in the Interest of M.C.B.

AFFIRM; Opinion issued April 11, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00158-CV
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IN THE INTEREST OF M.C.B.
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On Appeal from the 330th District Court
Dallas County, Texas
Trial Court Cause No. 09-17669-Y
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OPINION ON REHEARING
Before Justices Bridges, Francis, and Evans 1
Opinion By Justice Bridges
Before the Court is Michelle Huffman=s motion for rehearing. We grant Huffman=s
motion. We withdraw our opinion and vacate our judgment of February 28, 2012. The
following is now the opinion of the Court.
Michael Burtelow appeals the trial court=s summary judgment in favor of Michelle
Huffman on Burtelow=s bill of review following the trial court=s default judgment in favor of
Huffman. In a single issue, Burtelow argues the trial court erred in granting summary judgment
because he was not properly served with the underlying petition to modify the parent-child
relationship and, therefore, the trial court never had jurisdiction over him. We affirm the trial
court=s judgment.
1
The Honorable Joseph B. Morris participated in the original submission of this cause. The Honorable David Evans succeeded Justice
Morris. Justice Evans has reviewed the record and briefs in this cause.
M.C.B. is the child of Burtelow and Huffman. In June 2009, Huffman filed a petition to
modify the parent-child relationship. Huffman sought and obtained an order providing service on
Burtelow would Abe effected by attaching and affixing the citation to the front door of the
apartment located at@ Burtelow=s address. Process server Frank Clabough had attempted to serve
Burtelow on five separate occasions without success. Clabough served the citation and petition to
Burtelow=s address and stated on the return of service affidavit that the delivery was made Aby 106
to door of@ Burtelow=s address. Burtelow did not answer Huffman=s petition.
The trial court conducted a hearing on July 21, 2009 at which Burtelow did not appear.
Among other evidence related to a requested change in managing conservatorship, Huffman
presented the testimony of Clabough. Clabough testified he securely fastened the citation to
Burtelow=s door with Aduc [sic] tape.@ The next day, Clabough returned to Burtelow=s residence,
and the citation was no longer attached to the door. Clabough affixed a second copy of the
citation to Burtelow=s door Ajust because.@ Clabough talked with Athe apartment people@ where
Burtelow lived, and they confirmed he still lived at the address.
Following the hearing, the trial court rendered a default judgment, an order modifying the
parent-child relationship. Burtelow ultimately filed a petition for bill of review in which he
argued he did not receive notice of the July 21, 2009 hearing and asked that the July 21, 2009 order
be set aside. Huffman filed a traditional motion for summary judgment arguing Burtelow was not
entitled to notice of the default judgment hearing because he had not filed an answer. The trial
court granted Huffman=s motion for summary judgment, and this appeal followed.
In his sole issue, Burtelow argues the trial court erred in granting summary judgment
denying his bill of review. Specifically, Burtelow asserts the return of service did not strictly
comply with the rules of civil procedure because the trial court=s order required the citation to be
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attached or affixed to his door, and the return stated it was executed Aby 106 to door.@
The standard of review for a traditional summary judgment is well known. See Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Strict compliance with the Texas Rules
of Civil Procedure relating to the issuance, service, and return of citation must be shown on the
face of the record or the attempted service of process will be rendered invalid and of no effect.
Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Texas Rule
of Civil Procedure 106 authorizes a court to order a substitute method of service. TEX. R. CIV. P.
106(b). AWhere citation is executed by an alternative method as authorized by Rule 106, proof of
service shall be made in the manner ordered by the court.@ TEX. R. CIV. P. 107.
In her motion for rehearing, Huffman argues this Court=s prior opinion relied erroneously
on Dolly v. Aethos Commc=n Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.CDallas 2000, no pet.), a
case involving a restricted appeal, not a bill of review. We agree. After further review of the
relevant cases and authorities, we conclude Dolly is not dispositive of this appeal. Specifically,
in this appeal from a bill of review, we conclude the trial court in this case was free to look beyond
the face of the record and consider evidence relevant to the issue of whether Burtelow was served
with process in compliance with the order authorizing substitute service.
A restricted appeal, as in Dolly, is filed directly in an appellate court. TEX. R. APP. P. 30;
see Dolly, 10 S.W.3d at 386. As in any other appeal, the appellate court does not take testimony
or receive evidence. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573
(Tex. 2006) (discussing differences between restricted appeals and appeals from motions for new
trial or bills of review). In a restricted appeal, defective service of process constitutes error
apparent on the face of the record. Dolly, 10 S.W.3d at 388. In such appeals, there are no
presumptions in favor of valid issuance, service, and return of citation. Drewery Constr., 186
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S.W.3d at 573 (citing Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)).
Circumstances require this last rule, because presumptions can neither be confirmed nor rebutted
by evidence in an appellate court. Drewery Constr., 186 S.W.3d at 573; see Dolly, 10 S.W.3d at
388.
In contrast, when a default judgment is attacked by motion for new trial or bill of review in
the trial court, the record is not so limited. Drewery Constr., 186 S.W.3d at 573-74. In those
proceedings, the parties may introduce affidavits, depositions, testimony, and exhibits to explain
what happened. Id. at 574 (citing Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004)).
