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Motion for=20 Rehearing Overruled; Reversed and Remanded; Majority and = Dissenting=20 Opinions Issued = October=20 31, 2006 Withdrawn and Substitute Majority and Dissenting Opinions = filed=20 January 11, 2007.

 

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-05-00206-CV

____________

 

HARVESTONS=20 SECURITIES, INC., = Appellant

 

V.

 

NARNIA=20 INVESTMENTS, LTD., = Appellee

 

 

On Appeal from the = 270th Judicial District

Harris County,=20 Texas

Trial Court Cause = No. 00-39672-A

 

 

S U B S T=20 I T U T E   M A J O R I T Y   O P I N I O=20 N[1]

Appellant=20 Harvestons Securities, Inc., defendant in the trial court, brings = this=20 restricted appeal of a default judgment rendered against it and in = favor=20 of appellee Narnia Investments, Ltd., the plaintiff in the trial=20 court.  In three issues, Harvestons contends that service of = process=20 was defective and therefore the trial court erred in rendering the = default=20 judgment.  We reverse and remand.

I.  =20 Factual and Procedural Background

Narnia=20 Investments filed suit against several defendants, including = Harvestons.[2] =20 Narnia=3Ds petition=20 stated:

Harveston = Securities, Inc. is=20 a securities dealer registered with the Securities and Exchange=20 Commission, the National Association of Securities Dealers, Inc. = and the=20 State of Texas (and as such, may be served with process by serving = the=20 Texas Securities Commissioner at 200 E. 10th Street, 5th Floor, = Austin,=20 Texas 78701).[3]

The=20 district clerk issued citation directed to AHarveston=20 Securities Inc. by serving the Texas Securities Commissioner[,] = 200 E 10th=20 Street[,] 5th Floor Austin[,] Texas 78701.@  The=20 return of service indicates that the citation was served on = September 7,=20 2000, at A200 E.=20 10th, Austin, Tx. 78701 in Travis County . . . by delivering to = Harveston=20 Securities, by serving the Texas Securities Commissioner, by = delivering to=20 JoAnn Kocerek defendant, in person, a true copy of this Citation = together=20 with the accompanying copy(ies) of the Petition attached=20 thereto.@  =20

Harvestons=20 did not file an answer or otherwise appear in the case, and Narnia = moved=20 for default judgment.  The trial court granted an = interlocutory=20 default judgment in favor of Narnia and against Harvestons for = $365,000,=20 plus attorney=3Ds=20 fees,  prejudgment interest, and postjudgment interest.  = Two=20 months later, the trial court severed the interlocutory default = judgment=20 against Harvestons from the remaining claims against the other=20 defendants.  The trial court then rendered a final default = judgment=20 against Harvestons awarding the same relief as in the = interlocutory=20 judgment.

Five=20 months after this final judgment, Harvestons filed an unsworn = motion for=20 new trial claiming it had no actual knowledge of the pending = litigation=20 before November 15, 2004.  Harvestons sought to have the = default=20 judgment set aside.  The trial court lacked plenary power = over=20 Harvestons=3Ds untimely=20 motion and denied it.  Harvestons then filed a timely = restricted=20 appeal.

II.  Issues=20 Presented =20

Harvestons=20 asserts three similar issues on appeal, all of which are premised = on=20 Harvestons=3Ds=20 contention that the citation, service, and the return of service = do not=20 comply with Texas Rules of Civil Procedure 16, 99, 106, and = 107. =20 More specifically, Harvestons asserts that service of process was = invalid=20 because:

(1)    =20 The return of service shows that process was delivered to someone = other=20 than the one named in the citation.  The person named in the = citation=20 was the Texas Securities Commissioner, and the return of service = states=20 that process was delivered to AJoAnn = Kocerek.@

(2)    =20 The citation and the return of service do not show that the person = servedCJoAnn = KocerekChad the authority = to accept=20 process on behalf of Harvestons or the Texas Securities=20 Commissioner.

(3)    =20 The return of service does not show a valid manner of = service.

