Domanick Davis A/K/A Domanick Williams and Tamika Davis v. George R. and Mianna Martin

Citation: Not availableDocket: 01-07-00831-CV

Court: Court of Appeals of Texas; February 11, 2009; Texas; State Appellate Court

Original Court Document: View Document

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On February 12, 2009, the Court of Appeals for the First District of Texas addressed the appeal by Domanick Davis (a/k/a Domanick Williams) and Tanika Davis against a no-answer default judgment rendered on June 25, 2007, in favor of George R. Martin and Mianna Martin. The appeal centered on whether the trial court had in personam jurisdiction over the Davises due to allegedly defective service of process.

The Martins had sued the Davises, asserting that they obstructed natural drainage from the Martins’ property, leading to flooding. The lawsuit sought various forms of relief, including damages and injunctive measures. The initial petition was filed on March 26, 2007, with an amended petition following on April 12, 2007. After multiple unsuccessful attempts to serve the Davises personally, the Martins filed a motion for substitute service on May 3, 2007. They requested permission to serve the Davises by posting the petitions at their residence, 5930 Tammy Drive in Manvel, Texas, arguing that the Davises occasionally visited the property and were likely to receive notice through a real estate agent who had been in contact with them.

The motion included an affidavit from Brazoria County Constable Willie Howell, detailing seven unsuccessful attempts to serve the Davises and affirming that the real estate agent was in communication with them. However, the constable's return was not referenced in the motion for substitute service. The appellate court ultimately reversed the trial court's judgment and remanded the case, indicating that the service of process was defective, which impacted the court's jurisdiction over the Davises.

A return dated April 28, 2007, indicated five unsuccessful attempts to serve the Davises, without specifying the addresses of these attempts. Additional attempts likely noted on a subsequent page also lacked address details. A neighbor's statement suggested the Davises were rarely at their residence and might be in Louisiana, while a real estate agent indicated the home was for sale but confirmed the Davises still lived there. The trial court approved a motion for substitute service on the same day it was filed, without conducting a hearing or taking testimony. The court's order acknowledged unsuccessful service attempts and authorized posting the Amended Original Petition at 5930 Tammy Drive, Manvel, Texas. On May 9, 2007, copies of the petition and injunction application were posted at the specified location, along with individual citations for each defendant. A default judgment was granted against the Davises on June 25, 2007, under the mistaken belief that an answer had been filed, although the judgment accurately noted no answer was received. The court confirmed jurisdiction and acknowledged that the Davises were duly cited but did not appear. The last known address was recorded as 5930 Tammy Drive, and it was confirmed that the Davises were not military members. Following the judgment, notices sent to the Davises were returned undeliverable due to the lack of a mail receptacle and no forwarding address. On July 25, 2007, the Davises filed a motion for a new trial, claiming improper service under Texas Rule of Civil Procedure 106 and alleging deficiencies in the affidavit supporting the motion for substitute service.

The Davises contended that they did not reside at 5930 Tammy Drive, Manvel, Texas, but rather maintained a primary residence in Louisiana, which was known to the plaintiffs. They asserted that no service was attempted at their Louisiana home, and that the Manvel address was merely a secondary residence, unoccupied at the time service was attempted. Additionally, they claimed that the constable’s affidavit supporting the motion for substitute service failed to identify their usual abode or other likely locations for them. The Davises noted that the Martins were aware they had legal representation but did not inform their counsel about the substitute service motion, the motion for default judgment, or the resulting default judgment. They filed a motion for a new trial without attaching any evidence, and a hearing held on August 27, 2007, resulted in no evidence being presented. The trial court denied their motion on September 7, 2007.

The Davises argued that the trial court lacked in personam jurisdiction due to defective substitute service, which did not comply with Texas Rule of Civil Procedure 106. They highlighted that the affidavit failed to assert that 5930 Tammy Drive was their usual place of abode, rendering the default judgment invalid and necessitating remand. They emphasized that a default judgment requires clear evidence of jurisdiction over both the subject matter and parties, and if proper service is not established, the trial court cannot impose a judgment. Strict compliance with service rules is essential, as actual notice does not cure deficiencies in service, and any default judgment based on inadequate service is subject to reversal upon appeal. The failure to demonstrate compliance with procedural requirements invalidates any attempt at service.

A default judgment against a defendant not served according to legal requirements is improper and must be overturned. Texas Rule of Civil Procedure 106(b) allows for substitute service if an affidavit is provided that indicates the defendant's usual business or residence location and details unsuccessful attempts at service under Rules 106(a)(1) or (a)(2). Substitute service is invalid without such an affidavit. The court's authority to grant personal jurisdiction through substitute service hinges on strict compliance with these statutory requirements. In this case, Howell’s affidavit fails to meet the necessary criteria: it does not identify the Davises' usual locations or confirm that service attempts were made at the correct address of 5930 Tammy Drive. Additionally, it lacks specifics on the service attempts, including the addresses used and the dates of those attempts. Consequently, the trial court's order permitting service at an incorrect address undermines the validity of the service and the resultant default judgment.

Strict enforcement of Rule 106(b) is required without presumptions favoring valid issuance, service, or return of citation. Howell's affidavit did not meet the stringent criteria of Rule 106(b), failing to support the trial court’s order for substitute service. Previous cases (In re J.M.I, In re Sloan, Coronado v. Norman, Olympia Marble & Granite, and Garrels v. Wales Transport, Inc.) illustrate that affidavits lacking specific details, such as the number of attempts, calendar dates, or the defendant's usual place of abode, are considered fatally defective. Consequently, the attempted service on the Davises by posting citations at 5930 Tammy Drive was deemed invalid and ineffective. As a result, the trial court lacked in personam jurisdiction over the Davises, making the default judgment improper. The court sustained the Davises' appeal, reversed the default judgment, and remanded the case. Under Texas Rule of Civil Procedure 123, no new service of process is necessary, as the defendant is presumed to have appeared in the court proceedings due to the appeal. The judgment has been reversed and the case is remanded for further proceedings, with the panel consisting of Justices Taft, Bland, and Sharp.