YVONNE T. RODRIGUEZ, Justice.
Guadalupe Perez appeals the trial court's denial of a bill of review. Perez brings three issues: (1) the trial court erred in denying the bill of review based on lack of service where evidence established the process server failed to comply with the Rule 106 order; (2) the evidence was legally and factually insufficient to support the findings of fact; and (3) the conclusions of law were erroneous as a matter of law. For the reasons set out below, we affirm.
Perez filed a petition for bill of review against Old West Capital Co. from a default judgment in July 2008. In her bill of review, Perez alleged: (1) she did not reside at 1501 N. Sylvania Avenue, Ft. Worth, where service of process was effectuated; and (2) the process server did not comply with the trial court's order for substitute service.
In the underlying case, the trial court authorized substitute service upon Guadalupe Perez pursuant to Rule 106 of the Texas Rules of Civil Procedure. The trial court's order authorized service by: "Attaching a true copy of this Order, the Citation and the Original Petition securely to the front door or entry way ..." at 1501 N. Sylvania Ave., Ft. Worth, Texas.
On the hearing on Perez's bill of review, the process server, Rudolf Jackson testified
At that time, a woman answered the door at the side entrance, she identified herself as Alice Perez. She told Jackson that Guadalupe Perez was not home but Jackson should return on a weeknight. Jackson gave Alice Perez his business card. Jackson found a telephone number for Guadalupe Perez, and left three messages to return his call. Over the next month, Jackson returned to the Sylvania address on three more occasions, once in the evening and twice in the morning. Each time, there was no answer and he left a handwritten note on the door. Subsequently, Jackson prepared his affidavit in support of substitute service pursuant to TEX.R.CIV.P. 106.
Based on his observations, Jackson believed that the side entrance was the main entry of the home. Jackson put the citation and petition in a plastic bag, sealed it, and attached the bag with duct tape to the wrought iron of the screen door at the side entrance of the house on Sylvania. In the return of service attested to by Jackson, he indicates that in May 2008, citation was served by "attaching to the front entrance of the address listed above, per Order for Substitute Service...."
Perez stated she never received notice of the lawsuit. Perez moved to Weatherford, Texas in 2007 and did not reside at the Sylvania Avenue address in 2008. Perez introduced a number of exhibits which indicated she resided with her husband in Weatherford. Perez admitted to first acquiring the Sylvania property in 2005 and conveyed it to her daughter in 2006. In October 2008, her daughter conveyed the house back to Perez. Perez said her son and daughter-in-law lived at the Sylvania house. However, Perez would return to the Sylvania house every two or three days to check the mail.
In 2007 and 2008, Perez and her husband claimed the Sylvania property as their homestead with an over 65 exemption for the property taxes. The Sylvania address was listed on Perez's driver's license. The telephone number at the Sylvania address was listed in her and her husband's name. The telephone number Jackson called was her telephone number at the Sylvania house. Perez did not receive mail in Weatherford, she used the Sylvania property as her mailing address. In 2008, Perez's mail received at the Sylvania address included: (1) property tax statements; (2) bank statements; and (3) insurance bills. Perez paid the gas and electricity bill at the Sylvania house and had a key to the property. Under direct examination she stated she did not sleep at the Sylvania house. However, during her cross examination, she admitted, occasionally, she would spend the night at the house "[i]f the weather was real bad."
According to Perez's husband, in 2008, each of their vehicles was registered to the Sylvania address. Further, he, like Perez, used the side door or, sometimes, a back door but not the front door for entry into the home. Although he accompanied Perez almost every time she went to the house, he did not recall finding any papers attached to the side door. However, he stated he has Alzheimer's and "can't even remember my name sometimes."
The trial court entered an order denying the bill of review on October 13, 2011. Perez requested findings of fact and conclusions of law and a motion to reconsider. The court issued one finding of fact and two conclusions of law:
The motion to reconsider was overruled by operation of law. This appeal follows.
Perez first contends that the trial court erred by denying the bill of review, based on the process server's failure to strictly comply with the order permitting substitute service. Specifically, Perez argues Jackson failed to comply with the order by taping the citation and petition to the side entrance instead of the front door.
A bill of review is an independent action to set aside a judgment that can no longer be challenged by a motion for new trial or appealed. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999). A bill of review is usually a direct attack on a previous trial court's judgment that is no longer subject to an appeal or a motion for new trial. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex.2010); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Pursley v. Ussery, 937 S.W.2d 566, 567 (Tex.App.-San Antonio 1996, no writ).
In reviewing the granting or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of discretion. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The trial court may be reversed for abusing its discretion only if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Id. at 293. A trial court does not abuse its discretion as long as its decision is within the zone of reasonable disagreement. PPC Transp. v. Metcalf, 254 S.W.3d 636, 641 (Tex.App.-Tyler 2008, no pet.), citing Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618, 632 (Tex.App.-Amarillo 2000), rev'd on other grounds, 124 S.W.3d 188 (Tex.2003).
