Texas Judiciary Online - HTML Opinion

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Opinion issued May 31,=20 2007

In = The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. 01-06-00068-CV

____________

MARROT=20 COMMUNICATIONS, INC., Appellant

TOWN & COUNTRY PARTNERSHIP D/B/A TOWN & = COUNTRY=20 VILLAGE, Appellee

On = Appeal=20 from the 61st District Court

Harris County, Texas

Trial Court=20 Cause No. 2005-54598

O = P I N I O=20 N

Appellant,=20 Marrot Communications, Inc. ("Marrot"), challenges the trial = court's=20 no-answer default judgment rendered in favor of appellee, Town = &=20 Country Partnership doing business as Town & Country Village = ("Town=20 & Country"), in Town & Country's suit against Marrot for = breach of=20 contract, fraud, conversion, and quantum meruit/unjust enrichment. = In=20 three issues, Marrot contends that the trial court erred in = denying=20 Marrot's motion for new trial "based on defective service" and,=20 alternatively, "under the Craddock test,"^{=20
(1)} and in awarding Town & Country "tort/punitive = damages."=20

We reverse=20 and remand.

Factual and Procedural = Background

In its=20 original petition, dated August 26, 2005, Town & Country = alleged that=20 on or about January 26, 2005, it entered into a "Media Services = Agreement"=20 with Marrot. Under the contract, Marrot was required, among other = things,=20 to negotiate on behalf of Town & Country with local television = stations for advertising air time, coordinate and plan the media = to be=20 broadcasted, manage and administer the advertising account, and = pay the=20 stations for air time allocated to and used by Town & Country. = In=20 particular, Town & Country entrusted Marrot with $200,000, = $125,000 of=20 which was to be paid to the stations for advertising between March = 21,=20 2005, and May 29, 2005 (the "Spring Flight"). The remaining = $75,000 was to=20 be paid to the stations for advertising between November 21, 2005 = and=20 December 24, 2005 (the "Christmas Holiday Flight").

Town &=20 Country further alleged that despite the Spring Flight being run = by the=20 media, Marrot never paid the stations the $125,000 fee for the = advertising=20 time. Instead, Marrot kept the money for its own use and benefit, = contrary=20 to its express agreement to pay for this advertising time from the = $200,000 provided by Town & Country for this special purpose. = As a=20 result of not receiving payment for the Spring Flight, the = stations=20 refused to run the Christmas Holiday Flight.

In its=20 first amended original petition, dated September 2, 2005, Town = &=20 Country alleged that Marrot "failed to properly maintain a = registered=20 agent for service" and requested substituted service, pursuant to = the=20 Texas Business Corporations Act,^{=20
(2)} through the Secretary of State. After = filing its=20 amended petition, Town & Country then served Marrot by = substituted=20 service on the Secretary of State, as indicated by a certificate = from the=20 Secretary of State, filed by Town & Country with the trial = court on=20 October 20, 2005. Marrot failed to answer, and Town & Country = filed=20 its motion for default judgment on November 3, 2005, alleging that = "service was effectuated on [Marrot] through the Texas Secretary = of State=20 as of September 26, 2005, making [Marrot's] answer deadline = October 17,=20 2005," and that proof of service had been on file with the trial = court for=20 more than ten days.^{=20
(3)}

The trial=20 court signed its default judgment on November 15, 2005, reciting = that it=20 found and determined that Marrot had "been, duly, regularly and = lawfully=20 served with Citation and process in the form and manner and for = the length=20 of time required by law, and the return of Citation has been on = file with=20 the [trial court] for more than ten (10) days (exclusive of the = date of=20 filing and the date of judgment), but [Marrot] has failed to = appear to=20 make answer and wholly made default . . . ."

Marrot, on=20 December 9, 2005, filed its = motion=20 for new trial,^{=20
(4)} asserting that service was defective and, = alternatively,=20 that a new trial should be granted under Craddock. Marrot = alleged=20 that "[t]he record reflects that service was effectuated on the = Secretary=20 of State and not on [Marrot's] duly registered agent" and "[t]here = is no=20 constable's (or private process server's) return in the record = reflecting=20 attempted service on [Marrot] through its registered agent." =

In its=20 response, Town & Country asserted that service was attempted = on=20 Marrot's registered agent. Town & Country attached to its = response the=20 affidavit of the process server, Joel L. Hershey.^{=20
(5)} In his affidavit, Hershey testified that he = attempted to=20 serve a copy of the petition and citation on Mark Rothenberg, = Marrot's=20 agent registered with the Secretary of State, at 7026 Old Katy = Road, Suite=20 210, Houston, Texas 77024, on August 30, 2005, at 2:10 p.m., but = the=20 registered office was vacant. Town = & Country=20 argued that because Marrot failed to maintain a registered agent = at the=20 registered address, Town & Country "effectuated service on = [Marrot]=20 through the Secretary of State . . . as evidenced by the = [certificate from=20 the Secretary of State]."^{=20
(6)}

The trial=20 court denied Marrot's motion for new trial. Defective=20 Service

In its=20 first issue, Marrot argues that the trial court erred in denying = its=20 motion for new trial on the ground of defective service because = the=20 record, prior to the entry of the default judgment, contains no = evidence=20 that Town & Country attempted to serve Marrot's registered = agent at=20 the registered office or used reasonable diligence in attempting = to serve=20 Marrot's registered agent prior to serving the Secretary of State. = Marrot=20 concludes that Town & Country's service of process was = defective as a=20 matter of law and deprived it of both substantive and procedural = due=20 process.