 

III. =20 Standard of Review

Harvestons=20 may file a restricted appeal if (1) it filed notice of restricted = appeal=20 within six months of judgment, (2) it was a party to the = underlying suit,=20 (3) it did not participate in the hearing resulting in the = judgment on=20 appeal and did not file timely postjudgment motions or requests = for=20 findings of fact and conclusions of law, and (4) it shows error = apparent=20 on the face of the record.  Alexander v. = Lynda=3Ds=20 Boutique, 134 S.W.3d=20 845, 848 (Tex. 2004).  The scope of a restricted appeal = (formerly=20 writ of error) is limited to error on the face of the = record.  See=20 Norman Communications v. Texas Eastman, 955 S.W.2d 269, 270 = (Tex.=20 1997) (per curiam).  Notably, in restricted appeals, = A[t]here=20 are no presumptions in favor of valid issuance, service, and = return of=20 citation.@ =20 Fidelity & Guar. Ins. Co. v. Drewery Const. Co., = 186 S.W.3d=20 571, 573B74 (Tex.=20 2006); Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 = (Tex.=20 1994).  This last rule must be strictly observed because = presumptions=20 can neither be confirmed nor rebutted by evidence in an appellate=20 court.  Fidelity & Guar. Ins. Co., 186 S.W.3d at=20 573.  Thus, for example, if the citation says an amended = petition was=20 attached (which named the defaulted party) and the return says the = document served was the original petition (which did not name the=20 defaulted party), an appellate court cannot tell from the record = which is=20 true.  Id.  Similarly, if the petition says the=20 registered agent for service is AHenry=20 Bunting, Jr.@ = but the=20 citation and return reflect service on AHenry=20 Bunting,@ = an=20 appellate court cannot tell whether the two names mean the same or = different persons.  See Uvalde Country Club v. Martin = Linen Supply=20 Co., 690 S.W.2d 884, 885 (Tex. 1985).  Recognition of = this lack=20 of legal presumptions in favor of valid issuance, service, and = return of=20 citation is critical to proper resolution of this restricted=20 appeal.

IV. =20 Analysis

In its=20 second issue, Harvestons contends that service of process was = defective=20 because the return did not show that the person servedCJoAnn=20 KocerekChad the=20 authority to accept process on behalf of Harvestons or the Texas=20 Securities Commissioner.[4] =20 In response, Narnia contends that service was perfected because = the record=20 reflects that service was made on the Texas Securities = Commissioner, who=20 thereafter properly forwarded process to Harvestons.  In = support of=20 this argument, Narnia relies primarily on the Capitol Brick = line of=20 cases.  See, e.g., Capitol Brick, Inc. = v. Fleming=20 Mfg. Co., 722=20 S.W.2d 399, 401 (Tex. 1986).  =20 Before reaching the issue of whether the return demonstrates that = JoAnn=20 Kocerek had the authority to accept process on behalf of = Harvestons or the=20 Texas Securities Commissioner, we address Narnia=3Ds argument=20 that, under the Capitol Brick line of cases, service was = proper in=20 this case.

The=20 Capitol Brick line of cases is based on a statute providing = that=20 all certificates issued by the Secretary of State (hereinafter=20 ASecretary@) in=20 accordance with the Texas Business Corporation Act shall be taken = and=20 received in all courts as prima facie evidence of the facts = therein=20 stated.  See Tex. Bus.=20 Corp. Act art. 9.05 (Vernon 2003); Campus Invs., Inc. v. = Cullever, 144 S.W.3d 464, 465 (Tex. 2004) (relying on article = 9.05 in=20 Capitol Brick analysis and agreeing with analysis in = G.F.S.=20 Ventures, Inc. v. Harris); G.F.S. Ventures, Inc. v. = Harris, 934=20 S.W.2d 813, 818 (Tex. App.CHouston=20 [1st Dist.] 1996, no writ) (relying on article 9.05 in Capitol=20 Brick analysis).  Under its unambiguous language, article = 9.05 of=20 the Texas Business Corporation Act does not apply to certificates = issued=20 by the Texas Securities Commissioner (hereinafter ACommissioner@). =20 See Tex. Bus. Corp. = Act=20 art. 9.05.  Although Narnia asserts that the = Capitol=20 Brick line of cases should apply, Narnia does not identify any = case=20 applying this line of cases to certificates issued by the = Commissioner or=20 to service on the Commissioner, and our independent research has = not=20 revealed any such case.  Therefore, this issue appears to be = one of=20 first impression. 

