Full of Faith Christian Center, Inc., Full of Faith Christian Center Ministries, Full of Faith Christian Center Ministries, Inc., Calvin Ray Calhoun, and Peggy Calhoun v. Kenneth May & Desire Ophelia Fuentes-May

Reversed and Remanded in Part and Affirmed in Part; Opinion Filed August
11, 2022

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00859-CV

FULL OF FAITH CHRISTIAN CENTER, INC., FULL OF FAITH
CHRISTIAN CENTER MINISTRIES, FULL OF FAITH CHRISTIAN
CENTER MINISTRIES, INC., CALVIN RAY CALHOUN, AND PEGGY
CALHOUN, Appellants
V.
KENNETH MAY & DESIRE OPHELIA FUENTES-MAY, Appellees

On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-08058

MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Nowell
This is an appeal from a no-answer default judgment. Appellants filed a

motion for new trial that was overruled by operation of law. They argue on appeal

that the citation was defective; appellees’ motion for substituted service was

defective; appellees’ supplemental petition was not served, rendering default

judgment void; the trial court could not consider evidence received before it obtained

personal jurisdiction over appellants; and that the court erred by awarding punitive
damages against appellants jointly and severally and by denying their motion for

new trial. We conclude that citation and service were not defective and that

appellants failed to show grounds to set aside the default judgment. However, we

agree it was error to award punitive damages jointly and severally. As a result of the

default judgment, liability is not contested. Therefore, we reverse the award of

exemplary damages against appellants jointly and severally and remand for a new

trial on exemplary damages only. In all other respects, we affirm the trial court’s

judgment.

Background
Kenneth May and Desire Ophelia Fuentes-May (collectively May) filed their

original petition against Full Faith Christian Center, Inc. on June 5, 2019, alleging

claims for nuisance, trespass, negligence, and unlawful diversion of water. The

original petition identified Calvin R. Calhoun as registered agent for Full Faith

Christian Center. The return of service indicates that Calvin R. Calhoun was served

in person with “a true copy of this Citation together with the accompanying copy of

this pleading.” Full Faith Christian Center, Inc. did not file an answer.

Subsequently, May filed a first amended petition naming as defendants: Full

of Faith Christian Center, Inc.; Full of Faith Christian Center Ministries; Full of Faith

Christian Center Ministries, Inc.; Calvin Ray Calhoun (Calvin); and Peggy Calhoun

(Peggy). The amended petition alleged that Full of Faith Christian Center, Inc. was

misnamed in the original petition and that Calvin is its registered agent. It alleged
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that Full of Faith Christian Center Ministries, and Full of Faith Christian Center

Ministries, Inc. are alter egos of Calvin and/or Peggy and that Calvin and Peggy

could be served at their residence, listing a specific address in Desoto (the Desoto

Address).

Citations were issued for each of the defendants named in the first amended

petition. The citations are styled “the State of Texas,” signed by the clerk under seal,

and state the date the petition was filed, the name and location of the court in which

the suit was filed, the cause number, the date of the citation, the names of the parties,

and are directed to the named defendant. The citations show the name and address

of the plaintiffs’ attorney, contain the time within which the defendant should file a

written answer, the address of the clerk, and notify the defendant that failure to

answer may result in a default judgment for the relief demanded in the petition.

The citations state that an answer is required on the Monday next following

the expiration of twenty days “after you were served with this citation and FIRST

AMENDED petition.” Following the defendants’ names, the citations describe the

suit as a “suit on PROPERTY etc. as shown on said petition REQUEST FOR

DISCLOSURE, a copy of which accompanies this citation.” The first amended

petition contains a paragraph requesting disclosures under Rule 194. TEX. R. CIV. P.

194.

The returns of service for the first amended petition indicate that Calvin was

served in person individually and on behalf of Full of Faith Christian Center, Inc.,
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Full of Faith Christian Center Ministries, and Full of Faith Christian Center

Ministries, Inc. (collectively the Full of Faith Entities). May obtained an order for

substituted service on Peggy Calhoun and she was served by attaching the citation

and first amended petition to the front door of her residence. None of the defendants

filed an answer before the default judgment was rendered.

The returns of service were not sworn when first filed but were later amended

to include a jurat. On May 15, 2020, the trial court denied May’s motion for default

judgment without prejudice for the failure of the returns to show Calvin’s authority

to accept service for the Full of Faith Entities.

On May 27, 2020, May filed amended returns which attached documents

showing Calhoun’s authority for the Full of Faith Entities. May filed a motion to

reconsider the denial of the default judgment on June 9, 2020.

