Full Opinion (html_with_citations)

                                 MEMORANDUM OPINION
                                         No. 04-10-00316-CV

                                        Williams TRENTON,
                                              Appellant

                                                   v.

                                         Derek HAMMITT,
                                              Appellee

                     From the County Court at Law No. 10, Bexar County, Texas
                                      Trial Court No. 351837
                            Honorable H. Paul Canales, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 29, 2010

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART

           Williams Trenton filed this restricted appeal of the default judgment entered against him

after substituted service. Trenton complains the substituted service was defective and the default

judgment should be set aside or, in the alternative, the damage award must be remanded because

there is no evidence to support the award. We affirm the default judgment on liability, but

reverse the award of damages and remand for a new trial on damages.
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                                        BACKGROUND

       Derek Hammitt filed suit for injuries he allegedly received in an automobile accident that

involved Trenton. After attempting service on numerous occasions, Hammitt filed a motion

seeking authorization for substituted service on Trenton pursuant to Texas Rule of Civil

Procedure 106. Hammitt’s motion was granted and the trial court ordered that service could be

made on Trenton “by leaving a copy of the citation, with a copy of the petition and a copy of this

order attached” at a specified address. The officer’s return of service was on the bottom portion

of the page that contained the notice of citation. The return stated that “a true copy of this

citation together with the accompanying copy of plaintiff’s petition had been delivered” at the

address designated in the Rule 106 order. Stamped on the return of service was the notation

“ORDER FOR SUBSITUTED SERVICE ATTACHED.” The officer signed the return and it

was verified.

       A hearing on Hammitt’s motion for default judgment was held on January 8, 2010, but

there is no record of the hearing. On January 11, 2010, the trial court rendered a default judgment

against Trenton and awarded Hammitt $525,000.00 in unliquidated damages. There is no dispute

that Trenton did not participate in the hearing that resulted in the default judgment or file any

post-judgment motions. Trenton filed his Notice of Restricted Appeal on April 26, 2010.

                                         DISCUSSION

                                        Restricted Appeal

       A party can prevail in a restricted appeal only if: (1) the restricted appeal is filed within

six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did

not participate in the hearing that resulted in the judgment and did not timely file any

postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is



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apparent on the face of the record. Ins. Co. of State of Pennsylvania v. Lejeune,
297 S.W.3d 254, 255
 (Tex. 2009); Alexander v. Lynda’s Boutique,
134 S.W.3d 845, 848
 (Tex. 2004). The only

element at issue in this case is whether there is error apparent on the face of the record.

       Trenton contends there are two errors apparent on the face of the record: defective

substituted service and no evidence to support a judgment for unliquidated damages.

                                         Substituted Service

       Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of

service. Service of process must be performed in strict compliance with rule 106 to support a

default judgment. In re Z.J.W.,
185 S.W.3d 905, 907
 (Tex. App.—Tyler 2006, no pet.); Vespa v.

Nat’l Health Ins. Co.,
98 S.W.3d 749, 752
 (Tex. App.—Fort Worth 2003, no pet.); Becker v.

Russell,
765 S.W.2d 899, 901
 (Tex. App.—Austin 1989, no writ). When a trial court orders

substituted service pursuant to rule 106, the only authority for the substituted service is the order

itself. See Vespa,
98 S.W.3d at 752
; Becker,
765 S.W.2d at 901
; 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. See Becker,
765 S.W.2d at 901
.

       The process server’s return of service is considered prima facie evidence of the facts

asserted therein. Primate Constr., Inc. v. Silver,
884 S.W.2d 151, 152
 (Tex. 1994) (per curiam)

“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.
 (citations omitted).




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        In this case, the rule 106 order required that the order be attached to the citation. Trenton

claims that although the return reflects the citation and petition were served, it does not establish

the rule 106 order was served. Trenton also claims the stamped language regarding the Rule 106

order was located above the officer’s return section on the citation and as such was not part of

the return nor properly verified. To support his contention Trenton relies on Dolly v. Aethos

Commc’ns Sys., Inc.,
10 S.W.3d 384, 388
 (Tex. App.—Dallas 2000, no pet.). In Dolly, the

verification stated that “on this day personally appeared GERALD BORYCZ known to me to be

the person whose name is subscribed on the foregoing instrument and who stated under oath that

they executed the Citation in the above numbered cause pursuant to the Texas Rule of Civil

Procedure.” The court determined that because the phrase “*Posted to the Front Door*” was

located under the verification it was not in the foregoing instrument and not verified. Here, the

stamped language is below the deputy clerk’s signature on the citation and above the sheriff’s

verification. Thus, it is part of the officer’s return.

        Trenton also argues the return of service does not establish that the rule 106 order was

served because there is no evidence the process server placed the stamped language on the

return. However, the record contains the original citation which did not include the stamped

language. Furthermore, language does not cease to be prima facie evidence of the facts of service

merely because it is stamped or pre-printed on the officer’s return of service. See Primate

Constr.,
884 S.W.2d at 152
 (return is prima facie evidence even though the facts in the form are

preprinted rather than filled in by officer); Fowler v. Quinlan Indep. Sch. Dist.,
963 S.W.2d 941, 943
 (Tex. App.—Texarkana 1998, no pet.)(pre-printed facts on return are prima facie evidence

of service). Accordingly, the service of citation was not defective, and the default judgment on

liability is affirmed.



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                                     Unliquidated Damages

         Trenton contends there is no evidence to support the damages awarded in the default

judgment. A restricted appeal may include review of the legal sufficiency of the evidence to

support an award of damages. Norman Commc’ns v. Tex. Eastman Co.,
955 S.W.2d 269, 270

(Tex. 1997). When a no-answer default judgment is taken on an unliquidated claim, all

allegations of fact set forth in the petition are deemed admitted, except for the amount of

damages. Tex. Commerce Bank, Nat’l. Assn. v. New,
3 S.W.3d 515, 516
 (Tex. 1999) (per

curiam); Arenivar v. Providian Nat’l Bank,
23 S.W.3d 496, 497-98
 (Tex. App.—Amarillo 2000,

no pet.); Transport Concepts, Inc. v. Reeves,
748 S.W.2d 302, 305
 (Tex. App.—Dallas 1988, no

writ).

         Hammit admits there was no record made at the hearing on the default judgment. We

hold the default judgment admitted only Trenton’s liability, and because there is no evidence in

the record to support the award of damages, we remand the cause to the trial court for a new trial

on damages. See Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 80, 86
 (Tex. 1992)(“when an

appellate court sustains a no evidence point after an uncontested hearing on unliquidated

damages following a no-answer default judgment, the appropriate disposition is a remand for a

new trial on the issue of unliquidated damages.”).



                                                            Steven C. Hilbig, Justice




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