A.     =20 Should the Capitol Brick line of cases be extended so as to = apply=20 to certificates from the Texas Securities = Commissioner?

 

Article=20 581B30 of the=20 Texas Securities Act is the only part of that statute that is = arguably=20 similar to article 9.05 of the Texas Business Corporation = Act. =20 See Tex. Rev. = Civ. Stat.=20 Ann. art. 581B30 (Vernon=20 Supp. 2005) (stating, in pertinent part, that A[c]opies=20 of all papers, instruments, or documents filed in the office of = the=20 Commissioner, certified by the Commissioner, shall be admitted to = be read=20 in evidence in all courts of law and elsewhere in this state in = all cases=20 where the original would be admitted in evidence@). =20 Whereas article 9.05 states that facts stated in certificates of = the=20 Secretary are received in all courts as prima facie evidence, the = Texas=20 Securities Act states only that copies of documents filed with the = Commissioner shall be admitted into evidence in place of the = originals, if=20 the copies are certified by the Commissioner and if the originals=20 otherwise would be admissible.  Compare Tex. Bus. Corp. Act = art. 9.05=20 with Tex. Rev. = Civ. Stat.=20 Ann. art. 581B30. =20 Allowing the admission of copies certified by the Commissioner if = the=20 originals would be admissible is very different from accepting as = true the=20 factual statements stated within the Secretary=3Ds=20 certificate.[5]

The=20 Capitol Brick line of cases is not grounded simply on the = presence=20 of a certificate from a government official; rather, cases in this = line=20 also are based on the following premises:

(1) =     The=20 Secretary has stated in a certificate that a citation and petition = in the=20 case were served on the Secretary in accordance with the Business=20 Corporations Act; and

(2)    =20 Article 9.05 requires Texas courts to receive such certificates as = prima=20 facie evidence of the facts stated therein.[6] =20

See=20 Cullever, 144 S.W.3d=20 at 465B66=20 (relying on certificate from Secretary stating Secretary had been = served=20 with citation and petition and forwarded them to defendant by = certified=20 mail); Capitol=20 Brick, Inc., 722 S.W.2d at = 400B01 (same);=20 G.F.S. Ventures, Inc., 934 S.W.2d at 818 (same); = Vanguard Invs.=20 v. Fireplaceman, Inc., 641 S.W.2d 655, 656  (Tex.=20 App.CHouston=20 [14th Dist.] 1982, writ ref'd n.r.e.) (same).  Significantly, = the two=20 certificates of the Commissioner in this case contain neither of = these=20 predicates.  Both state in pertinent part as=20 follows:

I, DENISE=20 VOIGT CRAWFORD, Securities Commissioner of the State of Texas, do = hereby=20 certify that I have caused to be made a careful examination of the = records=20 of the State Securities Board, which records are kept under my = supervision=20 and control under the provisions of [the Texas Securities Act] and = from=20 such examination, I do further certify that the attached [number = of=20 attached pages] pages constitute a true and correct record of = information=20 filed with the Securities Commissioner.

Unlike the=20 certificates issued from the Secretary of State, these two = certificates do=20 not state: (1) that the Commissioner received or was served with a = citation or petition in any case or (2) that the attached = documents=20 accurately reflect the actions or events stated or indicated=20 therein.  Because the certificates in question do not state = that a=20 citation and petition in the case were served on the Commissioner, = the=20 Capitol Brick line of cases does not apply.[7]=20 See Cullever, 144 S.W.3d at 465B66;=20 Capitol Brick,=20 Inc., 722=20 S.W.2d at 400B01;=20 G.F.S. Ventures, Inc., 934 S.W.2d at 818; Vanguard=20 Investments, 641 S.W.2d at 656.  Although the = Commissioner may=20 very well have been served with process as Harvestons=3Ds agent=20 and may have forwarded the citation and petition on to Harvestons, = a=20 letter from the Commissioner is not a proper substitute for a = return of=20 service showing strict compliance with the rules for service.=20