We begin by considering what a bill of review plaintiff must prove when claiming lack of
service of process. A bill of review is an equitable proceeding brought by a party seeking to set
aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (citing Baker v. Goldsmith, 582 S.W.2d 404,
406 (Tex. 1979)). Bill of review plaintiffs must ordinarily plead and prove (1) a meritorious
defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by
the fraud, accident, or wrongful act of the opposing party or official mistake, (3) unmixed with any
fault or negligence on their own part. Caldwell, 154 S.W.3d at 96 (citing Baker, 582 S.W.2d at
406-08).
Bill of review plaintiffs claiming non-service, however, are relieved of two elements
ordinarily required to be proved in a bill of review proceeding. Caldwell, 154 S.W.3d at 96.
First, if a plaintiff was not served, constitutional due process relieves the plaintiff from the need to
show a meritorious defense. Id. (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87
(1988) (holding that the meritorious defense requirement in a bill of review proceeding violates
due process where the bill of review plaintiff has no notice of the proceeding in which the default
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judgment was rendered). Second, the plaintiff is relieved from showing that fraud, accident,
wrongful act, or official mistake prevented the plaintiff from presenting such a defense.
Caldwell, 154 S.W.3d at 97.
Bill of review plaintiffs alleging they were not served, however, must still prove the third
and final element required in a bill of review proceeding that the judgment was rendered unmixed
with any fault or negligence of their own. Id. This third and final element is established if the
plaintiff can prove that he or she was never served with process. Id. An individual who is not
served with process cannot be at fault or negligent in allowing a default judgment to be rendered.
Id. Proof of non-service, then, will conclusively establish the third and only element that bill of
review plaintiffs are required to prove when they are asserting lack of service of process as their
only defense. Id.
Here, Burtelow was served using substitute service under rule 106. The return of service
affidavit indicated the process server delivered a copy of the citation and petition Aby 106 to door
of@ Burtelow=s address. However, the process server, Clabough, testified at the default judgment
hearing that he did duct-tape the citation to the front door of Burtelow=s residence. Thus,
Huffman argues, the trial court could have considered the process server=s testimony in concluding
that the requirements in the order authorizing substitute service were strictly followed. In making
this argument, Huffman cites Higginbotham v. General Life and Accident Insurance Company,
796 S.W.2d 695, 696-97 (Tex. 1990) for the proposition that the facts in this case established
service in strict compliance and impliedly amended the return. Higginbotham involved a suit
against two insurance companies. The return on both citations stated they were served Aat 12:01
o=clock p.m.@ on a Tuesday in March. Id. at 695-96. At the time of service, the insurance code
allowed service Aat the home office of such company during business hours.@ Id. at 695. The
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court concluded the trial court properly took judicial notice that service at 12:01 p.m. on a Tuesday
was Aduring business hours@ and entered an order that service complied with the requirements of
the insurance code Id. at 696. Further, the trial court=s finding that service was proper under the
insurance code Anecessarily also found that service was made >during business hours.=@ Id.
Because the trial court had express authority to allow amendment of the return to reflect the service
that was actually had, the court A[saw] no point in requiring the trial judge to sign a separate order
labeled >Order Granting Amendment of Return.=@ Id. at 696-97. The court noted that, if the
alleged defect in service had been raised before the trial court, it might have been immediately
cured by amendment.@ Id. at 697.
In reaching its conclusion, the court in Higginbotham noted that its holding should not be
mistaken as a retreat from the line of cases holding that the record of service supporting a default
judgment must show strict compliance with the rules governing service of process. Id.
However, the court stated:
Most of these opinions addressing the requirement that the record show strict
compliance are writ of error [now, restricted appeal] attacks on default judgments.
In such cases there is no record of service other than the citation return, and its
recitations, taken as true, must show strict compliance with service requirements.
We are not to be understood as holding that the citation return alone in this case
would have been sufficient to show valid service. Our holding in this case is
restricted to situations in which there is a record (such as the evidence at the hearing
on motion for new trial) showing strict compliance with a valid method of service
and an order expressly amending the return or that is tantamount to an order
amending the return of citation.
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Id. Based on the foregoing, we conclude the trial court could consider Clabough=s testimony that
he taped the service in this case to Burtelow=s door, in strict compliance with the trial court=s order
authorizing substitute service. See id. Thus, Burtelow failed to establish the return of service did
not strictly comply with the rules of civil procedure because the trial court=s order required the
citation to be attached or affixed to his door, and the return stated it was executed Aby 106 to door.@
Under these circumstances, the trial court did not err in granting summary judgment in favor of
Huffman. See Nixon, 690 S.W.2d at 548. We overrule Burtelow=s sole issue.
We affirm the trial court=s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
100158HF.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.C.B. On Appeal from the 330th Judicial District
Court, Dallas County, Texas
No. 05-10-00158-CV V. Trial Court Cause No. DF-09-17669-Y.
Opinion delivered by Justice Bridges,
Justices Francis and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee MICHELLE HUFFMAN recover her costs of this appeal
from appellant MICHAEL BURTELOW.
Judgment entered April 11, 2013.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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