Opinion
No. 05-06-01444-CV
Opinion Filed December 4, 2007.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. cc-05-00727-B.
Before Justices MORRIS, BRIDGES and O'NEILL.
MEMORANDUM OPINION
This is a default judgement case. Transwestern Publishing sued McCluskey on a sworn account. Service of process was attempted three times by personal delivery at McCluskey's business address to no avail. After substituted service, the trial court entered a default judgment against McCluskey from which he has made a restricted appeal. McCluskey seeks reversal contending that the order granting substituted service was improper. Finding no reversible error, we affirm.
Background
Transwestern Publishing filed suit to recover money owed under advertising contracts executed by McCluskey d/b/a Best Bail Bonds. Each contract was signed by McCluskey and all ads were approved by McCluskey in writing. Each document states that his business address is 720 W. Weatherford in Fort Worth (the "Fort Worth Address").
A process server tried to serve McCluskey once in February 2005 and twice on June 7, 2005 at the Fort Worth Address. The process server was unsuccessful. Failing to serve him, Transwestern Publishing filed an affidavit of attempted service in support of a successful motion for substituted service. Attached to the affidavit is a Tarrant County Appraisal District business property form for the Fort Worth Address which identifies McCluskey as the owner and provides his Houston address as the owner's address. McCluskey now contends that the inclusion of the Houston address on the appraisal form required Transwestern Publishing to attempt service of process at his Houston location before it sought substituted service.
McCluskey argues that Transwestern Publishing's efforts to personally serve him under Rule of Civil Procedure 106(a) were insufficient and cannot support its motion for substituted service and the trial court erred when it entered the order for substituted service. He then asserts that the resulting default judgment is invalid and must be reversed. No other issue has been preserved and argued in this appeal.
Discussion
Rule 106(a) requires citation be served either (1) by delivery in person, or (2) by certified mail. Tex. R. Civ. P. 106(a). McCluskey admits that Transwestern Publishing tried to serve him three times at the Forth Worth Address by personal delivery before the publisher sought substituted service. However, he argues that Transwestern Publishing failed to demonstrate to the trial court that service had been attempted on him at his usual place of business, residence or any other location where he is likely to be found because the plaintiff had not also tried to serve him at his Houston address.
The one case cited in support of McCluskey's contention states that "a court may authorize substituted service only after the plaintiff has unsuccessfully tried to effect personal service or service by certified mail, return receipt requested, as required by Rule 106(a)." State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298, 298-99 (Tex. 1993) (citing Tex. R. Civ. P. 106(b)). However, the decision continues and observes that an affidavit satisfies Rule 106(b) if it shows that attempts complying with Rule 106(a)(1) or Rule 106(a)(2) have failed. Id. at fn. 2. Accordingly, the State Farm decision does not support McCluskey's argument. The Dallas Court of Appeals' decision in Pratt v. Moore, 746 S.W.2d 486 (Tex.App.-Dallas 1988, no writ), is more instructive. In Pratt, the court held that Rule 106 no longer requires that the affidavit show attempts to serve a defendant at both his place of business and his abode. Id. at 488.
Transwestern Publishing's motion for substituted service is supported by an sworn affidavit of attempted service stating that the affiant is authorized to serve citations and made three unsuccessful attempts to serve McCluskey by personal delivery at the Fort Worth Address, his usual place of business. . Accordingly, the affidavit shows that attempts complying with Rule 106(a)(1) were made and failed. The trial court, therefore, did not err when it granted the motion for substituted service and entered the corresponding order. McCluskey's issues are overruled.
Conclusion
Having resolved McCluskey's issues against him, the trial court judgment is affirmed.