Deborah K. Chupp v. Clifton O. Chupp

Opinion issued

June 30, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00197-CV

———————————

DEBORAH K. CHUPP,

Appellant

V.

CLIFTON O. CHUPP, Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Case No. 54839

MEMORANDUM

OPINION

Deborah

K. Chupp appeals a final divorce decree rendered by default. The decree dissolves the marriage between her

and Clifton O. Chupp and divides their marital property estate. In two issues, Deborah asserts (1) the trial

court lacked personal jurisdiction over her to render the default divorce

decree because service of process was defective, and (2) the trial court abused

its discretion in its division of the marital estate.

We reverse

and remand.

Procedural Background

Clifton

O. Chupp filed for divorce from his wife, Deborah K. Chupp, on November 5,

2009. Clifton filed his first amended

petition for divorce on November 9, 2009.

The record reflects that Clifton served Deborah with the first amended

petition on November 10, 2009. The

return of service provides as follows:

OFFICER’S RETURN

Came to hand on November 10,

2009, at 4:34 P.M. and executed in Brazoria County, Texas by delivering to each

of the within named parties, in person, a true copy of this CITATION together

with the accompanying copy of the ORIGINAL PEITION [sic] FOR DIVORCE at the

following time and places to-wit: [Deborah Chupp on November 11, 2009 at 5:12

p.m. at 719 N. Market Street, Brazoria, Texas 77422].

The return of service of citation was signed by Darla

Brown of Brown Process Service and accompanied by Brown’s license number as

issued by the Process Service Review Board.

Deborah did not answer or

otherwise respond to the petition. On

January 28, 2010, the trial court conducted a hearing on the divorce petition. Clifton and his attorney appeared, but Deborah

did not appear.

At

the beginning of the hearing, the trial court stated on the record as follows:

Before we start the hearing,

the Court will take judicial notice of the following: After reviewing the

Court’s file, I found the First Amended Petition for Divorce file-marked

November 9, 2009, filed by Mr. Chupp. Prior

to that there was an Original Petition for Divorce filed November 5, 2009, also

by Clifton Chupp. There is a return of

service of citation on the First Amended Original Petition for Divorce, return

of which is file-marked November 12, 2009, evidencing that Deborah Chupp was

personally served with citation on November 10th, 2009, at 5:12 p.m. at 719

North Market Street in Brazoria, Texas.

After reviewing the Court’s file, I do not see where she’s

filed a response. Her name was called

three times by the bailiff of the court with no response. I have an attorney — I have Mr. Chupp in the courtroom along with his

attorney of record, Erinn Brown.

Clifton testified at the hearing, stating the

grounds on which he sought divorce.

Clifton also provided testimony to support the division of the marital

estate that he requested.

At the conclusion of the

hearing, the trial court rendered a final decree of divorce by default. In the decree, the trial court granted Clifton

a divorce from Deborah and divided the marital estate. With regard to the property division, the

trial court’s decree provides, inter alia, that each party is awarded retirement

and bank accounts in that party’s name.

Clifton was also awarded funds in five other bank accounts. Deborah was awarded one motor vehicle;

Clifton was awarded three motor vehicles and a motorcycle. Deborah was awarded a stained glass

collection and family photographs.

Clifton was awarded nine pieces of real property.

Deborah

became aware of the divorce and property division and filed this appeal. In two issues, Deborah challenges the default

divorce decree.

Defective Service of Process

In her first issue, Deborah

contends, “The trial court did not have personal jurisdiction over the

appellant due to defective service.” Among

her arguments, Deborah points out that the return of service of the citation is

not verified as required by Rule of Civil Procedure 107. [1]

Applicable Legal Principles

Without

proper service of citation, a trial court does not have in personam jurisdiction

to render a default judgment against a non-answering defendant. See

Marrot Commc’ns., Inc. v. Town & Country P’ship , 227 S.W.3d 372, 376

(Tex. App. — Houston

[1st Dist.] 2007, pet. denied). Thus,

Deborah’s claim that service of process was defective is properly cast as a

challenge to the trial court’s personal jurisdiction over her. See

Furst v. Smith , 176 S.W.3d 864, 868 (Tex. App. — Houston [1st Dist.] 2005, no pet.). Whether service was in strict compliance with

the Rules of Civil Procedure is a question of law we review de novo. See id. at

868 – 69; see also Titus v. Southern Cnty. Mut. Ins. ,

No. 03 – 05 – 00310-CV, 2009 WL

2196041 , at *2 (Tex. App.—Austin July 24, 2009, no pet.).

