DocketNumber： 14-03-00997-CV
Filed Date： 8/24/2004
Status： Precedential
Modified Date： 9/15/2015
Reversed and Remanded and Memorandum Opinion filed August 24, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00997-CV
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CHRISTIAN BROTHERS AUTOMOTIVE CORPORATION, Appellant
V.
FRANK DECICCO, Appellee
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On Appeal from the County Court at Law No. 4
Fort Bend County, Texas
Trial Court Cause No. 22152
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M E M O R A N D U M O P I N I O N
Appellant Christian Brothers Automotive Corporation (AChristian Brothers@) appeals from the default judgment entered against it and in favor of appellee Frank DeCicco on May 14, 2003. This case arises from a dispute concerning the adequacy of repairs made by Christian Brothers to DeCicco=s automobile. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We reverse and remand the judgment of the trial court for further proceedings.
In its sole issue presented for review, Christian Brothers argues that the trial court erred in entering a default judgment against it because DeCicco failed to comply with the requirements under Rule 106 of the Texas Rules of Civil Procedure for substitute service. We agree.
Rule 106(b) of the Rules of Civil Procedure provides:
Upon 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 probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize 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.
Tex. R. Civ. P. 106(b) (emphasis added).
It is well established that a default judgment cannot withstand direct attack by a defendant who complains that service was not made in strict compliance with the applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Substitute service is not authorized under Rule 106(b) without an affidavit that demonstrates the necessity for other than personal service and otherwise meets the requirements of the rule listed above. Id.
In the present case, the trial court authorized substitute service based on the unverified motion presented by DeCicco. The motion attached two separate documents, including: (1) a certificate concerning Christian Brothers=s franchise tax account status obtained from the Texas Office of the Comptroller; and (2) an affidavit provided by Erin Cadoree, an employee of the law firm representing DeCicco. Cadoree=s affidavit states only the following:
My name is Erin Cadoree. I am over the age of eighteen (18) years, have never been convicted of a felony and am competent to make this Affidavit. I am employed by the law firm of Coselli & Durham, P.L.L.C. In the normal course of my duties on January 23, 2003, I placed a telephone call to the Fort Bend County Clerk=s Office at (281) 341-8678 to inquire whether or not the Defendant, CHRISTIAN BROTHERS AUTOMOTIVE CORPORATION, was served. I was advised by the Clerk=s office that return of service indicated, Acame back refused.@ Further, Affiant saith not.
Cadoree=s affidavit thus does not state, as required under Rule 106(b), the location of Christian Brothers=s usual place of business or other place where Christian Brothers can probably be found. The fact that this information is contained elsewhere within DeCicco=s unverified motion does not enable this court to find DeCicco has complied with Rule 106(b), since any statements made in an unsworn motion do not constitute evidence of probative value. See, e.g., Garrels v. Wales Transp., Inc., 706 S.W.2d 757, 759 (Tex. App.CDallas 1986, no writ). Therefore, the record before this court fails to affirmatively show that DeCicco strictly complied with the requirements for issuance of substitute service under Rule 106(b).
DeCicco, however, argues that he exercised reasonable diligence in his attempts to serve Christian Brothers with process and therefore complied with the requirements of Rule 106(b). DeCicco=s argument confuses the Areasonable diligence@ standard applicable to service under Article 2.11(B) of the Texas Business Corporations Act with the Astrict compliance@ standard applicable to service under Rule 106(b). Compare Tex. Bus. Corp. Act Ann. art. 2.11(B) (Vernon 2003) with Tex. R. Civ. P. 106(b) and Wilson, 800 S.W.2d at 836. The record does not reflect, and indeed DeCicco does not urge, that he attempted to serve Christian Brothers through service upon the Secretary of State. The Areasonable diligence@ standard is thus inapplicable to the present case.
We conclude the trial court erred in issuing its order authorizing substitute service. Therefore, it never obtained personal jurisdiction over Christian Brothers and a default judgment should not have been entered in DeCicco=s favor. Accordingly, Christian Brothers=s sole issue presented for review is sustained. We reverse the judgment of the trial court and remand for further proceedings.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed August 24, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.