On July 31, 2020, the trial court signed a default judgment awarding actual

and punitive damages against all defendants jointly and severally.

Appellants timely filed a motion to set aside the default judgment and a

motion for new trial. Appellants asserted they failed to answer because they believed

the case had been dismissed. After an evidentiary hearing, the trial court denied both

motions.

Standard of Review
We review a trial court’s denial of a motion for new trial for abuse of

discretion. Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268
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(Tex. 1994). A default judgment should be set aside and a new trial granted if (1) the

failure to answer was not intentional or the result of conscious indifference but was

due to a mistake or accident, (2) the defendant sets up a meritorious defense, and (3)

the motion is filed at such time that granting a new trial would not result in delay or

otherwise injure the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d

124, 126 (Tex. 1939). However, when the first element is established by proof that

the defaulting party did not receive notice of the trial setting, due process requires a

new trial without a showing of the other two elements. See Mabon Ltd. v. Afri-Carib

Enter., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam).

A trial court abuses its discretion if it fails to grant a new trial when all three

elements of the Craddock test are met. Dolgencorp of Tex., Inc. v. Lerma, 288

S.W.3d 922, 926 (Tex. 2009). The defaulting defendant has the burden of proving

all three elements of the Craddock test before a trial court is required to grant a

motion for new trial. Chloe’s Concepts, LLC v. Clear Rainbow, Inc., No. 05-20-

00484-CV, 2021 WL 5998006, at *2 (Tex. App.—Dallas Dec. 20, 2021, no pet.)

(mem. op.). “Consciously indifferent conduct occurs when ‘the defendant knew it

was sued but did not care.’” Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex.

2012). “Generally, ‘some excuse, although not necessarily a good one, will suffice

to show that a defendant’s failure to file an answer was not because the defendant

did not care.’” Id. (citing In re R.R., 209 S.W.3d 112, 115 (Tex. 2006)).

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 Where the factual allegations in a movant’s affidavits are not controverted, it

is sufficient that the affidavits set forth facts which, if true, would negate intentional

or consciously indifferent conduct. Evans, 889 S.W.2d at 269. However, conclusory

allegations are insufficient. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82–

83 (Tex. 1992) (mere statement that failure to answer was due to accident and

mistake was conclusory). In determining if the defendant’s factual assertions are

controverted, the court looks to all the evidence in the record. Evans, 889 S.W.2d at

269. When the defendant’s factual assertions are controverted, the question of

whether the defendant’s failure to answer was intentional or the result of conscious

indifference is a fact question. Rhodes v. Kelly, No. 05-16-00888-CV, 2017 WL

2774452, at *8 (Tex. App.—Dallas June 27, 2017, pet. denied) (mem. op.).

Discussion
We discuss appellants’ first four issues together.

Appellants contend that service was defective because the citation and return

do not show appellants were served with the first amended petition, which is the only

petition in which they are named as defendants. See Primate Constr., Inc. v. Silver,

884 S.W.2d 151, 152–53 (Tex. 1994) (per curiam) (holding in restricted appeal that

return indicating appellant was served with original petition in which it was not

named as a party was ineffective even though citation referred to second amended

petition which included appellant).

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 Service of citation must be in strict compliance with the rules of civil

procedure for a default judgment to withstand a direct attack. See Primate Constr.,

884 S.W.2d at 152. However, strict compliance with the rules does not require

“obeisance to the minutest detail.” Id.; see also Williams v. Williams, 150 S.W.3d

436, 443–44 (Tex. App.—Austin 2004, pet. denied); Ortiz v. Avante Villa at Corpus

Christi, Inc., 926 S.W.2d 608, 613 (Tex. App.—Corpus Christi 1996, writ denied).

As long as the record as a whole, including the petition, citation, and return, shows

that the citation was served on the defendant in the suit, service of process will not

be invalidated. Williams, 150 S.W.3d at 444. Further, although the rule in a restricted

appeal is that there are no presumptions in favor of the valid issuance, service, and

return of citation, “our analysis is different when, as here, a default judgment is

attacked by a motion for new trial.” Sutherland, 376 S.W.3d at 754. In a motion for

new trial, the record can be developed as to what happened. See Fidelity and Guar.

Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573–74 (Tex. 2006). In this

circumstance, we focus on “the critical question in any default judgment: ‘Why did

the defendant not appear?’” Sutherland, 376 S.W.3d at 754.

Isolating a single phrase in the citations, appellants argue that the citations

identify the document served as a “REQUEST FOR DISCLOSURE.” However, we

must consider the record as a whole, including the petition, citations, and returns.

