DISSENTING Opinion Filed November 29, 2021
In the
Court of Appeals
Stith Avatrict of Texas at Dallas
No. 05-19-01480-CV
PRO-FIRE & SPRINKLER, L.L.C. AND JAMES C. LANKFORD,
Appellants
V.
THE LAW COMPANY, INC., Appellee
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-18-18762
DISSENTING OPINION
Before Justices Myers, Osborne, and Carlyle
Dissenting Opinion by Justice Carlyle
The majority here reverses and remands a default judgment, thus rewarding a
service-avoiding defendant and his company for skirting the rule of law. To get there,
the majority elevates an ungrammatical reading of the return’s text by misreading
the phrase “in person” and goes beyond what the law governing return of service
requires. I disagree there is service error on the face of the record and therefore, I
respectfully dissent in this restricted appeal. See Ex parte E.H., 602 S.W.3d 486, 497
(Tex. 2020) (restricted appeal appellant must establish error on face of record to
prevail).
Plaintiff The Law Company sued Pro-Fire & Sprinkler for breach of a contract
as to which James Lankford personally guaranteed Pro-Fire’s performance. After
four attempts at serving Lankford and Pro-Fire at Lankford’s home, and after a
process server twice spoke to Lankford’s wife, who confirmed he lived there, TLC
moved for substituted service on both defendants on January 22, 2019. The trial court
signed an order authorizing substituted service on Lankford, as follows:!
After considering Plaintiff's Motion for Substituted Service and supporting Affidavit, it is ordered
by the Court that the Motion is granted, and that service upon Defendant, JAMES C. LAN KFORD, be
made by a person authorized by law to serve process by delivering a true copy of the Citation and Plaintiff's
Original Petition to anyone over sixteen years of age at the Defendant's usual place of abode, 1165 Brent
Avenue, Terrell, Texas 75160, or in the event no one over sixteen is present when service is attempted,
by attaching copies of the Citation and Plaintiff's Original Petition to the front door at 1165 Brent Avenue,
Terrell, Texas 75160.
IT IS FURTHER ORDERED that the return of service on the Citation and Plaintiff's Original
Petition state when and how the Citation and Plaintiff's Original Petition were served, and be signed and
sworn to by the person making the return of service.
The Pro-Fire order was similar:
Therefore, the Court GRANTS the motion and authorizes substituted service on Defendant
Pro-Fire & Sprinkler, LLC by securing a copy of the citation and Original Petition to the front door
of James C. Lankford’s, the Manager of Defendant Pro-Fire & Sprinkler, LLC, residence located at
1165 Brent Avenue, Terrell, Texas 75160.
' The 95th Judicial District Court was without a permanent judge at this time due to now-Justice Ken
Molberg’s election to this Court. Senior District Judge Jim Jordan, sitting by assignment, signed the order
as to Lankford on January 28, 2019, but did not sign an order as to Pro-Fire. Magistrate Judge Sheryl Day
McFarlin signed the order as to Pro-Fire on March 22, 2019.
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As to Lankford, the return stated:
and was executed at 1165 BRENT AVE, TERRELL, TX75160 within the county of KAUFMAN at
12:55 PM on Fri, Feb 01 2019,"by delivering a true copy to the within named
JAMES C, LANKFORD, BY ATTACHING A TRUE COPY OF THE CITATION AND PLAINTIFF'S ORIGINAL PETITION TO THE
FRONT DOOR AT 1165 BRENT AVENUE, TERRELL, TEXAS 75760, PURSUANT THE ORDER FOR SUBSTITUTED SERVICE
in person, having first endorsed the date of delivery on same.
The Pro-Fire return stated:
and was executed at 1165 BRENT AVE, TERRELL, TX 75160 within the county of KAUFMAN at
05:40 AM on Thu, Apr 25 2019, by dellvering a true copy to the within named
PRO-FIRE ANO SPRINKLER, LLC., BY SECURING A COPY OF THE CITATION AND ORIGINAL PETITION TO THE FRONT
DOOR OF JAMES C. LANKFORD'S, THE MANAGER OF DEFENDANT PRO-FIRE & SPRINKLER, LLC, RESIDENCE LOCATED
AT 1165 BRENT AVENUE, TERRELL, TEXAS 75160, PER THE ORDER ON PLAINTIFF'S MOTION FOR SUBSTITUTED
SERVICE ON DEFENDANT PRO-FIRE & SPRINKLER, LLC,
in person, having first endorsed the date of delivery on same.
A “return should be given a fair, reasonable, and natural construction to its
intent and meaning.” Cuetara v. DSCH Capital Partners, LLC, No. 03-16-00078-
CV, 2016 WL 3917181, at *3 (Tex. App.—Austin July 14, 2016, no pet.) (mem. op.).
