Vladimir Landagan v. Wanda Fife

Opinion issued June 19, 2014

In The

Court of Appeals

For The

First District of Texas

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NO. 01-13-00536-CV

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VLADIMIR LANDAGAN, Appellant

V.

WANDA FIFE, Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Case No. 1020788

MEMORANDUM OPINION

In this personal injury lawsuit, appellee Wanda Fife sued appellant Vladimir

Landagan for negligence arising out of a car accident. The trial court granted a no-

answer default judgment in favor of Fife. Landagan then moved for a new trial,

arguing that Fife did not serve him with process at his correct address. The trial

court denied this motion. In one issue, Landagan contends that the trial court

erroneously granted the default judgment and denied his motion for new trial

because the return of service did not (1) identify a valid address for service or

(2) state the expiration date for the private process server’s certification.

We reverse and remand.

Background

On November 12, 2010, Fife and Landagan were involved in a car accident.

Fife sued Landagan for negligence on September 28, 2012. Fife requested

personal service on Landagan “at his home at the following address: 872 Berrtina

Ct., #206, Houston, Texas 77024.” The Harris County clerk issued citation for

Landagan at that address.

Landagan did not file an answer, and he did not appear for trial. Fife filed

an affidavit with the trial court in which she gave a brief factual summary of the

accident, averred that she had incurred more than $6,500 in medical care expenses

and $4,000 in diminished value of her vehicle, and requested $50,000 in damages.

Fife also filed a “Certificate of Last Known Mailing Address” completed by her

counsel, in which her counsel certified that Landagan’s last known mailing address

was “618 Lakenshire Falls Ln., Katy, Texas 77494.” The trial court entered a

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default judgment against Landagan, awarding Fife $10,500 in damages, $10,500

for pain and suffering, pre and post-judgment interest, and court costs.

Landagan moved for a new trial. In this motion, he argued that he lived at

“872 Bettina Ct., #206” at the time of the accident, but he moved to “6118

Lakenshire Falls Lane, Katy, Texas 77494” in June 2011, before Fife filed suit

against him. He stated that he changed his address on his driver’s license to his

new address. He also argued:

The return of service on file with the county clerk indicates Defendant

was served by private process server on October 12, 2012 at 618

Lakenshire Falls Lane, Katy, Texas. However, Defendant resides at

6118 Lakenshire Falls Lane, Katy, Texas. Defendant has not been

served with process in this suit.

He argued that because he was never served with process, his failure to answer was

not intentional or the result of conscious indifference.

Landagan attached an affidavit to his motion for new trial, in which he

averred as follows:

On November 12, 2010, I lived at 872 Bettina Court, Apartment #206,

Houston, Texas 77024.

I moved from the Bettina Court address to 6118 Lakenshire Falls

Lane, Katy, Texas 77494 in June 2011 and promptly updated [my]

new address on my Texas Driver’s License. I continue to reside at

this address today.

I have never lived at 618 Lakenshire Falls Lane, Katy, Texas 77494.

I was not served with this lawsuit on October 12, 2012 nor at any

other time. I did not attempt to avoid service of this lawsuit either. I

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do not know who resides at 618 Lakenshire Falls Lane, Katy, Texas

77494, and I did not accept service of process at that address.

Landagan also attached the original citation and the return of service. The return

of service stated that “Vladimir Landagan” was served at 8:20 p.m. on October 12,

2012, at “618 Lakenshire Falls Ln. Katy, TX 77494.”

Landagan also attached an affidavit from Curtis Wheeler, the private process

server employed by Fife. In this affidavit, completed shortly after allegedly

serving Landagan, Wheeler averred:

I served defendant Vladimir Landagan in this cause of action at the

listed date and time below:

October 12, 2012 @ 8:20 PM – I went to 618 Lakenshire Falls Ln.,

Katy, Texas 77494 to serve Vladimir Landagan in this matter. I was

greeted by a Middle Eastern man in his 40’s who identified himself as

Vladimir Landagan. I served him an original petition in this matter

and he [accepted] the service.

In response, Fife argued that Landagan’s only ground for a new trial was his

self-serving affidavit in which he conveniently denied being served

even though he acknowledges living on Lakenshire Falls Lane in

Houston on the date service was effected on October 12, 2012. The

only discrepancy noted in the return of service is that the address

number was mistakenly noted at 618 rather than 6118.”

Fife noted that Wheeler, in his affidavit, physically described Landagan and noted

“that the person served acknowledged that he was in fact the Defendant.”

The trial court denied Landagan’s motion for new trial, and this appeal

followed.

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Service of Process

In his sole issue on appeal, Landagan contends that he did not receive

service of process and that the return of service was fatally defective in two ways:

(1) the return did not identify a valid address at which Landagan could be served,

and (2) the return did not state the expiration of the private process server’s

certification.