Rhodes, 2017 WL 2774452, at *5; Williams, 150 S.W.3d at 444; see also TEX. R.

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CIV. P. 107(b) (stating information the “return, together with any document to which

it is attached” must include).

The first paragraph of the citations inform the defendant that it must file a

written answer within a certain time “after you were served with this citation and

FIRST AMENDED petition.” Following the defendants’ names, the citations

describe the suit as a “suit on PROPERTY etc. as shown on said petition REQUEST

FOR DISCLOSURE, a copy of which accompanies this citation.” (emphasis added).

The language “said petition” in this sentence refers to the “FIRST AMENDED

petition” mentioned in the first paragraph of the citation. We reject appellants’

argument that the citations show appellants were served only with a request for

disclosure.

Appellants also argue the returns do not include a description of what was

served because they merely state the process server delivered “a true copy of this

Citation together with the accompanying copy of this pleading.” But as just

explained, the citations sufficiently describe the document accompanying the

citation as the first amended petition. Thus, the returns’ reference back to the citation

and the accompanying copy of the pleading sufficiently describes what was served.

See Ortiz, 926 S.W.2d at 612 (holding return referring to “the Petition attached” to

the citation was sufficient where citation identified document served as “the

PLAINTIFF’S ORIGINAL PETITION”). Further, in an affidavit attached to the

response to the motion for new trial, the process server stated that service of process
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included the citation and the plaintiffs’ first amended petition. See In re M.C.B., 400

S.W.3d 630, 634–35 (Tex. App.—Dallas 2013, no pet.) (op. on reh’g) (holding trial

court could consider testimony of process server in addition to return of service to

show that server taped service to defendant’s door “in strict compliance with the trial

court’s order authorizing substitute service”).

We conclude that the record as a whole, including the petition, citations,

amended returns, and affidavits of the process server show appellants were served

with the first amended petition. See Rhodes, 2017 WL 2774452, at *5.

Appellants argue that substituted service on Peggy was invalid because of

defects in the motion for substituted service.

After several unsuccessful attempts to serve Peggy in person, May filed a

motion for substitute service and the process server’s affidavit. The motion states:

1. Service on Defendant, Full Faith Christian Center, Inc., was
previously unsuccessfully attempted in the following manner: The
process server, in the manner related by the process server’s affidavit,
attached hereto as Attachment 1, attempted to serve Peggy Calhoun at
her home.

2. As provided in Rule 106, Texas Rules Of Civil Procedure, Movants
ask the Court to authorize service of process on Defendant by attaching
the citation and petition to the defendant’s door at the defendant’s home
located at [the Desoto Address].
The process server’s affidavit states that she has “attempted to serve Peggy

Calhoun in this case personally,” states “Respondent’s home address” is the Desoto

Address, and lists four attempts to serve Peggy at the Desoto Address and at a

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different address in Desoto. Two attempts are listed as occurring at the same date

and time but at different addresses. The process server indicated she spoke with

Peggy’s husband, Calvin, on two of these attempts. He confirmed Peggy is his wife

but told the process server she would not be serving his wife.

The trial court signed an order granting the motion for substitute service and

authorized plaintiffs “to serve Defendant with process by attaching the citation and

petition to the defendant’s door at the defendant’s home located at” the Desoto

Address. The return of service for Peggy states that the process server executed the

citation at the Desoto Address by delivering to Peggy “pursuant to order on motion

for substituted service” a copy of the citation and accompanying copy of the

pleading. Attached to the return are photographs of the citation attached to the door

of a house.

Isolating certain words and ignoring others in the motion and affidavit,

appellants argue the motion for substitute service was defective. While not a model

of clarity, the motion and affidavit provide the information required by Rule 106.

TEX. R. CIV. P. 106.

Rule 1061 provides that on a motion supported by an affidavit stating the

location of the defendant’s usual place of business or abode or other place where the

defendant can probably be found, and specific facts showing attempts to serve

1
Rule 106 was amended effective December 31, 2020. TEX. R. CIV. P. 106. All references to Rule 106
are to the version in effect at the time the trial court ordered substitute service on January 30, 2020.
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defendant in person or by certified mail at the location were unsuccessful, the court

may authorize substitute service in any manner the affidavit or other evidence shows

will be reasonably effective to give the defendant notice of the suit. TEX. R. CIV. P.

106.