Furthermore,=20 the Commissioner=3Ds=20 certificates do not state that the one-page letter contained in = her files=20 accurately reflects the actions or events stated or indicated in = the=20 letter.[8]=20 Although the letter does refer to the cause number in the = unsevered case=20 in the trial court, the letter does not state the Secretary has = been=20 served as Harvestons=3Ds agent=20 for service of process.  It is addressed to Harvestons and = indicates=20 it was sent by regular and certified mail.  The body of this = letter=20 states in its entirety:

The Securities = Commissioner=20 has received process in the above-referenced lawsuit.  Since=20 Harveston Securities, Inc. [sic] is named as a defendant, we are=20 forwarding process to you.

Though the=20 letter states that the petition names Harvestons as a defendant, = the=20 letter does not state that the Commissioner received citation = addressed to=20 Harvestons.[9] =20 The documents attached to the certificates in question do not = reflect a=20 copy of any enclosure that may have accompanied the letter.  = Nor do=20 these documents reflect that Harvestons received any letter from = the=20 Commissioner.[10]

=

Texas=20 courts strictly enforce compliance with service-of-process = statutes. =20 See Whitney v. L&L Realty Corp., 500 S.W.2d 94, 97 = (Tex. 1973)=20 (reversing a default judgment because the record included proof of = service=20 on the Secretary, but not a certificate that the Secretary = had=20 forwarded process to the defendant); World Distributors, Inc. = v. Knox,=20 968 S.W.2d 474, 478 (Tex. App.CEl Paso=20 1998, no pet.) (finding service defective under section 17.045 = where=20 nothing in the record affirmatively established that the address = provided=20 to the Secretary was the home office of the defendants).  = Substantial=20 compliance will not suffice. Thus, even presuming that Harvestons = had=20 actual knowledge of Narnia=3Ds lawsuit,=20 it still would not be proper to affirm the default judgment on = this=20 basis.[11] =20 See North Carolina Mut. Life Ins. Co. v. Whitworth, 124 = S.W.3d 714,=20 721 (Tex. App.CAustin=20 2003, pet. denied)  (concluding that = despite the=20 indications in the record that appellant eventually received a = copy of the=20 citation and petition, the service of citation did not strictly = comply=20 with the rules of procedure and therefore the default judgment = cannot=20 stand).

The strict-compliance = requirements in the default judgment context preclude courts from = making=20 even the most obvious and rational inferences.  See, e.g., = Verlander Enter., Inc. v. Graham, 932 S.W.2d 259, 262 (Tex.=20 App.CEl Paso 1996, no = writ) (holding=20 that a notation of AJim Gore@ rather than = A[corporation] through = its=20 vice‑president, Jim Gore@ on return did not = establish=20 that person served was in fact corporation=3Ds agent for service = of process,=20 nor did it establish that corporation was served, and thus return = was=20 insufficient to convey jurisdiction over corporation upon trial=20 court).  The=20 certificates in question and the documents attached thereto are = not the=20 legal equivalent of either a proper return of service or the=20 Secretary=3Ds=20 statements in a certificate showing proper service of the citation = and=20 petition under the applicable statute.[12] =20 Therefore, we decline to extend the Capitol Brick line of = cases to=20 the certificates in this case.  See Tex.=20 R. Civ. P.  107; North = Carolina=20 Mut. Life Ins. Co., 124 S.W.3d at 721.  Because=20 this line of cases does not apply, our record must reflect strict=20 compliance with the rules for issuance of citation, service, and = return of=20 service.  B.     Does=20 the record reflect that the return of service for process=20 vested the=20 trial court with jurisdiction to render the default judgment?=20

A default=20 judgment cannot withstand a direct attack by a defendant who shows = that it=20 was not served in strict compliance with the rules governing = service of=20 process.  Primate Constr., Inc., 884 S.W.2d at = 152.  In=20 contrast to the usual rule that all presumptions will be made in = support=20 of a judgment, in a restricted appeal there are no presumptions of = valid=20 issuance, service, or return of citation when examining the = default=20 judgment. See Id.; Massachusetts Newton Buying Corp. v.=20 Huber, 788 S.W.2d 100, 101 (Tex. App.CHouston=20 [14th Dist.] 1990, no writ).  In the absence of an appearance = by the=20 defendant in question, there must be an affirmative showing of due = service=20 of process, independent of the recitations in the default = judgment. =20 Huber, 788 S.W.2d 100, 101.