At any time=20 after a defendant is required to answer, a plaintiff may take = judgment by=20 default against the defendant if the defendant has not previously = filed an=20 answer and the citation with proof of service has been on file = with the=20 clerk of the court for ten days. Tex. R. Civ. P. 107, 239. Before = a trial=20 court may properly render a default judgment, the record must = reflect that=20 the trial court has jurisdiction of the subject matter and the = parties and=20 that the case is ripe for judgment. Finlay v. Jones, 435 = S.W.2d=20 136, 138 (Tex. 1968). A trial court has "no more solemn judicial=20 obligation than that of seeing that no litigant is unjustly = saddled with a=20 judgment in the absence of notice and a hearing." Id. at = 138-39.=20 When determining whether a case is ripe for judgment, the trial = court has=20 a "judicial duty to ascertain and determine" that the defendant = has been=20 "duly served with citation" and has no answer on file. = Id. at=20 139. Unless the record affirmatively shows, "at the time the = default=20 judgment is entered," either an appearance by the defendant, = proper=20 service of citation on the defendant, or a written memorandum of = waiver,=20 the trial court does not have in personam jurisdiction to enter = the=20 default judgment against the defendant. Am. Universal Ins. Co. = v. D.B.=20 & B., Inc., 725 S.W.2d 764, 766 (Tex. App.--Corpus = Christi 1987,=20 writ ref'd n.r.e.); see also Cates v. Pon, 663 S.W.2d 99, = 101-02=20 (Tex. App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.). The = Texas=20 Supreme Court has explained that even "[a]ctual notice to a = defendant,"=20 after defective substituted service, is "not sufficient to convey = upon the=20 court jurisdiction to render default judgment against him." = Wilson v.=20 Dunn, 800 S.W.2d 833, 836 (Tex. 1990). As noted by one court = of=20 appeals, "[v]irtually any deviation from the statutory requisites = for=20 service of process will destroy a default judgment." Carmona = v. Bunzl=20 Distribution, 76 S.W.3d 566, 568-69 (Tex. App.--Corpus = Christi 2002,=20 no pet.).

The Texas=20 Business Corporations Act places upon corporations the duty to = maintain a=20 registered agent and office and to notify the Secretary of State = of any=20 change in either. See Tex. Bus. Corp. Act Ann. art. 2.11, = =A7 B=20 (Vernon Supp. 2006); Ingram Indus., Inc. v. U.S. Bolt Mfg., = Inc.,=20 121 S.W.3d 31, 34 (Tex. App.--Houston [1st Dist.] 2003, no pet.). = Article=20 2.11, section B, provides in pertinent part,

Whenever a=20 corporation shall fail to appoint or maintain a registered agent = in this=20 State, or whenever its registered agent cannot with reasonable = diligence be found at the registered office, then the = Secretary of=20 State shall be an agent of such corporation upon whom any such = process,=20 notice, or demand may be served.

Tex. Bus.=20 Corp. Act Ann. art. 2.11, =A7 B (emphasis added). Only after the = registered=20 agent of a corporation cannot be found with reasonable diligence = at the=20 registered office can the Secretary of State act as agent of the=20 corporation for service of process. Ingram Indus., Inc., = 121=20 S.W.3d at 34. "Thus, a default judgment obtained after an = attempted=20 substituted service [on the Secretary of State] will not stand = absent a=20 showing by the plaintiff that, before it resorted to substituted = service=20 [on the Secretary of State], it first used reasonable diligence in = seeking=20 service on the registered agent of the corporation." Id. = This=20 Court has noted that one attempt to serve process on the = registered agent,=20 when subsequent attempts would be futile, may be sufficient to = establish=20 "reasonable diligence." Id.

Marrot=20 asserts that, at the time the trial court entered the default = judgment=20 against it, the record was completely devoid of any evidence of = attempted=20 service on its registered agent, let alone evidence of diligence = in=20 attempting such service. Marrot further asserts that Town & = Country=20 recognized this deficiency and attempted, post-judgment, to = correct the=20 defective service by filing the process server's affidavit in = response to=20 Marrot's motion for new trial. Marrot contends that the affidavit = cannot=20 be considered because we are to examine the record as it existed = at the=20 time the judgment was entered.