Appellants argue the motion states that plaintiffs attempted to serve “Full

Faith Christian Center.” While that language is in the motion, the motion and

affidavit go on to state specifically that the process server attempted to serve Peggy

at her home. The motion requested the court to authorize substitute service on

defendant by attaching the citation and petition to the door at the defendant’s home

located at the Desoto Address. The first amended petition alleged that Peggy could

be served at her residence, giving the Desoto Address. The affidavit identifies the

Desoto Address as “Respondent’s home address.” And while appellants complain

that there is no respondent in this case, it is not uncommon for respondent to be used

interchangeably with defendant. In the context of discussing attempts to serve Peggy

in person “at the address . . . shown below,” the reference in the affidavit to

respondent’s home is not misleading.

Next, appellants contend that the affidavit does not state Peggy’s usual place

of abode. However, use of magic words, such as “usual place of abode,” is not

required. See In re R.A., No. 02-18-00185-CV, 2018 WL 5832148, at *4 (Tex.

App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.); Goshorn v. Brown, No. 14–

02–00852–CV, 2003 WL 22176976, at *2 (Tex. App.—Houston [14th Dist.] Sep.
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23, 2003, no pet.) (mem. op.) (holding that magic words are not required to show

compliance with rule 106). The statement of Peggy’s home address is sufficient to

satisfy the requirement that the affidavit state the location of the defendant’s usual

place of abode.

Appellants also argue that the order on the motion for substitute service

authorizes service on “Defendant” without naming Peggy. However, the motion and

affidavit identified Peggy as the person on whom service was unsuccessful. The

order authorizes substitute service on defendant and Peggy is a defendant named in

the first amended petition. At the time of the order for substitute service, all other

defendants had been served and returns were on file. Thus, substitute service was

not required for any defendant other than Peggy.

Considering the record in this appeal from the denial of a motion for new trial,

we conclude Peggy was served in strict compliance with the order authorizing

substitute service. See Pirate Oilfield Servs., Inc. v. Cunningham, 631 S.W.3d 421,

431 (Tex. App.—Eastland 2021, no pet.) (holding order for substitute service was

not fatally defective where it authorized service at “the front door of Apartment L202

at Faudree Rd., Odessa, TX 79765 which is the defendant’s usual place of abode,”

but motion and affidavit stated defendant’s place of abode was “4001 Faudree Rd.,

Apt. L202, Odessa, TX 79765”); In re M.C.B., 400 S.W.3d at 634–35.

Appellants further contend that May failed to serve them with a supplemental

petition, which they assert was actually an amended petition. However, service of an
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amended petition on a defendant who has not appeared is necessary only when the

plaintiff seeks a more onerous judgment than prayed for in the original pleading.

Drewery Constr., 186 S.W.3d at 574.

Plaintiffs’ first amended petition alleged a statutory violation for unlawful

diversion of water. It stated the terms of the statute but cited the property code

instead of the water code. The supplemental petition did not change the allegations

or the requested relief; it merely corrected the citation from the property code to the

water code. See TEX. WATER CODE § 11.086.

Except for certain special matters not at issue here, a pleading need only

provide “fair notice” of the claim and relief sought. TEX. R. CIV. P. 47; Jackson v.

Ali Zaher Enters., LLC, No. 05-18-00288-CV, 2019 WL 698019, at *3 (Tex. App.—

Dallas Feb. 20, 2019, no pet.) (mem. op.). If a party pleads facts which, if true, entitle

him to the relief sought, he need not specifically plead the applicable statute in order

to recover under it. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.—

Houston [14th Dist.] 2000, no pet.).

The supplemental petition did not add any additional causes of action or

defendants and did not request relief beyond what was requested in the first amended

petition. Because the supplemental petition did not seek a more onerous judgment

than prayed for in the first amended petition, May was not required to serve it on

appellants.

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 Appellants next argue that the trial court heard evidence before it acquired

personal jurisdiction. The court heard evidence on May 15, 2020 on the motion for

default judgment but denied the motion due to the defective returns. Appellants

contend the court could not consider evidence from the May 15, 2020 hearing when

it later decided the motion to reconsider the default judgment and rendered the

default judgment. Appellants cite no authority directly supporting their contentions.

Appellants argue further that there is no order authorizing amendment of the returns

of service.

Rule 118 gives a trial court express authority “to allow amendment of the

return to reflect the service that was actually had.” Higginbotham v. Gen. Life & Acc.

Ins. Co., 796 S.W.2d 695, 696 (Tex. 1990); see also TEX. R. CIV. P. 118 (permitting

court “at any time in its discretion” to allow amendment of any process or proof of

service). Where the record affirmatively demonstrates a proper form of service and

contains an order tantamount to formal amendment of the return of citation, the

record is sufficient to show valid service. Id. at 695, 697 (citing trial court’s finding

following hearing on motion for new trial that service was proper under insurance

code and holding order was effective to amend return).