The=20 recitations in the return of citation are prima facie evidence of = the=20 facts recited in the return.  Primate Constr., Inc., = 884=20 S.W.2d at 152.  The recitations in the return of citation = carry=20 enough weight that they cannot be rebutted by the uncorroborated = proof of=20 the moving party.  Id.  Further, a return of = citation=20 does not cease to be prima facie evidence of the facts of service = simply=20 because the facts are recited in a form rather than filled in by = the=20 process server.  Id.  It is the responsibility of = the=20 party requesting service, not the process server, to see that = service is=20 properly accomplished.  See id. This responsibility = extends to=20 seeing that the service is adequately reflected in the record.=20  Id.  If proper service is not affirmatively = shown in the=20 record, then error exists on the face of the record and a default = judgment=20 cannot stand.  Id.

Texas Rule=20 of Civil Procedure 107, which governs the return of citation, = reads in=20 pertinent part:

The return=20 of the officer or authorized person executing the citation shall = be=20 endorsed on or attached to the same; it shall state when the = citation was=20 served and the manner of service and be signed by the officer = officially=20 or by the authorized person.

Tex.=20 R. Civ. P. 107. =20 The return of citation is not a trivial or merely formalistic = document.=20 See Primate Constr., Inc., 884 S.W.2d at 152.  If any = of these=20 requirements are not met, the return of citation is fatally = defective and=20 will not support a default judgment under direct attack.  = See=20 McGraw‑Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex.=20 App.CHouston=20 [1st Dist.] 1992, writ denied).

In this=20 case, the return of service indicates that the citation was = executed on=20 September 7, 2000, at A200 E.=20 10th, Austin, Texas 78701 in Travis County . . . by delivering to=20 Harvestons Securities, by serving the Texas Securities = Commissioner, by=20 delivering to JoAnn Kocerek, defendant, in person, a true copy = of this=20 citation together with the accompanying copy of the petition = attached=20 thereto.@ =20 (emphasis added).  Harvestons contends that the return of = service is=20 defective because there is no showing in the record that JoAnn = Kocerek is=20 authorized to accept service on behalf of it or the Texas = Securities=20 Commissioner.  

The face=20 of the record does not identify Jo Ann Kocerek or her status or=20 affiliation,  if any, with the Texas Securities = Commissioner. =20 Neither the return nor any other portion of the record designates = Jo Ann=20 Kocerek as an authorized representative of the Commission or = indicates=20 that she has the authority to receive service on behalf of = Harvestons or=20 the Commissioner.  Indeed, it is simply not possible to = determine=20 from the record who Jo Ann Kocerek is or whether she is an agent=20 authorized to accept service on behalf of either the Commissioner = or=20 Harvestons.  Without an indication on the face of the record = of her=20 capacity or authority, if any, to receive service, the granting of = the=20 default judgment was improper.  Compare Reed Elsevier, = Inc. v.=20 Carrollton‑Farmers Branch Indep. Sch. Dist., 180 S.W.3d = 903, 905 (Tex.=20 App.CDallas=20 2005, pet. denied) (concluding that return of service was = defective=20 because it did not indicate the capacity of ADanielle=20 Smith@ = or why=20 she was served with process); and Benefit Planners L.L.P. v. = RenCare,=20 Ltd., 81 S.W.3d 855, 861 (Tex. App.BSan=20 Antonio 2002, pet. denied) (holding that service was defective = because the=20 return did not recite that the citation was delivered to = ABenefit=20 Planners through its registered agent.@);=20 Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, = 793 (Tex.=20 App.CHouston=20 [1st Dist.] 1999, no pet.) (holding that the return showing = service on=20 AJames=20 Barker@ = does not=20 establish that he was defendant=3Ds agent or=20 that Barker CATV Construction, Inc. was served); and Galan = Enter. v. G.=20 Wil-Tex Co., Inc., No. 01‑92‑01246‑CV, 1993 = WL 471403, at *=20 1B2 (Tex.=20 App. CHouston=20 [14th Dist.], Nov. 18, 1993, no pet.) (concluding that return of = service=20 was invalid because party failed to establish that Barbara Galan = was in=20 fact a person authorized to accept service) (not designated for=20 publication); with Pleasant Homes Inc. v. Allied Bank of = Dallas,=20 776 S.W.2d 153, 154 (Tex. 1989) (holding that the return of = service=20 was sufficient where the return=3Ds=20 reference to a AV.P.@ = was=20 deemed prima facie evidence of the person=3Ds=20 identity).  Harvestons has established error on the face of = the=20 record.  Service of process was defective.  Therefore, = the trial=20 court erred in granting a default judgment against = Harvestons. =20 Accordingly, we sustain Harvestons=3Ds second=20 issue.[13] =20       

