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What is the “Service” in a Lawsuit and What Happens When it Goes Wrong

Service of process is the means by which a person named in a lawsuit is officially made aware of the existence of the lawsuit, and the need for them to take some action.  The principals of “Notice and Opportunity” are inherent in people’s right to due process under the law, but what does that mean?

The Courts have determined that a party to a lawsuit doesn’t officially “know” about a lawsuit until they’ve been served.  Service is most typically effected in the same manner as seen on TV.  A stranger approaches and an ominous fold of paper appears from inside their coat and they hand it over to you and utter the magic words, “you’ve been served.”  Ok, not quite, but close.  This is called “personal service.”  It is when a duly authorized person gives you the formal notice of the suit, in person, and swears an oath that they did so.  They deliver that sworn oath to the Court, and the case can begin in earnest.  From the date of service, a defendant has until Monday, at 10:00am following the expiration of 20 days to respond to the lawsuit.  If the defendant never responds, the plaintiff wins the lawsuit by default, and gets a judgment against the defendant.

Humans have an unlimited capacity for creativity, and finding ways to mess up the formal procedure for service of process, is no exception.  Thus, Courts have had to decide what happens when service doesn’t go according to plan.  The first step is to undo the judgment that was entered against the defendant.  In order to undo that judgment, the defendant must file a Motion for New Trial within 30 days that the judgment was signed.  A court should set aside a default judgment and grant a new trial if the defendant can meet the requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.1939), which require the defendant to:

  1. Demonstrate the failure to file an answer or appear at a hearing was not intentional or the result of conscious indifference, but was a mistake or accident.
  2. Set up a meritorious defense.
  3. Demonstrate that granting a new trial will not result in delay or prejudice the plaintiff.

However, a defendant who was not served with process is not required to show a meritorious defense. Because notice of the lawsuit and the judgment is an essential ingredient of due process, even if a defendant has no meritorious defense, a judgment is vulnerable to attack in the absence of constitutionally mandated notice.  Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84–86, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988); see, Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).  “That the court rendered a judgment unmixed with any fault or negligence on behalf of the petitioner, is conclusively established if the petitioner proves that he or she was never served with process.”  See, Id. An individual who is not served cannot be at fault or negligent in allowing a default judgment to be rendered. Even if the individual becomes aware of the proceedings, he or she has no duty to participate in them without proper service of process, and is also not at fault for failing to answer Caldwell v. Barnes, 154 S.W.3d 93, 97 (Tex. 2004); see, Ross v. Nat’l Ctr. for Employment of Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (“While diligence is required from properly served parties or those who have appeared, ¼ those not properly served have no duty to act, diligently or otherwise.”)

If, however, the default judgment was not discovered, or ignored for longer than 30 days, the defendant can still attack a judgment with a Bill of Review.  A Bill of Review is a special procedure for when more than 4 months, but less than 4 years, have passed since the judgment was entered.  A Bill of Review operates under the same general principals as a Motion for New Trial when the issue is defective service.  “It is axiomatic that a default judgment without proper service is void and subject to direct attack by petition for writ of error.” Camden Fire Ins. Co. v. Hill, 276 S.W. 887, 890 (Tex.Com.App.1925).

Either way, a showing that a person wasn’t properly served will generally defeat a default judgment, so long as the challenge is brought in a timely manner.  If a judgment was entered against you without your knowledge, you should contact a civil law attorney as soon as possible to ensure you don’t miss an opportunity to challenge the judgment’s validity.

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