Default judgment terminology: substitute service | service by publication | return
of citation |
no answer default judgment | post-answer default judgment | motion
to set aside default |
motion to reinstate and motion for new trial after default |
Craddock test | sufficiency of service | defect in service of citation | strict
compliance |
adequacy of service of process | entitlement to notice | due
diligence | actual notice | not diligent | How to attack and set aside default
judgment by direct attack |
collateral challenge | bill of review |
restricted appeal | direct appeal | notice of signing of judgment | last known
address | error on the face of the record |
appellate time-line | plenary jurisdiction
| post-judgement motions | grant of new trial after default judgment

DEFAULT JUDGMENT APPEALS - CASELAW FROM THE
FIRST AND FOURTEENTH COURT OF APPEALS

Jackson v. Textron Fin. Corp. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)
(Boyce) (
no answer default judgment reversed, answer was on file, general vs.
sworn denial and counterclaim)
REVERSED AND REMANDED: Opinion by
Justice Boyce   
Before Justices Frost, Brown and Boyce
14-07-01011-CV Robert W. Jackson v. Textron Financial Corporation and
Longagribusiness LLC N/K/A Farmtrac North America   
Appeal from 80th District Court of Harris County
Trial Court Judge:
Lynn M. Bradshaw-Hull

Afri-Carib Enterprised, Inc. v. Mabon Limited. (Tex.App.- Houston [14th Dist.] Mar.
31, 2009)(Yates) (
default judgment, bill of review, no proper notice of trial setting,
suspended attorney)
REVERSED AND REMANDED: Opinion by Justice Brock Yates   
Before Justices Brock Yates, Seymore and Boyce
14-07-00650-CV Afri-Carib Enterprises, Inc. v. Mabon Limited
Appeal from 165th District Court of Harris County  
Trial Court Judge:
John Thomas Wooldridge

World Environmental,LLC v. Wolfpack Environmental, LLC (Tex.App.- Houston
[1st Dist.] Mar. 12, 2009)(Jennings)(
default judgment, restricted appeal, suit on
account, quantum meruit)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS:
Opinion by Justice Jennings  
Before Justices Jennings, Keyes and Higley
01-08-00561-CV World Environmental, LLC v. Wolfpack Environmental, LLC  
Appeal from County Court at Law No 2 of Montgomery County
Trial Court Judge: Judge Jerry Winfree  

Ashworth v. Brzoska (Tex.App.- Houston [14th Dist.] Nov. 4, 2008)(Brown)
(
post-answer default judgment, denial of new trial reversed)
REVERSED AND REMANDED: Opinion by Justice Brown  
Before Justices Brock Yates, Guzman and Brown
14-07-00239-CV        Douglas Ashworth v. Richard Brzoska
Appeal from 164th District Court of Harris County
Trial Court
Judge: Martha Hill Jamison

Berkefelt v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Bland)
(
SAPCR modification, default judgment set aside, defective service, service of
citation)
(defective service under Rule 106 Order for alternative substitute service)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS:
Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland)
01-07-00526-CV Randall Earl Berkefelt v. Diane Lynne Jackson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler  

Berkefelt v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Bland)
(
SAPCR default judgment set aside, defective service)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS:
Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland)
01-07-00526-CV Randall Earl Berkefelt v. Diane Lynne Jackson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler  

Rava Square Homeowners Ass'n v. Swan (Tex.App.- Houston [14th Dist.] Sep.
30, 2008)(Boyce)
(
DWOP reversed, motion to reinstate, default judgment)
REVERSED AND REMANDED: Opinion by Justice Boyce  
Before Justices Brock Yates, Seymore and Boyce
14-07-00521-CV        Rava Square Homeowners Association v. Kevin J. Swan
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull

Approximately $14,980.00 v. The State of Texas (Tex.App. - Houston [14th Dist.]
Jun. 12, 2008)(Yates)(default judgment,
deemed admission, opportunity to rebut
presumption of proper service)  
REVERSED AND REMANDED: Opinion by Justice Brock Yates  
Before Justices Brock Yates, Guzman and Brown
14-07-00164-CV Approximately $14,980.00 v. The State of Texas
Appeal from 125th District Court of Harris County
CONCURRING:
Concurring Opinion by Justice Brown  

