Furst v. Smith

The court applies a de novo standard to review the trial court's authorizing substituted service based on the appellee's sworn motion and affidavit under Texas Rule of Civil Procedure 106(b) and the trial court's rendering the default judgment on liability based on the return of service under rules 107 and 108.

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Lawrence and Diane Furst brought a restricted appeal pursuant to Rule 30 of the Rules of Appellate Procedure to challenge a no-answer default judgment rendered against them and in favor of Millie and William Smith, pursuant to the Deceptive Trade and Consumer Protection Act (DTPA). The Smiths’ pleadings alleged that they entered into an agreement with the Fursts to rent a house but that the Fursts had failed to put the house in a habitable condition as promised. Hedley Karpas Properties Inc., served as listing agent for the transaction. The Smiths’ verified motion for substituted service against the Fursts alleged that, although the Fursts were no longer residents of Texas and had moved to California, they were residents of Texas and engaged in business in Texas when the lawsuit arose and therefore had sufficient contacts with Texas based on their leasing the house to the Smiths. The Smiths’ motion described two unsuccessful efforts to serve the Fursts, first through the Karpas agency and then at an address in Los Angeles County provided to them by the Karpas agency. The motion averred that Diane Furst’s father, Warren S. Bloch, was “familiar with the case” and had previously reimbursed some of the monies owed by the Fursts. The trial court granted the Smiths’ motion for substituted service and stated that service on Bloch would be reasonably effective to give the Fursts notice of the Smiths’ lawsuit. Based on the return of service on Bloch, the trial court rendered an interlocutory default judgment on liability and later rendered a final judgment awarding the Smiths damages and attorney’s fees after conducting a bench trial. The Fursts argued that the trial court erred by rendering the default judgment because the face of the record demonstrated a lack of compliance with Rules 106 and 107 of the Rules of Civil Procedure, which governed, respectively, methods and return of service of process. HOLDING:Reversed and remanded. The court observes that Rule 106(b), on which the Smiths and the trial court relied in this case, governs substituted service, and Rule 107 states the standards by which the trial court evaluates return of service. Rule 108 incorporates the standards of both rules and imposes additional requirements for service and return for defendants who, like the Fursts, are not residents of Texas. The court notes that strict compliance with the rules must affirmatively appear of record to sustain a default judgment based on substituted service. Rule 106(b) provides alternatives for substituted service when the personal service and mail options stated in Rule 106(a) have not been successful. The court states that substituted service is obtainable on motion, filed with the trial court, supported by an affidavit stating 1. the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and 2. specific facts showing that service has been attempted under either subsection of Rule 106(a) at the location named in the affidavit, but did not succeed. The Fursts contend that there is error on the face of the record because the affidavit offered by the Smiths to support substituted service on Warren S. Bloch, at his accounting office in Pittsburgh, Pa., did not sufficiently demonstrate that service on Bloch would be reasonably effective to give the Fursts notice of the Smiths’ lawsuit. The court agrees and holds that Bloch’s mere involvement in the case by sending funds to the Karpas real estate agency does not demonstrate that serving him at his office in Pittsburgh, Pa., would be reasonably effective to accomplish notice to the Fursts, in California, of the lawsuit and the allegations by the Smiths against them. The court finds that the Smiths’ affidavit states no facts on which the trial court might have relied to conclude that Bloch was the Fursts’ agent with regard to the Smiths and that service on him would, therefore, be reasonably effective to accomplish notice to the Fursts. The court therefore concludes that there was no evidence to warrant the trial court’s authorizing substituted service on Bloch pursuant to Rule 106(b)(2) and that the defects in the affidavit constitute error on the face of the record that renders the substituted service authorized by the trial court ineffective to accomplish the trial court’s personal jurisdiction over the Fursts. The Fursts also contend that there is error on the face of the record because the record does not reflect that the substituted service effected delivery of the Smiths’ second amended original petition. The court agrees and notes that neither return for service on the Fursts states that the deputy’s service of citation included service of the Smiths’ second amended original petition, despite the requirements of Rule 106(b), although the Smiths’ motion for substituted service specified that their second amended original petition was to accompany the citation. The court holds that because the return of service does not state that the requisite copy of the Smiths’ second amended original petition had been served, the face of the record does not affirmatively reflect compliance with Rule 106(b)(2) and is error on the face of the record that also renders the attempted service defective and defeats the trial court’s exercise of personal jurisdiction over the Fursts. OPINION:Elsa Alcala, J.; Radack, C.J., Alcala and Bland, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Trending Stories

 

Featured Product

Global Briefing

A weekly, curated selection of our international content from around the globe, across the business of law, in-house, regulatory, technology and more, with expert insights from our senior editors.

Learn More

More from ALM

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Privacy Policy

About Us / Contact Us / Site Map / Advertise With Us/ Customer Service / Terms of Service/ FAQ / Privacy Policy

Publications

Law Topics

Rankings

More

Law.com

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.