A. Standard of Review

A party may raise a challenge as to whether he was properly served with

process in a motion for new trial. See Fidelity & Guar. Ins. Co. v. Drewery

Constr. Co., 186 S.W.3d 571, 573–74 (Tex. 2006); Sozanski v. Plesh, 394 S.W.3d

601, 604 (Tex. App.—Houston [1st Dist.] 2012, no pet.). We review a trial court’s

ruling denying a motion for new trial for an abuse of discretion. Sozanski, 394

S.W.3d at 604; MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex.,

L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2006, no pet.). A trial court abuses

its discretion if it acts without reference to any guiding rules or principles or fails

to correctly analyze or apply the law. Sozanski, 394 S.W.3d at 604 (citing

Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 235 (Tex.

2010)). A trial court does not abuse its discretion if it bases its decision on

conflicting evidence and some evidence supports its decision. In re Barber, 982

S.W.2d 364, 366 (Tex. 1998) (orig. proceeding); Miner Dederick Constr., LLP v.

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Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451, 465 (Tex. App.—Houston

[1st Dist.] 2013, pet. filed).

B. Alleged Errors in Return of Service

A trial court cannot render a judgment against a defendant unless he has

been properly served, he has accepted or waived service of process, or he has made

an appearance. See TEX. R. CIV. P. 124; Sozanski, 394 S.W.3d at 604. There is no

presumption of proper service on direct appeal. Sozanski, 394 S.W.3d at 604; Min

v. Avila, 991 S.W.2d 495, 499 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Instead, the record must affirmatively show strict compliance with the rules for

service of process. Sozanski, 394 S.W.3d at 604; N. Carolina Mut. Life Ins. Co. v.

Whitworth, 124 S.W.3d 714, 719 (Tex. App.—Austin 2003, pet. denied) (“[A]

default judgment should stand only if the plaintiff has strictly complied with all

requirements for service.”). Failure to affirmatively show strict compliance with

the rules of civil procedure governing service of citation renders the attempted

service of process “invalid and of no effect.” Uvalde Country Club v. Martin

Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam); Nueces Cnty.

Hous. Assistance, Inc. v. M & M Res. Corp., 806 S.W.2d 948, 949 (Tex. App.—

Corpus Christi 1991, writ denied) (“The failure of the record to show strict

compliance with the rules governing issuance, service, and return of citation will

generally void attempted service and require the default judgment to be set

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aside.”); see also Primate Constr, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)

(per curiam) (stating that return of service is not “a trivial, formulaic document”).

“Virtually any deviation from the statutory requisites for service of process will

destroy a default judgment.” Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex.

App.—Texarkana 2004, no pet.). Strict compliance with the citation rules does

not, however, require “absolute obeisance to the minutest detail.” Whitworth, 124

S.W.3d at 718 (quoting Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d

866, 871 (Tex. App.—Houston [1st Dist.] 1995, no writ)). The recitals contained

with a process server’s return create a presumption that service was performed.

Sozanski, 394 S.W.3d at 604; see also Primate Constr., 884 S.W.2d at 152 (“The

return of service is not a trivial, formulaic document. It has long been considered

prima facie evidence of the facts recited therein.”).

The defendant can rebut the presumption of service by presenting evidence

in a motion for new trial or a bill of review proceeding. Sozanski, 394 S.W.3d at

604; see also Fidelity & Guar. Ins. Co., 186 S.W.3d at 573–74 (noting that when

defendant attacks default judgment by motion for new trial or bill of review,

defendant may “introduce affidavits, depositions, testimony, and exhibits to

explain what happened”). The question of lack of service of process is “purely a

question of fact which must be determined by the trier of the facts.” Sozanski, 394

S.W.3d at 604 (quoting Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)). The

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party claiming ineffective service bears the burden to prove this fact by a

preponderance of the evidence. Id.

Here, the return of service stated that Curtis Wheeler, the private process

server hired by Fife, served “Vladimir Landagan” at 8:20 p.m. on October 12,

2012, at “618 Lakenshire Falls Dr. Katy, TX 77494.” The record also includes an

“affidavit of personal service,” sworn to by Wheeler, in which he averred:

I served defendant Vladimir Landagan in this cause of action at the

listed date and time below:

October 12, 2012 @ 8:20 PM – I went to 618 Lakenshire Falls Ln.,

Katy, TX 77494 to serve Vladimir Landagan in this matter. I was

greeted by a Middle Eastern man in his 40’s who identified himself as

Vladimir Landagan. I served him an original plaintiff’s petition in

this matter and he [accepted] the service.

The officer’s return is prima facie evidence of the facts recited within the return

and creates a presumption of service. See Primate Constr., 884 S.W.2d at 152;

Sozanski, 394 S.W.3d at 604. The burden therefore shifted to Landagan to rebut

the presumption of service. See Fidelity & Guar. Ins. Co., 186 S.W.3d at 573–74;

Sozanski, 394 S.W.3d at 604.

Landagan challenged the officer’s return and supporting affidavit in his

motion for new trial, arguing that he never received service of process because he

lived at a different address: 6118 Lakenshire Falls Lane, not 618 Lakenshire Falls

Lane. He averred:

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On November 12, 2010, I lived at 872 Bettina Court, Apartment #206,

Houston, Texas 77024.

