In Bailey’s Furniture, Inc. v. Graham-Rutledge & Co., No. 05-11-00710-CV, the Fifth District Court of Appeals reaffirmed the long standing rule that strict compliance with Texas Rule of Civil Procedure 106(b) is necessary to establish proper service on a defaulting defendant.
In this case, the plaintiff unsuccessfully attempted to serve Charles Bailey, registered agent for Defendant Bailey’s Furniture on several occasions. Therefore, plaintiff filed a motion for substituted service supported by an affidavit from the process server. The affidavit repeatedly stated, “Defendant, Charles Bailey”, instead of referring to him as the registered agent. The trial court granted the motion for substituted service, and the plaintiff soon thereafter took a default judgment against Bailey’s Furniture for over $ 48,000.
Bailey’s Furniture eventually filed a motion for new trial with the trial court, which was denied. Upon appeal, the appellate court held that service on Bailey’s Furniture was not valid because the affidavit supporting the motion for substituted service did not strictly comply with Texas Rule of Civil Procedure 106(b), and therefore, there was no proper service on the actual defendant, and the trial court did not have personal jurisdiction over Bailey’s Furniture. The default judgment was void. The case was reversed and remanded for further proceedings.