Affirmed and Memorandum Opinion filed September =
4,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-05-01251-CV
____________
BANK=20
REPOSSESSED CAR CO. d/b/a THRIFTY CAR SALES, =
Appellant
V.
WHO=3DS CALLING,=20
INC.,=20
Appellee
On Appeal from the =
County Civil Court at Law No. 2
Harris County, =
Texas
Trial Court Cause =
No. 828,104
M E M O R=20
A N D U M O P I N I O N
This is a=20
restricted appeal from a no-answer default judgment. In a =
single=20
issue, appellant Bank Repossessed Car Company d/b/a Thrifty Car =
Sales=20
(AThrifty@) contends=20
the trial court did not have jurisdiction to render a default =
judgment due=20
to defects in service of process. We affirm.
Factual=20
and Procedural background
Appellee=20
Who=3Ds Calling,=20
Inc. (AWho=3Ds=20
Calling@) filed=20
suit against Thrifty for damages and attorney=3Ds fees=20
arising from Thrifty=3Ds alleged=20
breach of a written contract. Pursuant to article 2.11(B) of =
the=20
Texas Business Corporation Act, Who=3Ds Calling=20
served Thrifty by way of substitute service upon the Secretary of =
State of=20
the State of Texas. See Tex. Bus. Corp. Act Ann. art. =
2.11(B)=20
(Vernon Supp. 2003). =20
On May 2, 2005, the Secretary of State forwarded the citation and=20
Plaintiff=3Ds First=20
Amended Original Petition, by certified mail, to =
Thrifty=3Ds=20
registered agent at its registered address. The process was =
returned=20
to the office of the Secretary of State on May 16, 2005, bearing =
the=20
notation AAttempted=20
- Not Known.@
On June=20
10, 2005, Who=3Ds Calling=20
filed a motion for default judgment. The trial court granted =
Who=3Ds=20
Calling=3Ds motion=20
on June 13, 2005. Thrifty timely filed a notice of its =
restricted=20
appeal on December 14, 2005.
Discussion
I.=20
Standard of Review
An=20
appellant filing a restricted appeal must demonstrate the =
following=20
elements: (1) the appellant appealed within six months after the =
judgment=20
was rendered; (2) the appellant was a party to the suit; (3) the =
appellant=20
did not participate in the actual trial of the case; and (4) error =
appears=20
on the face of the record. See Tex. R. App. =
P. 30; Quaestor Inv., =
Inc. v.=20
State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). =
Because the=20
parties do not dispute that the first three elements of a =
restricted=20
appeal have been met, we address whether error appears on the face =
of the=20
record.
Thrifty=20
makes two arguments in support of its claim of defective =
service. In=20
its first argument, Thrifty contends service of process was =
defective=20
because the citation and return are not consistent. In its =
second=20
argument, Thrifty contends service was defective because the =
appellate=20
record does not contain a certificate from the Secretary of State=20
affirmatively showing that the Secretary of State forwarded a copy =
of the=20
petition to Thrifty.
II. The=20
Citation and Return are Consistent
In its=20
first argument, Thrifty contends the citation and return are not=20
consistent because the citation purports to serve Manoocher =
Babaahmadi at=20
Thrifty=3Ds=20
registered office, and the return purports to serve Thrifty =
through the=20
Secretary of State. Thrifty does not claim it was improperly =
named=20
in Plaintiff=3Ds First=20
Amended Original Petition, the citation, or the=20
return.
In=20
reviewing a default judgment, there is no presumption in favor of =
valid=20
issuance of service of process. Primate Constr., Inc. v.=20
Silver, 884 S.W.2d 151, 152 (Tex. 1994); N. C. Mut. Life =
Ins. Co.=20
v. Whitworth, 124 S.W.3d 714, 717 (Tex. App.CAustin=20
2003, pet. denied). In order for a default judgment to =
withstand=20
direct attack, strict compliance with the rules of service of =
citation=20
must affirmatively appear on the record. Whitworth, =
124=20
S.W.3d at 718. Failure to affirmatively show strict =
compliance with=20
the Rules of Civil Procedure renders the attempted service of =
process=20
invalid and of no effect. Id. Texas Rule of Civil =
Procedure=20
107 provides that A[t]he=20
return 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.@ =20
Tex. R. Civ. P. 107. The recitations in the return are prima =
facie=20
evidence of the facts recited in the return. Primate =
Constr.,=20
Inc., 884 S.W.2d at 152. =
In this=20
case, contrary to Thrifty=3Ds=20
contention, the citation is directed ATo: Bank=20
Repossessed Car Co., a Corporation Doing Business as Thrifty Car =
Sales=20
Incorporated by the Secretary of State of the State of =
Texas.@ The=20
citation also recites Thrifty=3Ds address=20
in the following manner: ADefs.=20
Adrs: Manoocher Babaahmadi, at the Registered Office, 7723 =
Moonmist,=20
Houston, TX 77036.@ The=20
name of Thrifty=3Ds=20
registered agent and the address of Thrifty=3Ds=20
registered office were included in the citation to aid the =
Secretary of=20
State in attempting service upon Thrifty by certified mail, which =
it=20
did. =20
The language of the citation directs service upon Thrifty =
Aby the=20
Secretary of State of the State of Texas.@ The=20
officer=3Ds return=20
provides that copies of the petition and citation were delivered =
to=20
Thrifty Aby=20
delivering to Roger Williams, Secretary of State of the State of =
Texas, at=20
1019 Brazos Street, Austin, Texas, 78701, by delivering to LORENA =
BERNAL=20
designated agent for service for the Secretary of State . . .=20
.@ =
Who=3Ds=20
Calling=3Ds First=20
Amended Original Petition alleges:
The=20
Defendant corporation, a Texas domestic corporation, a corporation =
for=20
profit and subject to the provisions of the Texas Business =
Corporation=20
Act, incorporated by Articles of Incorporation issued by the =
Secretary of=20
State of the State of Texas, may be served with citation pursuant =
to=20
Section B of said Article 2.11, by reason of the following =
premises. =20
The Defendant corporation has failed to maintain a Registered =
Agent in the=20
State of Texas. The Defendant=3Ds=20
Registered Agent cannot, with reasonable diligence, be found at =
the=20
Registered Office. Therefore, the Secretary of State of the =
State of=20
Texas is an agent for the Defendant corporation and process may be =
served=20
upon the Secretary of State of Texas as agent for the Defendant=20
corporation.