I moved from the Bettina Court address to 6118 Lakenshire Falls

Lane, Katy, Texas 77494 in June 2011 and promptly updated [my]

new address on my Texas Driver’s License. I continue to reside at

this address today.

I have never lived at 618 Lakenshire Falls Lane, Katy, Texas 77494.

I was not served with this lawsuit on October 12, 2012 nor at any

other time. I did not attempt to avoid service of this lawsuit either. I

do not know who resides at 618 Lakenshire Falls Lane, Katy, Texas

77494, and I did not accept service of process at that address.

By presenting his affidavit, Landagan rebutted the presumption of service. See

Fidelity & Guar. Ins. Co., 186 S.W.3d at 573–74; Sozanski, 394 S.W.3d at 604.

Although the parties presented conflicting evidence regarding whether

Wheeler actually served Landagan with process, Fife concedes in her appellate

brief that the return of service states the wrong address: 618 Lakenshire Lane,

rather than 6118 Lakenshire Lane. A typographical error concerning the

defendant’s address in the return of service does not constitute strict compliance

with the rules governing service and is grounds for setting aside a default

judgment. See Royal Surplus Lines Ins. Co. v. Samaria Baptist Church, 840

S.W.2d 382, 383 (Tex. 1992) (per curiam) (affirming court of appeals’ reversal of

default judgment when citation was sent to “1201 Bassie” when registered agent’s

correct address was “1201 Bessie”); see also Uvalde Country Club, 690 S.W.2d at

885 (holding no strict compliance when original petition stated entity could be

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served by serving its registered agent “Henry Bunting, Jr.” and return of service

stated that sheriff served “Henry Bunting”).

It is the responsibility of the one requesting service, not the process server,

to ensure that service is properly accomplished. Primate Constr., 884 S.W.2d at

153; GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 60 (Tex. App.—Fort

Worth 2003, pet. denied). Texas Rule of Civil Procedure 118 allows for liberal

amendment of the return of service to show the true facts of service. TEX. R. CIV.

P. 118; Primate Constr., 884 S.W.2d at 153. If the facts stated on the return of

service are incorrect and do not show proper service, the party requesting service

must amend the return prior to judgment. Primate Constr., 884 S.W.2d at 153.

Here, Fife did not amend the return of service. Thus, the only proof in the

record that Landagan was served is a return that recites service at an address at

which Landagan does not live. See id. We conclude that because the return of

service states the incorrect address for Landagan, Fife did not strictly comply with

the rules governing service.

Landagan also contends that the return of service is fatally defective because

it does not state the expiration date of Wheeler’s private process server

certification. Texas Rule of Civil Procedure 107(b) states the information that

must be included in the return of service. TEX. R. CIV. P. 107(b). If the person

who served process is a process server certified under order of the Texas Supreme

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Court, as Wheeler is, the return of service must include the process server’s

identification number and the expiration date of his certification. TEX. R. CIV. P.

107(b)(10).

Here, Fife employed Curtis Wheeler, a private process server, to serve

Landagan with process. As a private process server, Wheeler was required to

comply with Rule 107(b)(10) in completing the return of service. As part of this

requirement, he needed to include in the return not just his identification number

but also the expiration date of his certification. See TEX. R. CIV. P. 107(b)(10).

The return of service in this case includes Wheeler’s identification number, but he

completely omitted the expiration date of his certification. We cannot conclude

that the complete omission of required information constitutes “strict compliance”

with the rules governing service. See Whitworth, 124 S.W.3d at 718 (stating that

“absolute obeisance to the minutest detail” is not required to establish strict

compliance); Ameriquest Mortg. Co. v. Ashworth, No. 01-08-00544-CV, 2010 WL

1491954, at *4 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem.

op.) (“Nor . . . can we conclude that our determination that the complete absence of

any kind of acknowledgement before a notary is akin to requiring ‘absolute

obeisance to the minutest detail’”).

The return of service in this case states an incorrect address for service and

omits the expiration date of the private process server’s certification; thus, the

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return does not affirmatively show strict compliance with the rules governing

service of process and citation. See Uvalde Country Club, 690 S.W.2d at 885. We

therefore conclude that service of process on Landagan was invalid and of no

effect. See id.; Frazier, 144 S.W.3d at 149 (holding service of process on

defendant invalid when return is signed by process server but not verified).

Because no return of service strictly complying with the Rules of Civil Procedure

was on file in this case, we hold that the trial court did not acquire personal

jurisdiction over Landagan and that the trial court erred in rendering a default

judgment in favor of Fife and in denying Landagan’s motion for new trial. See

TEX. R. CIV. P. 107; Sozanski, 394 S.W.3d at 604.

We sustain Landagan’s sole issue.

Conclusion

We reverse the default judgment and remand the case to the trial court for

further proceedings consistent with this opinion.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Bland, and Brown.

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