National Football League Players Inc. v. Balek's Bar-B-Q (Tex. App.- Houston [1st
Dist.] Mar. 6, 2008)(Nuchia) (
bill or review suit, default judgment on breach of
contract, BoC, counterclaim)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND
REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Nuchia
01-06-01106-CV National Football League Players Incorporated and National
Football League Players Association v. Blake's Bar-B-Q, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd  

Should default judgment resulting from death penalty sanctions in another
state be recognized and enforce in Texas?
Enviropower LLC v. Bear, Stearns & Co., Inc. (Tex. App.- Houston [1st Dist.] Feb.
21, 2008)(Hanks)(
domestication and enforcement of foreign judgment,
exception,
death penalty sanctions leading to default judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Keyes and Hanks
01-04-01111-CV Enviropower, L.L.C. v. Bear, Stearns & Co., Inc.
Appeal from 164th District Court of Harris County (
Hon. Martha Hill Jamison)

Post-answer default judgment must be supported with evidence, no-answer
default judgment not proper one an answer has been filed
Comunidad Balboa, LLC. v. City of Nassau Bay (Tex.App.- Houston [14th Dist.]
Feb. 19, 2008)(Hedges) (default judgment reversed,
trial court erred in granting
no-answer default judgment after answer was filed, default judgment not final
where other party remained in case)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justice Anderson, Senior Justice Murphy
14-07-00259-CV Comunidad Balboa, LLC v. City of Nassau Bay
Appeal from 164th District Court of Harris County (
Judge Martha Hill Jamison)

Appeals court panel divided on whether default judgment should be set aside
on motion for new trial
Hornell Brewing Co., Inc. v. Lara (Tex.App.- Houston [14th Dist.] Feb. 5, 2008)
(Yates) (default judgment,
motion for new trial, defective product, personal injury)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Fowler and Guzman
14-06-00602-CV Hornell Brewing Co., Inc. (a/k/a Arizona) v. Modesto Tony Lara
Appeal from 280th District Court of Harris County (Judge Tony Lindsay)  
Dissenting Opinion by Justice Fowler in Hornell Brewing Co., Inc. v. Modesto
Tony Lara

The Cadle Co. v. Bray, No.  01-06-00899-CV (Tex.App.- Houston [1st Dist.] Jan.
24, 2008)(Alcala) (jurisdiction, default judgment,
dormant judgment, res judicata)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
The Cadle Company v. Roy H. Bray
Appeal from Co Civil Ct at Law No 1 of Harris County (
Judge Jack Cagle)

Heggen v. Graybar Electric Co. (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)
(Yates)
[
default judgment, sufficiency of service, defective service of citation)

Parmer v. Hardcastle Parmer (Tex.App.- Houston [1st Dist.] Jul. 19, 2007)(Bland)
(
post-answer default judgement, family law case, divorce, paternity issue)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Hanks and Bland
01-04-01225-CV Mark Anthony Parmer v. Helen Christine Hardcastle Parmer
Appeal from 387th District Court of Fort Bend County (Hon. Robert J. Kern)

No answer default judgment based on service of citation by certified mail
sustained - award of unliquidated damages reversed and remanded
Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default
judgment, service by certified mail,
insufficient proof of unliquidated damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND
REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Higley
Before Justices Taft, Hanks and Higley
01-06-00924-CV Kerry G. Fellows v. Rasheed Adams
Appeal from 127th District Court of Harris County (
Hon. Sharolyn Wood)

Notice of appeal was given too late
Alazov . Chmeleva (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(per curiam)
(
default divorce, alternative, service, notice of appeal untimely, no jurisdiction to
entertain appeal)
DISMISS APPEAL: Per Curiam
Before Justices Taft, Hanks and Higley
01-06-00511-CV Andrei Almazov v. Marina Chmeleva
Appeal from 310th District Court of Harris County (
Hon. Lisa Millard)