The majority does not do so, as described below.
Over 16
The majority begins by faulting the Lankford return for failure to strictly
comply with the substituted service order because the return fails to recite that no
one over the age of sixteen was present. The majority views this recitation as a
precondition to the process server being able to access the second form of service
the substituted service order authorizes and which the server used, posting to the
front door.
In a nearly identical complaint, the defaulted defendant in Norton v. Lucio,
No. 03-03-00074-CV, 2003 WL 21402021 (Tex. App.—Austin June 19, 2003, pet.
denied) (mem. op.), complained the return failed to indicate whether the service
recipient was a person over age sixteen or whether a copy of the order was served.
The Austin court of appeals turned those complaints aside because the order did not
“require this information to be affirmatively recited on the return.” /d. at *3. The
order said “that service of citation may be made on Defendant, FRED NORTON dba
AUSTIN AUTO SPORTS, by leaving a copy of the citation, with a copy of the
petition and a copy of this order attached, with any person 16 years of age or older
at: Defendant’s usual place of business: [address].” /d. at *2. The return said service
occurred “at [address], within the county of Travis [where] on the 23 day of Apr, 02,
at 9:50 o’clock A.M. [when], by delivering to the within named Fred Norton DBA
Austin Auto Sports by delivering to Alison Cranford.” /d. at *3. The court of appeals
concluded “the errors complained of were not actually errors at all... , the district
court’s order did not require that this information be stated on the return,” and to
hold the return insufficient would be “requiring more from the return” than the
district court did. /d. at *4.
I agree with this reasoning, and it counsels affirmance here. The trial court’s
order did not require any particular recitation in the return, though the court had
discretion to specify what was in the return, and the return otherwise specifically
recited every required item. See id. at *3 (citing Patel v. Park Plaza Hosp., 866
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S.W.2d 645, 646 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (same issue,
same outcome)).
Recent authority from our supreme court also supports this reasoning. In
Spanton v. Bellah, the supreme court weighed in on whether a return reciting service
to the correct house number but on “Heather Hills Drive” instead of “Heathers Hill
Drive,” as the substituted service order authorized, invalidated service. 612 S.W.3d
314, 315-16, 318 (Tex. 2020) (per curiam). The court concluded the misplacement
of the letter “s” rendered the return out of strict compliance with the order, even
though “one might reasonably presume or believe” defendants received service. /d.
at 318. There was no record evidence demonstrating the defendants received service,
and thus the court could not presume in favor of service. /d. Notably, in explaining
the standard for what would render a return out of strict compliance with a
substituted service order, the supreme court stated “Cuetara properly distinguishes
the types of discrepancies that may invalidate substituted service from those that are
mere ‘minutest details.’” /d. at 317.
In Cuetara, the complaint was that the return failed to specify that service
occurred at the “front office” of defendant Cuetara’s usual place of business. 2016
WL 3917181, at *2. The order authorized service “by personally delivering a copy
of the citation and original petition to Florencio Cuetara’s usual place of business,
15251 Barranca Parkway, Irvine, California 92618, and leaving such process with
the receptionist or such other person over the age of sixteen at the front office at such
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address.” /d. at *1. Thus, as here, the order did not specify “how proof of service
should be made or that it had to include every detail listed in the order for substituted
service.” See id. at *2. The return indicated service occurred by:
delivering a true copy of the Citation and Original Petition; Order
Authorizing Substituted Service with the date of service endorsed
thereon by me, to: John Doe as Manager, a person employed therein
and authorized to accept service for Florencio Cuetara at the address
of: 15251 Barranca Parkway, Irvine, CA 92618, the within named
person’s usual place of Work, in compliance with State Statutes.
Additional Information pertaining to this Service: 4/21/2015 9:55
am Documents served upon a manager who refused to provide his
name. He did confirm that Mr. Cuetara was in the office but would not
be willing to accept the documents personally. BMW, CA plate
6ZVB897 parked in the lot that 1s believed to be the Mr. Cuetara’s
vehicle.
Description of Person Served: Age: 35, Sex: M, Race/Skin Color:
Hispanic, Height: 5’10”, Weight: 175, Hair: Black, Glasses: -
The court of appeals noted that the “language in the order suggests that the
trial court was more concerned with the type of person to be served at Cuetara’s
business address than with the specific room for service within that address.” /d. at
*2—3 (citing Norton, 2003 WL 21402021, at *4). The court’s conclusion that service
was not invalid fell directly in line with the reasoning in Norton and Patel. See id. at
*3,
Spanton and Cuetara lead to the conclusion that the “person over age 16”
language here is but a minute detail that the order did not require to be present in the
return. First, like in Cuetara, the substitute service order’s language gives no
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indication the trial court here required verification that no one over age 16 was
present. According to the majority, the fact that the only part of the order in bold
typeface is the phrase “in the event no one over sixteen is present when service is
attempted” somehow means the trial court was concerned with knowing whether a
person was present over or under that age when the process server effected service.