We reverse=20 the trial court=3Ds default=20 judgment and remand this case for further proceedings consistent = with this=20 opinion.

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

Judgment rendered; = Majority=20 Opinion of October 31, 2006 Withdrawn and Substitute Majority = Opinion=20 filed January 11, 2007.

Panel=20 consists of Justices Anderson, Edelman, and Frost.  (Edelman, = J.,=20 dissenting).


[1]  We overrule=20 appellee=3Ds motion for = rehearing. The=20 majority opinion of October 31, 2006 is withdrawn, and this = Substitute=20 Majority Opinion is issued in its place.

[2]  Jon Ginder is also named as a = plaintiff=20 asserting claims against Harvestons.  Ginder, however, did = not move=20 for or obtain a default judgment against Harvestons, and=20 Ginder=3Ds claims, if any, were not severed from = the main=20 action by the trial court=3Ds subsequent severance = order.

[3]  The petition, citation, and = return of=20 service all use the name AHarveston Securities, Inc.@  However, the document appointing = the=20 Commissioner as Harvestons=3Ds agent for service of process as well = as the=20 default judgment use the name AHarvestons Securities, Inc.@

[4]  We address Harvestons=3Ds second issue first because if this = issue is=20 resolved in Harvestons=3Ds favor, it wil be dispositive of the = entire=20 appeal.

[5]  The dissent states that it would = not be=20 logical for the Secretary=3Ds certificate to carry more weight than = that of=20 the Commissioner.  See post at 4, n.6.  However, = we look=20 to the plain meaning of the respective statutes, and we note the=20 differences in the statutory language.  Our function is not = to=20 question whether there is a sound basis for the differences in the = respective statutes but to apply them as written. See=20 Nat=3Dl Liab. & Fire Ins. Co. v. Allen,=20 15 S.W.3d 525, 527 = (Tex. 2000);=20 Lee v. City of Houston, 807 S.W.2d 290, 293 (Tex. = 1991). =20

[6]  Such a certificate from the = Secretary is=20 known as a AWhitney certificate@ based on the name of the case in which = the Texas=20 Supreme Court first held such a certificate necessary. =  See=20 Whitney v. L&L Realty Corp., 500 S.W.2d 94, 96 (Tex. = 1973);=20 Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273, = n.1 (Tex.=20 App.CHouston [1st Dist.] 2001, no=20 pet.).

[7]  At present, whenever the = Commissioner is=20 served with process as agent for dealers such as Harvestons, the = Texas=20 Securities Act states that the Commissioner must forward the = process=20 received by mail to the dealer=3Ds last known address.  See = Tex. Rev. Civ. Stat. = Ann. =20 art. 581B8 (Vernon Supp. 2006).  Until = September 1,=20 2001­, it appears that the Texas Securities Act did not = expressly=20 require the Secretary to forward any process that had been served = upon the=20 Secretary as agent for dealers such as Harvestons.  See = Texas=20 Securities Act, 55th Leg., R.S., ch. 269, _ 16, 1957 Tex. Gen. Laws 575, 593, = repealed by=20 Act of May 27, 2001, 77th Leg., R.S., ch. 1091, _ 2.24, 2001 Tex. Gen. Laws 2399, 2419 = (current=20 version at Tex. Rev. = Civ. Stat.=20 Ann. art. 581B8 (Vernon Supp. 2006)).  The = absence of such=20 language from the Texas Securities Act when JoAnn Kocerek was = served in=20 September 2000, does not affect our analysis of whether the = Capitol=20 Brick line of cases should be extended to certificates from = the=20 Commissioner.   