When a defendant has not answered,

a trial court acquires jurisdiction over that defendant solely on proof of

proper service. Furst , 176 S.W.3d at 868 .

The party requesting service must ensure that proper service is

accomplished and that the record reflects proper service. Id.

at 869 (citing TEX. R. CIV. P . 107 (prohibiting

rendition of default judgment unless proof of proper service or process and

return, whether in compliance with governing rules or as ordered by court, have

been on file for 10 days), and Wilson v.

Dunn , 800 S.W.2d 833, 836 (Tex. 1990)).

A default judgment cannot withstand

a direct attack by a defendant who shows that he was not served in strict

compliance with the Rules of Civil Procedure. See Hubicki

v. Festina , 226 S.W.3d 405, 408 (Tex. 2007); McGraw-Hill, Inc. v. Futrell , 823 S.W.2d 414, 416 (Tex. App. — Houston [1st Dist.]

1992, writ denied). In contrast to the

usual rule that all presumptions will be made in support of a judgment, there

are no presumptions of valid issuance, service, and return of citation when

examining a default judgment. Uvalde Country Club v. Martin Linen Supply

Co ., 690 S.W.2d 884, 885 (Tex. 1985); McGraw-Hill ,

823 S.W.2d at 416 . “Jurisdiction over

the defendant must affirmatively appear by a showing of due service of

citation, independent of the recitals in the default judgment.” Faggett

v. Hargrove , 921 S.W.2d 274, 276 (Tex. App. — Houston [1st Dist.] 1995, no writ). Failure to affirmatively show strict

compliance with the Rules of Civil Procedure renders the attempted service of

process invalid and of no effect. McGraw-Hill , 823 S.W.2d at 416 . Actual notice to a defendant, without proper

service, is not sufficient to convey upon the trial court jurisdiction to

render a default judgment. Wilson , 800 S.W.2d at 836 ; McGraw-Hill , 823 S.W.2d at 417 .

Rule of Civil Procedure 107 provides,

The return of the officer or

authorized person executing the citation shall be endorsed on or attached to

the same; it shall state when the citation was served and the manner of service

and be signed by the officer officially or by the authorized person. The return of citation by an authorized person

shall be verified. . . .

. . . .

No default judgment shall be

granted in any cause until the citation, or process . . . with proof of service

as provided by this rule . . . shall have been on file with the clerk of the

court ten days, exclusive of the day of filing and the day of judgment.

TEX.

R. CIV. P . 107.

Rule 107 requires that “authorized

persons” verify the return of citation in addition to signing it. [2]

Id .;

see McGraw-Hill , 823 S.W.2d at 416 . A private process server is an “authorized

person” and therefore must verify the return. See Ameriquest

Mortg. Co. v. Ashworth , No. 01-08-00544-CV, 2010 WL 1491954 , at *2 (Tex.

App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied); Frazier v. Dikovitsky , 144 S.W.3d 146, 149 (Tex. App. — Texarkana 2004, no

pet.). The Rules of Civil Procedure do

not specify the manner of verification required. But this Court has previously stated,

“Presumably, it is the same as verification by affidavit, as provided in other

rules,” and concluded, “[A]n acknowledgment of an instrument before a notary

public proves or verifies it for record.”

McGraw-Hill , 823 S.W.2d at

416 ; s ee Ameriquest Mortg. Co. , 2010

WL 1491954 , at *2 (applying McGraw-Hill definition); Seib v. Bekker , 964 S.W.2d 25, 28 (Tex.

App. — Tyler 1997, no

writ) (“[R]eturn of service of citation by a private process server . . . shall

be sworn to by the private process server before a notary public and filed with

the papers in the cause.”); see also

Frazier , 144 S.W.3d at 149 (stating that “verified” under Rule 107 requires

“some sort of an acknowledgment before a notary public”).

