March 10, 2009, Schexnayder obtained a default divorce. The divorce decree made
    Schexnayder the joint conservator with the right to determine the residence of the couple’s
    children and awarded Zavala visitation rights. Zavala received a copy of the default divorce
    decree in April and filed a motion for new trial on the basis of defective service. On May 15,
    2009, Zavala’s motion for new trial was denied. This appeal followed.
    DEFECTIVE SERVICE
    The Texas Rules of Civil Procedure relating to the issuance, service and return of citation
    are generally regarded as mandatory. Wilson v. Dunn, 
    800 S.W.2d 833
    , 836 (Tex. 1990); Benefit
    Planners, L.L.P. v. RenCare, Ltd, 
    81 S.W.3d 855
    , 858 (Tex. App.—San Antonio 2002, pet.
    denied). A party must affirmatively show compliance with the rules or the attempted service of
    process is rendered invalid and of no effect.       Benefit 
    Planners, 81 S.W.3d at 858
    . More
    specifically, “[v]irtually any deviation will be sufficient to set aside a default judgment on
    appeal.” Becker v. Russell, 
    765 S.W.2d 899
    , 900 (Tex. App.—Austin 1989, no writ) (citing
    McKanna v. Edgar, 
    388 S.W.2d 927
    (Tex. 1965)). “No presumptions in favor of valid issuance,
    -2-
    04-09-00318-CV
    service, and return are made, and the record must affirmatively show strict compliance with the
    rules.”   Bautista v. Bautista, 
    9 S.W.3d 250
    , 251 (Tex. App.—San Antonio 1999, no pet.)
    (emphasis original). Rule 107 of the Texas Rules of Civil Procedure requires that a return of
    citation be verified by an authorized person. See TEX. R. CIV. P. 107 (“The return of the citation
    by an authorized person shall be verified.”). The term “verified,” for purposes of Rule 107,
    requires some form of “an acknowledgment of the instrument before a notary public.” 
    Bautista, 9 S.W.3d at 251
    ; Frazier v. Dikovitsky, 
    144 S.W.3d 146
    , 149 (Tex. App.—Texarkana 2004, no
    pet.). In the present case, although the envelope containing the citation was delivered to and
    received by Zavala, the record does not contain a verified return or any type of documentation
    attached to the return that can be considered a verification. Id; see also TEX. R. CIV. P. 107.
    Because the return was not verified, it did not comply with Rule 107. 
    Bautista, 9 S.W.3d at 251
    .
    Because Schexnayder’s defective service is dispositive in this matter, we need not address
    Zavala’s remaining issues. See TEX. R. APP. P. 47.1 (requiring concise opinions addressing only
    those issues “necessary to find disposition of the appeal”). Accordingly, the judgment of the trial
    court is reversed and this case is remanded to the trial court for further proceedings consistent
    with this opinion.
    Rebecca Simmons, Justice
    -3-
    

Document Info

Docket Number: 04-09-00318-CV

Filed Date: 12/9/2009

Precedential Status: Precedential

Modified Date: 4/17/2021