[8]  In its motion for rehearing, = Narnia argues=20 that the Commissioner=3Ds certificates are public records under = Texas Rule=20 of Evidence 803(8) as well as proper evidence of the contents of = the=20 Commissioner=3Ds files under Texas Rule of Evidence=20 901(b)(7).  However, even if these arguments are correct, = that does=20 not alter the reality that the Commissioner=3Ds certificates themselves do not address = whether=20 the Commissioner received or was served with a citation or = petition in any=20 case.  Even presuming the two-sentence letter attached to one = of the=20 certificates is identical to a document contained in the=20 Commissioner=3Ds files, this only proves that such a = document=20 exists in the Commissioner=3Ds files.  It is not the equivalent = of the=20 Commissioner certifying that she has been served with process in = this case=20 as Harveston=3Ds agent for service of = process.

[9]  In its motion for rehearing on = appeal,=20 Narnia asserts for the first time that, in the letter, the = Commissioner=20 Aadmitted that she had received process = pursuant to=20 Harvestons[=3D] power of attorney.@  However, the = Commissioner=3Ds letter does not make this = statement.  =20

[10]  In its motion for rehearing in = this court,=20 Narnia argues for the first time that the Commissioner=3Ds two certificates and the documents = attached=20 thereto A[t]aken together . . . qualify as a=20 party=3Ds admission under [Texas] Rule [of = Evidence]=20 801(e)(2)(D).@  Narnia cites no cases holding = that=20 statements by an agent for service of process in a letter are = admissions=20 binding on the principal.  In any event, the assertion that = the=20 Commissioner=3Ds letter contains admissions does not = address the=20 content of the Commissioner=3Ds statements in the letter and whether = this letter=20 should be considered as a substitute for a return of service under = the=20 Capitol Brick line of cases.

[11]  Narnia refers to evidence = attached to its=20 response to Harvestons=3Ds untimely motion for new trial.  = This=20 evidence contradicted an affidavit attached to = Harvestons=3Ds motion.  However, on a restricted = appeal,=20 we cannot consider this evidence because it was not before the = trial court=20 when the trial court rendered the default judgment.  See=20 Alexander, 134 S.W.3d at 848B49.

[12]  On rehearing, Narnia asserts case = is very=20 similar to Interconex, Inc. v. Ugarov, No. 01-05-00524-CV,=20 CS.W.3dC,C, 2006 WL 2506562, at *10B13 (Tex. App.CHouston [1st Dist.] Aug. 31, 2006, no = pet.=20 h.).  We disagree.  The Interconex court held = that the=20 trial court did not abuse its discretion in denying = appellant=3Ds motion to set aside a default judgment = because=20 there was sufficient evidence that appellant=3Ds failure to answer was not the result = of an=20 accident or mistake.  See id.  In = Interconex, the=20 defendant=3Ds agent for service of process testified = there was=20 Ano doubt@ that his signature was on the citation; = yet he=20 also contended that he had not been served with process.  = See=20 id. at *11B12.  He also testified that he = forwarded all=20 process that he received as Interconex=3Ds agent to Interconex=3Ds president and its attorney. See id. = The=20 Interconex case did not involve a restricted appeal or any = issue=20 regarding the validity or sufficiency of the service of process or = the=20 return of citation.  See id. at *10B13.  Nor did the Interconex = case=20 involve the application of the Capitol Brick line of cases. =  See id.

[13]  Because we sustain = Harvestons=3Ds second issue, it is not necessary for = this court=20 to reach Harvestons=3Ds other appellate issues, all of which = are related=20 to defective service of process.=20

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