Restricted Appeal Fails
Bank Repossessed Car Co. v. Who's Calling, Inc. (Tex.App.- Houston [14th Dist.]
Sep. 4, 2007)(Anderson)(
restricted appeal, default, service of process on
Secretary of State)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and Seymore
14-05-01251-CV Bank Repossessed Car Co. d/b/a Thirty Car Sales v. Who's
Calling, Inc.
Appeal from County Civil Court at Law No 2 of Harris County (
Judge Gary Michael
Block)

Default Judgments in Family Court Have Different Requirements - Prove-up
Essential
Unlike other civil cases in which a defaulting defendant is presumed to admit the
petition’s allegations regarding liability and liquidated damages, the allegations
in a divorce petition are not admitted by a defaulting defendant.  Tex. Fam. Code
Ann. § 6.701 (Vernon 2006); Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied); see Sandone v. Miller-Sandone, 116 S.W.
3d 204, 207 (Tex. App.—El Paso 2003, no pet.) (noting that divorce petition may
not be taken as confessed if respondent does not file answer).

Vazquez v. Maria Vazquez (Tex.App.- Houston [14th Dist.] May 19, 2007)(Seymore)
(default divorce decree, restricted appeal,
family law, divorce, appeal from default
judgment]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice
Seymore
Before Justices Frost, Seymore and Guzman
14-05-01257-CV Amadeo Vazquez v. Maria Vazquez
Appeal from 300th District Court of Brazoria County (Judge K. Randall Hufstetler)

Default Judgment in Suit Affecting the Parent Child Relationship (SAPCR)
Affirmed
Harris v. Burks (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Radack)(SAPCR,
default judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00128-CV        William Francis Harris, Sr. v. Thyra Burks
Appeal from 247th District Court of Harris County (
Hon. Bonnie Hellums)  

Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town &
Country Village (Tex.App.- Houston [1st Dist.] May 31, 2007)(Jennings)
(
substituted service on the Secretary of State was defective and the default
judgment in this case cannot stand)(default judgment, defective service, real
estate law, deed, constable sale, set aside)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS: Opinion by Justice Jennings
Before Justices Nuchia, Jennings and Higley
01-06-00068-CV
Marrot Communications, Inc. v. Town & Country Partnership
d/b/a Town & Country Village-
Appeal from 61st District Court of Harris County (
Hon. John Donovan)

Ataya v. State of Texas (Tex.App.- Houston [14th Dist.] Feb. 13, 2007)(Yates)
(
post-answer default, motion for new trial, MNT)
AFFIRMED: Opinion by Justice Brock Yates
(Before A, Justices Brock Yates and Seymore)
14-05-01264-CV        Wafic Tawfic Ataya, Sawssan Ataya a/k/a Sawssan
Mohamad Elehikh-Issa and Victory Wholesale, Inc. v. The State of Texas
Appeal from 334th District Court of Harris County (
Judge Sharon McCally)

Harveston Securities Inc. v. Narnia Investments Ltd. (Tex.App.- Houston [14th
Dist.] Jan. 11, 2007)(Frost) (
restricted appeal, default judgment, sufficiency of
service)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00206-CV        Harveston Securities Inc. v. Narnia Investments L.T.D.
Appeal from 270th District Court of Harris County
Dissenting Opinion by Justice Edelman In Harveston Securities Inc. v. Narnia   

Heggen v. Graybar Electric Co. (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)
(Yates)
[
default judgment, sufficiency of service, defective service of citation)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-06-00058-CV        Allen Heggen and Paula Heggen v. Graybar Electric
Company, Inc.
Appeal from 234th District Court of Harris County (
Judge Reese Rondon)

OPINION EXCERPTS

Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)
(default judgment, service by certified mail,
insufficient proof of
unliquidated damages)

MEMORANDUM OPINION

This is an appeal from a no-answer default judgment rendered against
appellant, Kerry G. Fellows, in favor of appellee, Rasheed Adams. In three points
of error, Fellows contends that the trial court erred by rendering the default
judgment because (1) service was defective, (2) Adams's "pleading was
insufficient" to demonstrate liability, and (3) no hearing was held regarding the
unliquidated damages that were awarded.