Here, the order denying the motion for default judgment was without

prejudice and noted the returns failed to show Calvin’s authority to receive service.

After May filed amended returns attaching documents to show Calvin’s authority to

receive service for the Full of Faith Entities, May filed a motion to reconsider the
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motion for default judgment. No amendment was required for the returns for Calvin

and Peggy individually. Calvin was sued and served in his individual capacity; he is

undeniably authorized to accept service on his own behalf. Further, Calvin did not

receive service for Peggy; she was served by substitute service in accordance with

the trial court’s order.

The default judgment specifically referenced the second amended returns as

support for the judgment and the court found all defendants were served properly

and that the returns of service were on file at least ten days before the hearing on the

motion to reconsider on July 31, 2020. These orders were “tantamount to formal

amendment of the return of citation,” and the record is sufficient to show valid

service. Higginbotham, 796 S.W.2d at 697.

An amended return relates back to the original return and is regarded as filed

when the original return was filed. LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863,

868 (Tex. App.—Fort Worth 2013, no pet.). Thus, the second amended returns are

considered to be filed before the time the court heard evidence on the motion for

default judgment. We conclude that appellants have not shown the trial court erred

by granting the motion to reconsider the motion for default judgment.

We overrule appellants’ first four issues.2

2
Appellants’ brief lists a sixth issue asserting they met the Craddock test and were entitled to a new
trial. However, appellants do not argue the Craddock elements in their brief, thus their sixth issue presents
nothing for review. See Tex. R. App. P. 38.1(i). Even so, the record includes conflicting evidence on
whether appellants’ motion for new trial established the elements of the Craddock test. Accordingly, even

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 In their fifth issue, appellants argue the trial court erred by rendering judgment

awarding punitive damages against them jointly and severally. We agree.

The judgment awards punitive damages against appellants jointly and

severally. This was error. See TEX. CIV. PRAC. & REM. CODE § 41.006 (“In any action

in which there are two or more defendants, an award of exemplary damages must be

specific as to a defendant, and each defendant is liable only for the amount of the

award made against that defendant.”). We sustain appellants’ fifth issue.

Rule 44.1(b) provides that when liability is contested, the court may not order

a separate trial solely on unliquidated damages. TEX. R. APP. P. 44.1(b). However,

when a defendant appeals a no-answer default judgment, liability is not contested

for purposes of this rule. See Fleming Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d

405, 408 (Tex. App.—Austin 1987, writ ref’d n.r.e.) (applying predecessor rule).

Therefore, we reverse the award of punitive damages and remand for a new trial on

punitive damages only.

Conclusion
We reverse the award of exemplary damages against defendants jointly and

severally and remand for a new trial on exemplary damages only. In all other

if the issue had been properly presented on appeal, we cannot conclude the trial court abused its discretion
by denying the motion for new trial. See Roman v. Ramirez, 573 S.W.3d 341, 350, 352 (Tex. App.—El
Paso 2019, pet. denied) (holding trial court did not abuse its discretion by denying motion for new trial
where there was conflicting evidence as to whether defendant received citation and petition).
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 respects, we affirm the trial court’s judgment.

/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE

200859f.p05

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

FULL OF FAITH CHRISTIAN On Appeal from the 44th Judicial
CENTER, INC., FULL OF FAITH District Court, Dallas County, Texas
CHRISTIAN CENTER Trial Court Cause No. DC-19-08058.
MINISTRIES, FULL OF FAITH Opinion delivered by Justice Nowell.
CHRISTIAN CENTER Justices Reichek and Carlyle
MINISTRIES, INC., CALVIN RAY participating.
CALHOUN, AND PEGGY
CALHOUN, Appellants

No. 05-20-00859-CV V.

KENNETH MAY & DESIRE
OPHELIA FUENTES-MAY,
Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED AND REMANDED IN PART AND AFFIRMED IN
PART.

The award of exemplary damages against appellants Full Of Faith Christian
Center, Inc., Full Of Faith Christian Center Ministries, Full Of Faith Christian
Center Ministries, Inc., Calvin Ray Calhoun, and Peggy Calhoun jointly and
severally is REVERSED and REMANDED for a new trial on exemplary damages
only. In all other respects, the trial court’s judgment is AFFIRMED.

It is ORDERED that appellees Kenneth May & Desire Ophelia Fuentes-
May recover their costs of this appeal from appellants Full Of Faith Christian

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Center, Inc., Full Of Faith Christian Center Ministries, Full Of Faith Christian
Center Ministries, Inc., Calvin Ray Calhoun, and Peggy Calhoun.

Judgment entered this 11th day of August, 2022.

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