Analysis

Here, the return of service was

signed by Darla Brown, a licensed private process server; thus, the return of

service of citation was required to be acknowledged before a notary public. See McGraw-Hill ,

823 S.W.2d at 416 ; Ameriquest Mortg. Co. ,

2010 WL 1491954 , at *3. It was not so

acknowledged. Although Brown signed the

return and indicated her license number, this was not sufficient to satisfy the

requirements of Rule 107. See Ameriquest Mortg. Co. , 2010 WL

1491954 , at *3. Because the return of service does not

comply with Rule 107, service of process in this case was invalid and of no

effect. See McGraw-Hill , 823 S.W.2d at 416 ; Ameriquest Mortg. Co , 2010 WL 1491954 , at *4 . We conclude

that the trial court did not have personal jurisdiction over Deborah at the

time it signed the final divorce decree.

See Ameriquest Mortg. Co. , 2010

WL 1491954 , at *2 –4; see also Furst , 176 S.W.3d at 868 (explaining

that if defendant has not answered, trial court acquires jurisdiction over that

defendant solely on proof of proper service). Because no citation with “proof of service as

provided by” Rule 107 to obtain personal jurisdiction was on file when the default

judgment was granted, we hold that the trial court erred in rendering the default

divorce decree. See Tex. R. Civ. P. 107; Ameriquest

Mortg. Co. , 2010 WL 1491954 , at *4; see

also Hubicki , 226 S.W.3d at 408 (holding that default judgment rendered on

defective service cannot stand); Seib ,

964 S.W.2d at 28 (concluding affidavit that failed to verify facts relating to

act of service did not strictly comply with Rules of Civil Procedure and

judgment of trial court must be reversed).

We sustain Deborah’s first issue. [3]

Conclusion

We reverse

the judgment of the trial court and remand the case for further proceedings. [4]

Laura Carter Higley

Justice

Panel consists of

Justices Jennings, Higley, and Brown.

[1]

Clifton filed a letter notifying this Court that he

would not be filing a brief. When an

appellee does not file a brief, the appellate court may accept any factual

statement made in appellant’s brief as true, if supported by record references.

See

Tex. R. App. P . 38.1(g). In the letter, Clifton also concedes that the

return of service was not verified as required by Rule 107. Clifton agrees with appellant that the

default divorce decree should be reversed, and the case should be remanded to

the trial court for a new trial.

[2] Rule 107 does not require an

“officer” to verify the return of citation.

TEX. R. CIV. P. 107; Myan Mgmt.

Group, L.L.C. v. Adam Sparks Family Revocable Trust , 292 S.W.3d 750, 752

(Tex. App. — Dallas

2009, no pet.). An “officer” for Rule

107 purposes is a sheriff or constable. See Houston Pipe Coating Co. v. Houston

Freightways, Inc ., 679 S.W.2d 42, 45 (Tex. App. — Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“When

Rule 107 is read in conjunction with Rule 103, it is apparent that the

‘officer’ spoken of in Rule 107 is ‘the sheriff or any constable’ referred to

in Rule 103.”); see also Cont’l Cas. Co.

v. Guzman , No. 04-07-00589-CV, 2009 WL 136926 , at *5 (Tex. App. — San Antonio Jan. 21, 2009,

pet. denied) (recognizing that district clerks, like sheriffs and constables,

are considered “officers,” who, by virtue of their offices, are not required to

verify returns).

[3] Because we conclude that service of process was defective

and did not support the trial court’s personal jurisdiction over Deborah to

render the default divorce decree, we need not address Deborah’s remaining

issues. See Tex. R. App. P.

47.1 (“The court of appeals must hand down a written opinion that is as brief

as practicable but that addresses every issue raised and necessary to final

disposition of the appeal.”).

[4]

Rule of Civil Procedure 123 provides, “Where the

judgment is reversed on appeal or writ of error for the want of service, or

because of defective service of process, no new citation shall be issued or

served, but the defendant shall be presumed to have entered his appearance to

the term of the court at which the mandate shall be filed.” Thus, no new service on Deborah is required. See 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); see also Cates v. Pon , 663 S.W.2d 99, 102 (Tex. App. — Houston [14th Dist.] 1983,

writ ref’d n.r.e.) (reversing default judgment because of invalid service but

noting that no new service was necessary under Rule of Civil Procedure 123

because appellant had submitted himself to jurisdiction of trial court by

appealing default judgment).