We affirm in part, and reverse and remand in part.

Service of Process

In his first point of error, Fellows contends that the trial court erred by rendering a
default judgment against him because service of process was defective.

A default judgment cannot withstand a direct attack by a defendant who shows
that he was not served in strict compliance with the rules governing service of
process. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Barker
CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.--Houston [1st
Dist.] 1999, no pet.). There are no presumptions of valid issuance, service, or
return of citation when examining a default judgment. Silver, 884 S.W.2d at 152;
Ampro, Inc., 989 S.W.2d at 792. Jurisdiction over the defendant must affirmatively
appear by a showing of due service of process, independent of recitals in the
default judgment. Ampro, Inc., 989 S.W.2d at 792.

Texas Rule of Civil Procedure 106, which governs service of citation, provides, in
pertinent part, that citation must be served by delivering a copy of the citation and
petition to the defendant, in person, or by "mailing to the defendant by registered
or certified mail, return receipt requested, a true copy of the citation with a copy of
the petition attached thereto." Tex. R. Civ. P. 106. When a citation is served by
registered or certified mail as authorized by Rule 106, the officer's return must
"contain the return receipt with the addressee's signature." Tex. R. Civ. P. 107.

Here, the record shows that service on Fellows was by a deputy constable on
November 10, 2005, and that it was "[e]xecuted at P.O. Box 36324 Houston, TX
77236, by mailing to . . . Kerry G. Fellows" by "registered/CERTIFIED MAIL with
delivery RESTRICTED TO ADDRESSEE ONLY." The return is signed by the
deputy and contains the return receipt. The record shows that "P.O. Box 36324
Houston, TX 77236" is Fellows's address. The return receipt bears an illegible
signature that Adams asserts, and Fellows does not dispute, is Fellows's
signature. Fellows contends that service was defective because the "Restricted
Delivery" box is not checked on the return receipt.

Rule 106 requires that citation be mailed to the defendant "by registered or
certified mail, return receipt requested," with a copy of the petition attached. Tex.
R. Civ. P. 106. Rule 106 no longer requires "restricted delivery." Fellows does not
direct us to any authority, and we find none, that currently holds that failure to
check the box for restricted delivery on the return receipt constitutes defective
service.

Accordingly, Fellows's first point of error is overruled.

Conclusion

We reverse and remand the trial court's judgment as to the issue of damages.
See Heine, 835 S.W.2d at 86 (explaining that, when no-evidence point is
sustained as to
unliquidated damages resulting from no-answer default
judgment, appropriate disposition is to remand for new trial on issue of
unliquidated damages); Morgan, 675 S.W.2d at 734 (explaining that new trial is
limited to issue of damages because liability is already established by default).
We affirm the trial court's judgment in all other respects.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.

=====================================

Standard of Review

An appellant filing a restricted appeal must demonstrate the following elements:
(1) the appellant appealed within six months after the judgment was rendered;
(2) the appellant was a party to the suit; (3) the appellant did not participate in the
actual trial of the case; and (4) error appears on the face of the record.   See Tex.
R. App. P. 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.
1999).  Because the parties do not dispute that the first three elements of a
restricted appeal have been met, we address whether error appears on the face
of the record.

Thrifty makes two arguments in support of its claim of defective service.  In its
first argument, Thrifty contends service of process was defective because the
citation and return are not consistent.  In its second argument, Thrifty contends
service was defective because the appellate record does not contain a certificate
from the Secretary of State affirmatively showing that the Secretary of State
forwarded a copy of the petition to Thrifty.[2]

II. The Citation and Return are Consistent

In its first argument, Thrifty contends the citation and return are not consistent
because the citation purports to serve Manoocher Babaahmadi at Thrifty's
registered office, and the return purports to serve Thrifty through the Secretary of
State.  Thrifty does not claim it was improperly named in Plaintiff's First Amended
Original Petition, the citation, or the return.