However, the absence of proper service modifies the elements of a bill of review. When a party has not been properly served, that party "is entitled to a bill of review without a further showing, because the Constitution discharges the first element, and lack of service establishes the second and third." Ross, 197 S.W.3d at 797. This is true even if a party becomes aware of the proceedings and fails to participate. A party, who has acquired knowledge but was not properly served, has no duty to participate in the proceedings. Caldwell v. Barnes, 154 S.W.3d 93, 97 n. 1 (Tex.2004); Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex.1990)("[M]ere knowledge of a pending suit does not place any duty on a defendant to act."). Although diligence is required from properly served parties or those who have appeared, those not properly served have no duty to act. Ross, 197 S.W.3d at 797-98.
Rule 106 of the Texas Rules of Civil Procedure provides for substituted service in certain circumstances:
TEX.R.CIV.P. 106(b).
The Supreme Court of Texas has held actual notice is not only unnecessary, but is in fact, contrary to Rule 106(b)'s underlying rationale:
State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298, 298-99 (Tex.2003).
Rule 107 requires an adequate return of service before a court may grant a default judgment. TEX.R.CIV.P. 107(a)-(h). Rule 107 provides that "[w]here 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(f). In those cases where the order for substituted service does not set out a specific manner of proof of service, Rule 107 controls what constitutes proper service. Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex.App.-San Antonio 1999, no pet.)("Although substituted service was authorized under rule 106 in this case, the order did not specify a different manner of proving service; therefore, proof of service in accordance with rule 107 is required.").
Rule 106 allows an individual to be served "where the defendant can probably be found...." TEX.R.CIV.P. 106(b). Service may be effected on a defendant wherever he may be found within the county and is "not limited to the address mentioned". Garcia v. Gutierrez, 697 S.W.2d 758, 760 (Tex.App.-Corpus Christi 1985, no pet.). See also Magan v. Hughes Television Network, Inc., 727 S.W.2d 104, 105 (Tex.App.-San Antonio 1987, no pet.) (Substituted service at the address where defendant's children lived and "it was shown that other communications reached him by delivery at the same place.").
If a court finds that the rules of service have been strictly adhered to, the recital's in the return by the process server creates a presumption that service was accomplished. Huffeldt v. Competition Drywall, Inc., 750 S.W.2d 272, 273 (Tex.App.-Houston [14th Dist.] 1988, no writ); see also Min v. Avila, 991 S.W.2d 495, 501 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The presumption can be rebutted in a bill of review. Huffeldt, 750 S.W.2d at 273; Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573-74 (Tex.2006). The party asserting lack of service must corroborate it with "evidence of supporting facts and circumstances" by a preponderance of evidence. Min, 991 S.W.2d at 501; Ward v. Nava, 488 S.W.2d 736, 738 (Tex.1972).
At the outset, we find the term "front door" refers to what an objective visitor would regard as being the primary entrance. C.f. State v. Somfleth, 168 Or.App. 414, 8 P.3d 221, 226 n. 7 (2000) ("We use `front yard' or `front door' to refer to what an objective visitor would regard as being the primary entrance to the property."). The plain language of the Rule 106 order allowed for service to be accomplished by "[a]ttaching a true copy of the Order, the Citation and the Original Petition securely to the front door or entry way" at the same address.
Unequivocally, the side door was the primary entry to the house. Perez and her husband attested to this. Jackson observed the "front door" to the Sylvania address was inaccessible from the sidewalk. The front door was locked with a rusty padlock and barred by the wrought iron restraints. Jackson correctly surmised the side entry was the main entry to the house because it had a sidewalk and steps leading from the curb to the side entrance. Jackson securely attached the citation and petition to the side door. He prepared and filed a return of service which indicated service was effectuated by "attaching to the front entrance of the address listed above, per Order for Substitute Service...."
Clearly, Jackson complied with the court's Rule 106 order by attaching the citation "securely to the front door or entry way."
A strict reading of the term "front door" in Rule 106 in the instant case leads to an incongruous possibility. If Jackson had attached the citation to the actual "front" door, the documents would have had less opportunity than the side door in achieving actual notice.
Perez argues the return of service, in which Jackson indicates he affixed the citation to the front door, was facially incorrect because it was actually attached to the side entrance. We do not agree the service of process in this case was legally deficient.
Other courts of appeal have found that discrepancies on the return of service do not render service ineffective. For example, minor variations in names, such as omission of periods or corporate abbreviations, do not render service ineffective. See, e.g., Myan Management Group, L.L.C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 753 (Tex.App.-Dallas 2009, no pet.) (dropping "Group, L.L.C." and changing "L.L.C." to "LLC" are not fatal to effective service). However, alterations of a name, such that a court of appeals could not decipher whether the person listed on the service was the same as both names indicated, do render service ineffective. See, e.g. Lytle v. Cunningham, 261 S.W.3d 837, 840-41 (Tex.App.-Dallas 2008, no pet.) ("Chris" and "Christopher" are distinct names). Listing a different address on the return and citation will not render service invalid. See, e.g., Garcia v. Gutierrez, 697 S.W.2d 758, 760 (Tex.App.-Corpus Christi 1985, no writ).