Our review=20
of the papers on file with the trial court at the time it entered =
the=20
default judgment against Thrifty, including the amended petition,=20
citation, and return, clearly reflects that the amended petition =
and=20
citation were served upon Thrifty through the Secretary of State, =
which=20
was identified as Thrifty=3Ds=20
registered agent. See Uvalde Country Club v. Martin Linen =
Supply=20
Co., Inc., 690 S.W.2d 884, 884B85 (Tex.=20
1985) (holding the name of the agent for service of process =
alleged in=20
plaintiff=3Ds petition=20
must match the name of the agent upon who process was served as =
reflected=20
in the return). We overrule Thrifty=3Ds argument=20
that error appears on the face of the record because the citation =
and=20
return are not consistent.
III. A=20
Certificate From the Secretary of State is Part of the Appellate =
Record=20
In its=20
second argument, Thrifty claims service was defective because the =
record=20
does not contain a certificate from the Secretary of State showing =
that=20
the Secretary of State forwarded a copy of the process to =
Thrifty. =20
See Whitney v. L & L =
Realty=20
Corp., 500=20
S.W.2d 94, 96 (Tex. 1973) =
(holding a=20
showing in the record that the Secretary of State forwarded a copy =
of the=20
process is essential to establish the court=3Ds=20
jurisdiction). The supplemental clerk=3Ds record=20
filed in this court on March 16, 2007 contains a certificate =
issued by the=20
Secretary of State on May 17, 2005. The certificate provides =
that a=20
copy of the citation and Plaintiff=3Ds First=20
Amended Original Petition were received by the Secretary of State =
and=20
forwarded, by certified mail, to Bank Repossessed Car Co., =
Manoocher=20
Babaahmadi, 7723 Moonmist, Houston, TX 77036. The =
certificate=20
further provides, AThe=20
PROCESS was returned to this office on May 16, 2005, bearing the =
notation=20
Attempted - Not Known.@ =
Because=20
the record contains a certificate from the Secretary of State=20
affirmatively showing that the Secretary of State forwarded a copy =
of the=20
process to Thrifty, we conclude error is not apparent on the face =
of the=20
record and overrule appellant=3Ds second=20
argument.
Appellant=3Ds first=20
issue is overruled.
Conclusion
Having=20
considered and overruled appellant=3Ds single=20
issue on appeal, we affirm the judgment of the trial =
court.
/s/ =20
John S. Anderson
Justice
Judgment=20
rendered and Memorandum Opinion filed September 4, =
2007.
Panel=20
consists of Justices Anderson, Fowler, and =
Seymore.
Article 2.11(B) =
provides:
Whenever a corporation shall fail to =
appoint or=20
maintain a registered agent in this State, or whenever its =
registered=20
agent cannot with reasonable diligence be found at the registered =
office,=20
then the Secretary of State shall be an agent of such corporation =
upon=20
whom any such process, notice, or demand may be served. . . . =
Tex. Bus. Corp. Act =
Ann. art.=20
2.11(B). In its First =
Amended=20
Original Petition, Who=3Ds Calling alleges Thrifty=3Ds registered agent cannot, with =
reasonable=20
diligence, be found at the registered office. Thrifty makes =
no=20
arguments on appeal regarding the use of reasonable diligence by=20
Who=3Ds Calling.
Such a certificate from the =
Secretary of=20
State is known as a AWhitney certificate@ based on the style of the case in which =
the Texas=20
Supreme Court first held such a certificate was necessary. =
See=20
Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. =
1973);=20
Harvestons Securities, Inc. v. Narnia Inv., Ltd., 218 =
S.W.3d 126,=20
131 n.6 (Tex. App.CHouston [14th Dist.] 2007, pet. filed).=20
Thrifty=3Ds registered agent =
is=20
Manoocher Babaahmadi. Thrifty=3Ds registered office =
is=20
located at 7723 Moonmist, Houston, TX 77036.
A certificate =
issued by the=20
Secretary of State on May 17, 2005 provides that a copy of the =
citation=20
and Plaintiff=3Ds First Amended =
Original=20
petition was received by the Secretary of State and forwarded, by=20
certified mail, to ABank Repossessed =
Car Co.,=20
Manoocher Babaahmadi, 7723 Moonmist, Houston, TX =
77036.@
In the context of a no-answer =
default=20
judgment, these factual statements in the amended petition are =
deemed=20
admitted. Holt Atherton Indus. v. Heine 835 S.W.2d 80, 83 =
(Tex.=20
=
1992). |