In reviewing a default judgment, there is no presumption in favor of valid
issuance of service of process.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151,
152 (Tex. 1994); N. C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 717 (Tex.
App.- Austin 2003, pet. denied).  In order for a default judgment to withstand
direct attack, strict compliance with the rules of service of citation must
affirmatively appear on the record.  Whitworth, 124 S.W.3d at 718.  Failure to
affirmatively show strict compliance with the Rules of Civil Procedure renders the
attempted service of process invalid and of no effect. Id.  Texas Rule of Civil
Procedure 107 provides that A[t]he return of the officer or authorized person
executing the citation shall be endorsed on or attached to the same; it shall state
when the citation was served and the manner of service and be signed by the
officer officially or by the authorized person."  Tex. R. Civ. P. 107.  The recitations
in the return are prima facie evidence of the facts recited in the return.  Primate
Constr., Inc., 884 S.W.2d at 152.      

In this case, contrary to Thrifty's contention, the citation is directed "To: Bank
Repossessed Car Co., a Corporation Doing Business as Thrifty Car Sales
Incorporated by the Secretary of State of the State of Texas."  The citation also
recites Thrifty's address in the following manner: "Defs. Adrs: Manoocher
Babaahmadi, at the Registered Office, 7723 Moonmist, Houston, TX 77036."[3]  
The name of Thrifty's registered agent and the address of Thrifty's registered
office were included in the citation to aid the Secretary of State in attempting
service upon Thrifty by certified mail, which it did.[4]  The language of the citation
directs service upon Thrifty "by the Secretary of State of the State of Texas."  The
officer's return provides that copies of the petition and citation were delivered to
Thrifty "by delivering to Roger Williams, Secretary of State of the State of Texas, at
1019 Brazos Street, Austin, Texas, 78701, by delivering to LORENA BERNAL
designated agent for service for the Secretary of State . . . ."

Who's Calling's First Amended Original Petition alleges:

The Defendant corporation, a Texas domestic corporation, a corporation for profit
and subject to the provisions of the Texas Business Corporation Act,
incorporated by Articles of Incorporation issued by the Secretary of State of the
State of Texas, may be served with citation pursuant to Section B of said Article
2.11, by reason of the following premises.  The Defendant corporation has failed
to maintain a Registered Agent in the State of Texas.  The Defendant=s
Registered Agent cannot, with reasonable diligence, be found at the Registered
Office.  Therefore, the Secretary of State of the State of Texas is an agent for the
Defendant corporation and process may be served upon the Secretary of State of
Texas as agent for the Defendant corporation.[5]

Our review of the papers on file with the trial court at the time it entered the
default judgment against Thrifty, including the amended petition, citation, and
return, clearly reflects that the amended petition and citation were served upon
Thrifty through the Secretary of State, which was identified as Thrifty's registered
agent.  See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d
884, 884-85 (Tex. 1985) (holding the name of the agent for service of process
alleged in plaintiff's petition must match the name of the agent upon who
process was served as reflected in the return).  We overrule Thrifty's argument
that error appears on the face of the record because the citation and return are
not consistent.

III. A Certificate From the Secretary of State is Part of the Appellate Record

In its second argument, Thrifty claims service was defective because the record
does not contain a certificate from the Secretary of State showing that the
Secretary of State forwarded a copy of the process to Thrifty.  See Whitney v. L & L
Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973) (holding a showing in the record that
the Secretary of State forwarded a copy of the process is essential to establish
the court=s jurisdiction).  The supplemental clerk's record filed in this court on
March 16, 2007 contains a certificate issued by the Secretary of State on May 17,
2005.  The certificate provides that a copy of the citation and Plaintiff's First
Amended Original Petition were received by the Secretary of State and
forwarded, by certified mail, to Bank Repossessed Car Co., Manoocher
Babaahmadi, 7723 Moonmist, Houston, TX 77036.  The certificate further
provides, :The PROCESS was returned to this office on May 16, 2005, bearing
the notation Attempted - Not Known." Because the record contains a certificate
from the Secretary of State affirmatively showing that the Secretary of State
forwarded a copy of the process to Thrifty, we conclude error is not apparent on
the face of the record and overrule appellant=s second argument.  