In a recent case, In re M.C.B., 400 S.W.3d 630 (Tex.App.-Dallas 2013, no pet.) (op. on reh'g) a party was served using substitute service under Rule 106. The return of service indicated the citation was delivered "by 106 to door of ... address." However, at the default judgment hearing, the process server testified that he had duct-taped the citation to the front door. Id. at 634. The court, in reviewing the trial court's grant of summary judgment on the bill of review, held the trial court was allowed to consider the testimony of the process server. Further, the trial court could conclude the server acted in strict compliance with the Rule 106 order. Id. at 635. Appellant's argued the return of service was defective. In their view, the trial court's order required the citation be "attached or affixed" was not substantially complied with when the return of service stated "by 106 to door." Id. The court overruled that argument and affirmed the trial court's denial of the bill of review.
Additionally, while Perez maintained she lived in Weatherford, the court had sufficient evidence to find that service of process could be effected upon her at the Sylvania address. Her son and daughter-in-law lived at the home, her mail was received there, and she had claimed the address as her homestead. She and her husband travelled to the house at least two times a week, staying overnight occasionally. The address was listed on her driver's license, the telephone was in her name, she paid two of the utilities, and she had a key to the home. Perez's first issue is overruled.
Perez's second and third issues contend the evidence was legally and factually insufficient to support the findings of fact and the conclusions of law and were erroneous as a matter of law. We will consider these issues jointly.
Findings of fact by a court have the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).
We may sustain a legal sufficiency challenge only when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable fact finder could and disregard evidence contrary to the finding unless a reasonable fact finder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain,
We review a trial court's conclusions of law de novo to determine if the trial court drew the correct legal conclusions from the facts. Bundren v. Holly Oaks Townhomes Ass'n, Inc., 347 S.W.3d 421, 429-30 (Tex. App.-Dallas 2011, pet. denied); Wright Grp. Architects-Planners, P.L.L.C. v. Pierce, 343 S.W.3d 196, 199 (Tex.App.-Dallas 2011, no pet.). We must uphold conclusions of law if "any legal theory supported by the evidence sustains the judgment." Bundren, 347 S.W.3d at 430. We will reverse the trial court's judgment only if the conclusions of law are erroneous as a matter of law. Kaplan v. Kaplan, 129 S.W.3d 666, 668 (Tex.App.-Fort Worth 2004, pet. denied).
Perez first challenges the trial court's sole Finding of Fact that Perez was duly served by substitute service on May 20, 2008 at 1501 N. Sylvania Road, Fort Worth, Tarrant County, Texas 76111. Perez contends Jackson did not comply with the court's Rule 106 order and the trial court disregarded the "strict compliance" service of process requires. She asserts the evidence allowed for only a single inference — there was no compliance with the Rule 106 order. We disagree.
As discussed above, the uncontested evidence demonstrates the "front door" was not used for entry. Jackson's observations and Perez's testimony corroborated the fact only the side door was used by Perez and her family as the primary entrance. Jackson attached the citation and the accompanying petition to the main entry or "front entrance." The trial court's Rule 106 order allowed process to be served on the "front door or entry way." While the trial court expressed some concern with Jackson's language on the return of service, it found the citation was properly attached to the primary entrance of the Sylvania residence. While Perez was adamant she and her husband lived in Weatherford, there was sufficient evidence for the court to find that the Sylvania address was where Perez could be found.
We conclude there is more than a mere scintilla of evidence supporting the trial court's finding. After consideration and weighing all the evidence presented, we are satisfactorily convinced the credible evidence supporting that finding is not so weak as to be clearly wrong and manifestly unjust. Pool, 715 S.W.2d at 635. We hold the sole Finding of Fact to be both legally and factually sufficient. Perez's second issue is overruled.
Perez next challenges the two Conclusions of Law issued by the court, which is reviewed de novo. As previously discussed, there is sufficient evidence to support the trial court's finding the method of service complied with the court's Rule 106 order. Because the trial court's Finding of Fact supports Conclusions of Law Number One, the trial court did not err in reaching that challenged conclusion.
After extensive review of the record, we hold that the trial court did not err by entering Conclusions of Law Number Two. Perez asserts she did not receive notice. She never used the front door for entry into the home but only the side entrance. She visited her family often at the home and occasionally spent the night there. Mr. Perez could not recall finding any papers attached to the side entrance. The only corroboration to Perez's assertion was her husband's testimony, but, sadly, he has Alzheimer's and "can't even remember [his] name sometimes."
In light of the evidence presented, Conclusions of Law Number Two was not so
Having overruled each of Perez's issues, the judgment of the trial court is hereby affirmed.
