IN THE SUPREME COURT OF
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No. 08-0157
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In the Interest of E.A. and D.A., Children
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On Petition for Review from the
Court of Appeals for the Second District of
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Chief Justice Jefferson delivered the opinion of the Court,
joined by Justice Hecht, Justice O’Neill,
Justice
Justice Brister filed a concurring opinion, in which Justice Wainright and Justice Willett joined.
In Weaver v. Hartford Accident and Indemnity Co., 570 S.W.2d 367, 370 (Tex. 1978), we held that “a new citation is necessary for a party who has not appeared when the plaintiff, by amended petition, seeks a more onerous judgment than prayed for in the original pleading.” In 1990, however, Texas Rule of Civil Procedure 21a was amended to provide for a variety of methods of service, including certified or registered mail, for all pleadings and court papers except the original petition. We must decide whether, in light of Rule 21a, service of new citation is required for a default judgment based on a more onerous amended petition, or whether service under Rule 21a will suffice. We conclude that service under Rule 21a is sufficient. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion.
I
Background
Emilio and Norma Avitia were married and had two children, E.A. and D.A. The Avitias later divorced, and the final decree appointed them joint managing conservators of the children. Norma was given the exclusive right to designate the children’s primary residence, and Emilio was granted visitation. Five months later, Emilio filed this petition to modify the parent-child relationship, seeking the exclusive right to designate the children’s primary residence. If a suit seeking such a modification is filed within one year of the prior order, the petitioner must attach an affidavit that contains, along with supporting facts, one of several allegations. Tex. Fam. Code § 156.102(a),(b). Emilio’s petition had no such affidavit attached. Norma was served with citation but did not file an answer or otherwise appear.
Approximately three months later,
Emilio filed an amended petition alleging that Norma had a pattern or history
of drug use and requesting that he be appointed sole managing conservator and
given a credit on his child support arrearage for a period during which he had
intermittent physical custody of the children. Emilio attached a supporting
affidavit making an appropriate allegation under Family Code section
156.102(b). Although the amended petition did not contain a certificate of
service, Emilio alleges he sent Norma the amended petition via certified mail.
The amended petition, transmittal letter, return receipt, and court order
modifying the parent-child relationship all included the same street address in
The trial court rendered a default judgment granting Emilio the exclusive right to designate the children’s primary residence. The court ordered no visitation for Norma and required her to pay child support to Emilio. Norma moved to set aside the default judgment and for new trial, arguing that default judgment was improper because Norma was not served with the amended petition. The trial court denied both motions. The court of appeals affirmed, __S.W.3d__, holding that Texas Rule of Civil Procedure 21a eliminated the requirement of an additional citation for service of an amended petition seeking a more onerous judgment on a nonanswering party. The court of appeals further held that Norma had constructive notice of the amended petition, and that this satisfied due process. Because we conclude that a new citation is not required for service of a more onerous amended petition on a nonanswering party, but that Norma was not properly served with the amended petition and did not have constructive notice of it, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings.
II
Weaver and Rule 21a
If a defendant is properly served
with process, in order to have a default judgment set aside, she must prove the
three elements set out in Craddock v. Sunshine Bus Lines, Inc., 133
S.W.2d 124, 126 (Tex. 1939). But if the defendant never received the suit
papers, she is generally entitled to a new trial without any further showing. Fidelity
and Guar. Ins. Co. v. Drewery Constr.
Co., 186 S.W.3d 571, 574 (
The parties agree that a nonanswering party is entitled to some form of notice of a more onerous amended petition, but they dispute the manner in which such a petition must be served. Norma argues that service of new citation is required, while Emilio contends that service under Texas Rule of Civil Procedure Rule 21a is sufficient. In Weaver v. Hartford Accident and Indemnity Co., 570 S.W.2d 367, 370 (Tex. 1978), we held that “new citation is necessary for a party who has not appeared when the plaintiff, by amended petition, seeks a more onerous judgment than prayed for in the original pleading.” However, in 1990, we amended Rule 21a to provide that several methods of delivery, including certified or registered mail, are appropriate for “[e]very notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules.” Tex. R. Civ. P. 21a. The court of appeals held that Rule 21a “eliminated the requirement of an additional citation” set out in Weaver. __S.W.3d at __.