But this is a presumption the majority makes against service, plain and simple.”
And, in any event, the substitute service order gave two options: (1) serve
anyone over sixteen years of age at Lankford’s address or (2) if no one over sixteen
was present, attach the documents to the front door. The operative portion of the
order concerned achieving service at the Terrell address, either by (1) or by (2), and
the order did not specify “how proof of service should be made or that it had to
include every detail listed in the order for substituted service.” See id. at *2. The
order stated only that the return must “state when and how the Citation and Plaintiff’s
Original Petition were served, and be signed and sworn to by the person making the
return of service.” By stating that “at 12:55 PM on Fri., Feb 01 2019” the server
served “JAMES C. LANKFORD, BY ATTACHING A TRUE COPY OF THE
CITATION AND PLAINTIFF’S ORIGINAL PETITION TO THE FRONT DOOR
? The majority correctly states that we do not draw presumptions in favor of valid issuance, service,
and return of citation in the face of an attack on a default judgment, see Uvalde Country Club v. Martin
Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam), but this does not authorize us to
make presumptions or inferences against service.
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AT [ADDRESS] PURSUANT TO THE ORDER FOR SUBSTITUTED SERVICE,”
the return strictly complied with the “when and how” requirement.
The majority elevates standard process service rule language allowing
substituted service on any person over age sixteen at the location, see TEX. R. CIv.
P. 106(b)(1), to a specific requirement of the substituted service order. I disagree
with this court-made expansion of the rule. And notably, the majority cites no case
holding that a return must recite that no one over age 16 was present to strictly
comply with standard rule 106(b)(1) language contained in the order.
Internal inconsistency
Next, the majority concludes both the Lankford return and the Pro-Fire return
fail due to internal inconsistency. Though a natural reading of the returns should give
no reader pause in concluding the documents were posted on the front door, the
majority elevates the phrase “in person” to overpower the very specific service facts
the return recites in the four lines before those two words.
The majority also indulges in a presumption that “in person” somehow means
that the process server handed the citation to a person, to the same effect of ignoring
all the specific service facts the returns recite. I cannot agree that we are presented
with an “internal inconsistency.” To me, there is no inconsistency, and the return
language strictly conforms to the order by telling us the server posted the documents
to the correct front door.
The majority relies heavily on the conclusion in Dolly that the return there
failed to strictly comply with the substituted service order. Dolly v. Aethos Commc’ns
Sys., Inc., 10 $.W.3d 384 (Tex. App.—Dallas 2000, no pet.). Several differences
between this case and that one compel a different result here. Here’s the Dol/y return:
RETURN
Came to hand on __6" day of July , 19.98 ,at_9:00 o'clock A.M
Executed at _ 16220 Lamplighter CT, NO. 1228 , Southfield, M
County of _ Wayne at_ 9:20 o'clock P.. M. on the 10° day of
48075 _, within the
__August _, 19.98, by delivering to the within named _KIRK DOLLY _ _
each, in person a true copy of this Citation in Cause No.____ DV-98-03689 _, together with the
accompanying copy of this pleading, having first endorsed on same date of delivery.
TOTAL FEES
For Serving Citation $65.00 /s! Gerald Boryez _
WAYNE _ County
iERALD BORYCZ _
Deputy/Authorized Person
of
By __
On this day personally appeared GERALD BORYC? known to me to be the person whose
name is subscnbed on the foregoing instrument and who has stated under oath ths xe
the Citation in the above numbered cause pursuant to the Texas Rules of Civil Procedure.
lg! Lee Borvez
Notary Public LEE BORYCZ County WAYNE
(Must be verified if served outside the State of Texas.)
