What Happened in the Case
The plaintiff brought her case in Harris County, Texas in September 2020. In her complaint, she alleged that she was a passenger in a truck driven by the defendant. Both parties were involved in a rollover accident. The plaintiff alleged that the defendant’s driving caused the crash and her resulting injuries. She sought damages for her medical expenses, lost wages, and mental anguish.
After six attempts by a process server to serve the defendant in person, the plaintiff asked the court to allow substituted service. The trial court granted this request on November 7, 2020.
In Texas, substituted service allows a party to be served by leaving a copy of the service documents with anyone aged 16 or older at the party’s address or “by any other means.” Here, the court agreed that the plaintiff could leave the documents with someone over 16 at the defendant’s home or could leave a copy of the citation and petition on the defendant’s front door.
Three days later, on November 10, the trial court released a second order, adding that the citation and petition also needed to be sent by certified and regular mail to the defendant’s home. The court stated it would not consider service “perfected” until the mailing requirement was met. The November 10 order also voided the November 7 order.
The court received a return of service in November 2020, but that return did not state whether the mailing requirements were met. The return of service was attached to a copy of the voided November 7 order and did not mention the valid November 10 order.
The case proceeded to a default judgment, resulting in an award of over $2 million made in the plaintiff’s favor. The defendant appealed, arguing that the service of process was defective.
The Appellate Court’s Decision
The Court of Appeals for the First District of Texas issued a memorandum opinion in December 2023. In it, the court held that “the face of the record establishes defective service of process” and reversed the default judgment.
In its memorandum opinion, the appeals court noted that the defendant met Texas’s requirements for filing a restricted appeal. A restricted appeal is used when a party wishes to appeal the results of a proceeding in which that party did not participate directly or via counsel. The court found that the defendant met all four requirements.
Crucially, the court found that the defendant met the fourth requirement - identifying an error on the face of the record. By alleging that he was not properly served with process because the plaintiff did not meet the mailing requirement, the court found, that the defendant alleged an error on the face of the record.
The court also sided with the defendant on the question of service. The appellate court wrote, “We conclude that error appears on the face of the record because Rule 106’s requirements [as expressed in the trial court’s November 10 order] were not met.” Because the plaintiff did not meet these requirements, the service of process was “invalid and of no effect.” The trial court thus never had personal jurisdiction over the defendant and could not render a default judgment that applied to him.
In the appeal, the plaintiff was represented by Derek M. Causey of Hope & Causey PC. The defendant was represented by Vincent Vecchione of the Law Office of Arnold R. Lopez & Associates PLLC.
Takeaways for Attorneys
Service of process is so often a routine matter given little thought. Typically, the process is so straightforward that attorneys needn’t handle it themselves - they can pass it off to one of the thousands of process servers who handle that very function.
When service doesn’t proceed as expected, things can become complicated. Here, a combination of unexpected difficulties in the serving process and a hasty response following a trial court’s order led to frustration, expense, and ultimately delay for the plaintiff and defendant. Managing the facts of this case - the existence of the default judgment and its overturning - may also complicate arguments in any future attempt to deal with the merits of the underlying case.