We have never addressed this issue
directly. Although we recently cited Weaver in Fidelity and
Guaranty Insurance Co. v. Drewery Construction Co.,
186 S.W.3d 571, 574 (Tex. 2006) (per curiam), we did
not reach the issue of whether the type of service required has changed in
light of Rule 21a because we concluded that the amended petition in Fidelity
was not more onerous than the original petition.
The majority of courts of appeals
that have cited Weaver since the 1990 amendment to Rule 21a do not
address Rule 21a. See, e.g., Bennett v. Wood County,
200 S.W.3d 239, 241 (Tex. App.—Tyler 2006, no pet.); Scott v. Tanner,
No. 01-02-00668-CV, 2003 WL 22862806, at *3 (Tex. App.—
Rule 21a applies to all pleadings
required to be served under Rule 21 other than the original petition and except
as provided in the rules. Nothing in the rules requires a plaintiff to serve a
nonanswering defendant with new citation for a more onerous amended petition.
While a nonanswering defendant must be served with a more onerous amended
petition in order for a default judgment to stand, we agree with the court of
appeals that Rule 21a service satisfies that requirement. This interpretation
“eliminates the uncertainty and confusion that is found in the cases regarding
what constitutes a ‘more onerous judgment’ or a new ‘cause of action.’” In
re R.D.C., 912 S.W.2d at 856 (noting that Rule 21a now governs over
“ambiguous rules that have evolved as to when a new citation must be served”)
(citing 2
III
Service
We must then determine, however,
whether Emilio served the amended petition in compliance with Rule 21a. Under
that rule, court papers served by certified mail must be sent “by certified or
registered mail, to the party’s last known address.” Tex. R. Civ. P. 21a. Service by mail is “complete upon
deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a
post office or official depository . . . .”
Even assuming that the amended
petition was properly addressed, a point that Norma disputes, any presumption
of service arising from Emilio’s mailing of the amended petition was negated by
the amended petition’s return as unclaimed. __S.W.3d at __.
The presumption of service under Rule 21a “is not ‘evidence’ and it vanishes
when opposing evidence is introduced that [a document] was not received.” Cliff v. Huggins, 724 S.W.2d 778, 780 (
Rule 21a further provides that the
party or attorney of record shall certify compliance with the rule “in writing
over signature and on the filed instrument.” Tex.
R. Civ. P. 21a. A certificate of service is prima facie evidence of the
fact of service, but nothing in the rule “preclude[s] any party from offering
proof that the notice or instrument was not received, or, if service by mail,
that it was not received within three days . . . .”
Nonetheless, the court of appeals
concluded that Norma received constructive notice of the amended petition and
that this satisfied due process. __S.W.3d at __. The
court of appeals relied on the post office’s repeated attempts to deliver the
petition, one of the children’s testimony that Norma
knew about the lawsuit,[2]
and Emilio’s attorney’s statement that she sent Norma a copy of the amended
petition via regular mail and it was not returned.
We have never decided whether constructive notice of a more onerous amended petition satisfies due process. Assuming, without deciding, that it does, the record in this case is insufficient to establish constructive notice. Emilio presented no evidence that Norma avoided or refused delivery of the amended petition, nor that she received the certified mail notices. The mere fact that the certified mail was returned unclaimed is not sufficient to show avoidance or refusal where, as here, the relevant documents reflect three different zip codes for Norma’s address, and the pertinent pleading lacks a certificate of service. The child’s testimony regarding Norma’s knowledge of the lawsuit was vague and did not address Norma’s knowledge of the amended petition. Moreover, that Norma learned of the modification order does not mean she received notice of the amended petition. Emilio’s attorney asserted that she sent Norma a copy of the amended petition via regular mail and that copy was not returned. However, standing alone, this is insufficient to establish that Norma had constructive notice of the amended petition.
IV
Conclusion
In order for a default judgment to stand, a nonanswering party must be served with a more onerous amended petition under Rule 21a. Service of new citation is no longer required. There is no evidence, however, that Norma was served with the amended petition under Rule 21a or that she had constructive notice of the amended petition. Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 59.1.
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Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: June 5, 2009
[1] In the court of appeals, Norma argued that under Texas Rule of Civil Procedure 107, the certified receipt must be on file for ten days before the final hearing, as opposed to ten days before the final judgment is rendered. The court of appeals rejected this argument, and Norma does not raise the Rule 107 issue in this Court.
[2] At the hearing on Emilio’s motion to modify, E.A. was asked whether Norma knew about the lawsuit. He responded: “[s]he – I mean, letters – she got letters, like, go to her house. She should be informed.”