LEE BORYCZ
NOTARY PUBLIC - WAYNE COUNTY, MI
*POSTED TO FRONT DOOR* MY COMMISSION EXPIRES 12/24/00
[FILE STAMP]
The operative portion of the Do//y return stated service occurred “by
delivering to the within named KIRK DOLLY each, in person a true copy of this
Citation.” That’s the first difference from this case: the Dolly return started with a
statement that service occurred in person. Then, at the bottom of the return, below
the verification, the return stated “*POSTED TO FRONT DOOR*.” But, as the
Dolly opinion pointed out, this was an out-of-state return of service that had to be
verified. /d. And the verification only verified the “foregoing instrument,” which this
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Court concluded did not include anything below the verification. Thus, this Court
held the verified, main portion of the service return failed to strictly comply with the
substituted service order because that part of the return stated service occurred in
person.*
This major difference between the Dolly return and the returns before us
means Dolly does not require reversal here. Here, as noted, the specific service facts
indicate compliance with the substituted service order—the returns stated service
occurred by posting the documents to the front door. I disagree that including “in
person” directly after the returns’ statement that the documents were posted to the
front door introduces a meaningful inconsistency in this case. At most, in
grammatical context, it recites the obvious: that the server posted the documents to
the front door herself in person.
The majority’s reading actually imposes a presumption that “in person”
always must mean something like “the process server handed documents to the other
person, who was also physically present.’* But this just doesn’t follow in our case.
The more natural meaning of the returns here is, as TLC suggests, that the process
server placed the documents on the front door herself in person. Nothing in the
3 That conclusion raises the interesting question whether personal service becomes ineffective when a
court authorizes substituted service via rule 106(b), but we are not presented that question today.
4 See supra note 2.
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record gives the reader any indication that anyone else was present to have received
the documents, and the returns only indicate that documents were posted to the door.
And the majority speculates to support its conclusion. Discussing the returns,
the majority manufactures some significance from the fact that some of it is
presented in all caps and some 1s in regular title caps format. The majority 1s open
about its speculation, too, telling us “there are two different fonts in the affidavit:
one font (not in all caps) appears to set up a form for in-person service, and another
font (in all caps) appears to be information the process server filled in.” Using
“appears to” twice to support this conclusion means it is a guess, a presumption
against valid service, and it is an unauthorized method to reach the conclusion here.
I also have concerns with the Dolly opinion’s analytical inconsistency. On the
one hand, Dolly characterizes the return as internally inconsistent because it recites
that service occurred in person and then at the bottom says citation was posted to the
front door. But in its operative analysis, this Court concluded that because
“*POSTED TO THE FRONT DOOR*” wasn’t verified as required, the trial court
could not rely on that statement to reflect compliance with the substituted service
order. So this Court could say the return was inconsistent because it stated both “in
person” and “*POSTED TO THE FRONT DOOR®*” but no one else could rely on
the front door statement because it wasn’t verified.
I am also disinclined to follow Dolly because the returns here are much more
detailed than “*POSTED TO THE FRONT DOOR*,” which Dolly said failed to
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“state anything of legal significance, such as what was posted to the front door.” /d.
at 389. Here, we know exactly what the process server posted to the door because
the returns tell us—‘‘a copy of the citation and original petition.” And the returns
here otherwise complied with the order. The lack of clarity in Do//y’s analysis, along
with its outright self-contradiction, make me wary to follow it in this case, especially
when Dolly dealt with different service return rules and materially distinguishable
facts.
I view the R.E.C. case the majority cites much the same as Dolly, primarily
because R.E.C. has two of the same problems as Dolly: the initial statement in the
return plainly indicated service by process server to a defendant who was physically
present and the later inconsistent portion indicating front door posting failed to state
what was posted on the front door and what was mailed. /n re R.E.C., No. 05-14-
01003-CV, 2015 WL 2205654, at *2 (Tex. App.—Dallas May 12, 2015, no pet.)
(mem. op.).° Thus, I don’t believe local precedent binds us to reverse, and, to the
contrary am confident the returns here strictly complied with the order.
Ed Ed Ed
Here, there is no argument that service was improper because it was executed
at an incorrect address, that Lankford was not the manager of Pro-Fire, or that
° The initial portion of that return stated the citation was delivered “to the within named
Respondent/Defendant, to-wit: Susan E. Cannon . . . each, in person.” Also, like in Dolly, the return later
stated, “Information received as to the whereabouts of defendant being [address] by Posting on the front
door per Order on Motion for Alternative Service Rule 106 and by mailing a true and correct copy.” R.E.C.,
2015 WL 2205654, at *2.
—1]2-—
someone under or over the age of 16 was present when service was executed, though
of course, that would be outside the record and not available for our consideration
here. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). There is
no argument any name is spelled incorrectly or a party was otherwise misidentified.
There’s no argument the proper documents weren’t served.
The substitute service orders addressed a common situation and did so with
plain, understandable language. The returns properly complied with the order and
proved proper service pursuant to that order. I would reject Pro-Fire’s and Lankford’s
service-related issues. I express no opinion on their remaining issues.
/Cory L. Carlyle//
CORY L. CARLYLE
191480f.p05 JUSTICE
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