Appellant's first issue is overruled.

Conclusion

Having considered and overruled appellant=s single issue on appeal, we affirm
the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed September 4, 2007.

Panel consists of Justices Anderson, Fowler, and Seymore.

--------------------------------------------------------------------------------

[1]  Article 2.11(B) provides:

Whenever a corporation shall fail to appoint or maintain a registered agent in
this State, or whenever its registered agent cannot with reasonable diligence be
found at the registered office, then the Secretary of State shall be an agent of
such corporation upon whom any such process, notice, or demand may be
served. . . .

Tex. Bus. Corp. Act Ann. art. 2.11(B). In its First Amended Original Petition,
Who=s Calling alleges Thrifty=s registered agent cannot, with reasonable
diligence, be found at the registered office.  Thrifty makes no arguments on
appeal regarding the use of reasonable diligence by Who=s Calling.

[2]  Such a certificate from the Secretary of State is known as a "Whitney
certificate" based on the style of the case in which the Texas Supreme Court first
held such a certificate was necessary.  See Whitney v. L & L Realty Corp., 500 S.
W.2d 94, 96 (Tex. 1973); Harvestons Securities, Inc. v. Narnia Inv., Ltd., 218 S.W.
3d 126, 131 n.6 (Tex. App.- Houston [14th Dist.] 2007, pet. filed).

[3]   Thrifty's registered agent is Manoocher Babaahmadi.  Thrifty's registered
office is located at 7723 Moonmist, Houston, TX 77036.

[4]  A certificate issued by the Secretary of State on May 17, 2005 provides that a
copy of the citation and Plaintiff's First Amended Original petition was received by
the Secretary of State and forwarded, by certified mail, to "Bank Repossessed
Car Co., Manoocher Babaahmadi, 7723 Moonmist, Houston, TX 77036."

[5]  In the context of a no-answer default judgment, these factual statements in
the amended petition are deemed admitted. Holt Atherton Indus. v. Heine 835 S.
W.2d 80, 83 (Tex. 1992).

=====
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8/1/09

TEXAS SUPREME
COURT DEFAULT
JUDGMENT CASES

Levine v. Shackelford, No. 06-0553 (Tex.
Jan. 11, 2008)(per curiam) (
default
judgment, motion to set aside,
standard, motion for new trial, Craddock
test)

Proulx v. Wells, No. 06-0258 (Tex. Aug
31, 2007)(per curiam)(service of
citation, due diligence)

Hubicki v. Festina A. Lichtenstein
Foundation, No. 05-0357 (Tex. Jun. 1,
2007)(per curiam)(default judgment,
insufficient service of process)

In Re Discount Rental, Inc., No. 05-0249
(Tex. Mar. 2, 2007)(per curiam)(void
judgment, defective service, lack of
authority to order sale, enforcement of
judgment)

Fidelity & Guar. Ins. Co. v. Drewery
Constr. Co., 186 S.W.3d 571(Tex. 2006).
Fidelity and Guaranty Ins. Co. v. Drewery
Construction Co., No. 05-0295 (Tex.
Feb. 24, 2006)(per curiam opinion)
(default judgment, service of process)

Wachovia Bank v. Gilliam, No. 05-0903
(Tex. Feb. 9, 2007)(per curiam)
Terms:
restricted appeal, default
judgment, sufficiency of service of
process on out-of-state defendant.
Statute requires the Secretary to forward
service to a foreign corporation’s
“principal office.” See Tex. Bus. Corp.
Act art. 8.10(B). Nothing in the record
shows 920 King Street was Wachovia’s
principal office either.
Holding and decision: When a default
judgment is challenged by restricted
appeal, there are no presumptions in
favor of valid service. See
Fid. & Guar.
Ins. Co. v. Drewery Const. Co., 186 S.W.
3d 571, 573 (Tex. 2006).