Restricted Appeal Default Judgment Conditions In Texas
To obtain a reversal of an underlying judgment in a restricted appeal, a party must satisfy four elements:
(1) a notice of restricted appeal must be filed within six months after the judgment is signed;
(2) by a party to the lawsuit;
(3) who did not participate in the hearing that resulted in the judgment of which the party complains and did not file a timely post-judgment motion;
(4) error must be apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex. App.-Houston [1st Dist.] 1999, no pet.).
In this restricted appeal, elements one through three are not contested; the argument centers around the fourth element-whether error is apparent on the face of the record.
In a direct attack on a default judgment, there are no presumptions in favor of valid issuance, service, and return of citation. See Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).
In a restricted appeal, defective service of process constitutes error apparent on the face of the record. See id. at 153.
For a default judgment to be sustained based on substituted service, the burden is on the plaintiff to prove that the defendant was served in the manner required by the applicable statute. See ONXY TV v. TV Strategy Group, LLC, 990 S.W.2d 427, 429 (Tex. App.-Texarkana 1999, no pet.); Bank of Am., N.T.S.A. v. Love, 770 S.W.2d 890, 891 (Tex. App.-San Antonio 1989, writ denied).
Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of service. TEX. R. CIV. P. 106(b).
Rule 107 states that "where 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. When an out-of-state party is served, the return of citation must be verified. See TEX. R. CIV. P. 108.
Service of process must be performed in strict compliance with appropriate statutory provisions to support a default judgment. See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Armstrong v. Minshew, 768 S.W.2d 883, 884 (Tex. App.-Dallas 1989, no writ).
Virtually any deviation will be sufficient to set aside a default judgment in a restricted appeal. See Becker v. Russell, 765 S.W.2d 899, 901 (Tex. App.-Austin 1989, no writ).
Strict compliance is particularly important when substituted service under rule 106 is involved. See id. at 900. When a trial court orders substituted service pursuant to rule 106, the only authority for the substituted service is the order itself. See id.; Broussard v. Davila, 352 S.W.2d 753, 754 (Tex. Civ. App.-San Antonio 1961, no writ).
Therefore, the requirements set forth in the order must be strictly followed. See Broussard, 352 S.W.2d at 754.
Any deviation from the trial court's order authorizing substituted service necessitates a reversal of the default judgment based on service. See Becker, 765 S.W.2d at 901.
The return of service is considered prima facie evidence of the facts asserted therein. See Primate, 884 S.W.2d at 152.
"The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. the weight given to the return is no less when the recitations impeach the judgment than when they support it." Id.