In fact,=20 when Town & Country filed its first amended original petition, = requesting substituted service on the Secretary of State under = article=20 2.11, section B, although it alleged that Marrot "failed to = properly=20 maintain a registered agent for service" at the registered = address, there=20 was nothing in the record to indicate to the trial court that Town = &=20 Country had demonstrated reasonable diligence in seeking service = on Mark=20 Rothenberg, Marrot's registered agent. Again, prior to seeking = substituted=20 service on the Secretary of State, a plaintiff must first show the = trial=20 court that it used reasonable diligence in seeking service on the=20 registered agent of the corporation. Id. Here, at the = time Town=20 & Country sought substituted service, and when the trial court = subsequently entered the default judgment, the record did not = contain=20 either an unexecuted return of citation, a process server's = affidavit, or=20 a motion for substituted service.

Town &=20 Country asserts that "[a]s evidenced by a Certificate of the = Secretary of=20 State, filed with the trial court, the amended petition and = citation were=20 duly served on the Secretary of State on September 19, 2005, with = a copy=20 forwarded to Marrot's Registered Agent by certified mail, return = receipt=20 requested, at the last known Registered Address on September 26, = 2005."=20 Town & Country contends that, "[a]s evidenced by the = Certificate of=20 the Secretary of State, the substituted service was properly = exercised by=20 Town & Country upon Marrot through its agent, the Secretary of = State."

The Texas=20 Supreme Court has stated that absent fraud or mistake, a Secretary = of=20 State's certificate constitutes conclusive evidence that the = Secretary of=20 State, as agent of the defendant, received service of process for = the=20 defendant and forwarded the service as required by the statute. = Campus=20 Investments, Inc. v. Cullever, 144 S.W.3d 464, 465 = (Tex.=20 2004); Capitol Brick, Inc. v. Fleming Mfg. Co., Inc., 722 = S.W.2d=20 399, 401 (Tex. 1986). Thus, the certificate may conclusively = establish=20 that process was served. See Cullever, 144 = S.W.3d at=20 466. However, the supreme court in Cullever did not state = that=20 the certificate establishes that a defendant's registered agent = could not,=20 "with reasonable diligence be found at the registered office" as = required=20 by article 2.11, section B. As noted above, a plaintiff must = establish,=20 before resorting to substituted service on the Secretary of State, = that it=20 used reasonable diligence in seeking service on the registered = agent of a=20 corporation. Ingram Indus., Inc., 121 S.W.3d at 34. A = default=20 judgment is simply improper against a defendant who has not been = served in=20 strict compliance with the law. Wilson, 800 S.W.2d at=20 837.

Town &=20 Country asserts that the affidavit of Hershey, its process server, = establishes that it used reasonable diligence in seeking service = on=20 Rothenberg, Marrot's registered agent. Hershey in fact testified = that he=20 attempted to serve Rothenberg, but he found the registered office = vacant.=20 However, this evidence was not in the record and before the trial = court=20 when it entered the default judgment against Marrot.

Nevertheless, Town=20 & Country argues that we must consider Hershey's affidavit = because "on=20 appeal, the reviewing court scrutinizes the entire record = to=20 determine whether service was valid," citing Ingram = Industries,=20 Inc., 121 S.W.3d at 34 ("The record as a whole, not only the=20 unexecuted citation, may be considered to determine whether the=20 reasonable-diligence requirement is satisfied") and G.F.S. = Ventures,=20 Inc. v. Harris, 934 S.W.2d 813, 816 (Tex. App.--Houston [1st = Dist.]=20 1996, no writ) (same). In response, Marrot argues that we cannot = consider=20 Hershey's affidavit because it was not before the trial court at = the time=20 of the entry of the default judgment, citing Tankard-Smith, = Inc.=20 General Contractors v. Thursby, 663 S.W.2d 473, 476 (Tex.=20 App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.) (in assessing = validity=20 of default judgment, appellate court may only consider record = before trial=20 court as it existed prior to entering default judgment). See = also Hot=20 Shot Messenger Serv., Inc. v. State of Texas, 818 S.W.2d 905 = (Tex.=20 App.--Austin 1991, no writ); Thomas Petroleum Prods., Inc. v. = Rulon=20 Elec. Co., Inc., 609 S.W.2d 890 (Tex. App.--Houston [14th = Dist.]=20 1980, no writ).

However, we=20 again note that in order for a default judgment to be properly = rendered,=20 the record must affirmatively show, at the time the default = judgment=20 is entered, either an appearance by the defendant, proper = service of=20 citation on the defendant, or a written memorandum of waiver. = See=20 Carmona, 76 S.W.3d at 568. Otherwise, the trial court does = not have=20 in personam jurisdiction to enter a default judgment against the=20 defendant. See id. Because Hershey's affidavit was not = part of=20 the record until after the trial court signed the default = judgment, we=20 cannot consider the affidavit as proper evidence of reasonable = diligence=20 prior to seeking substituted service on the Secretary of = State.

As noted by=20 Town & Country, the cases relied upon by Marrot involved = restricted=20 appeals. See Thursby, 663 S.W.2d at 474; Hot Shot = Messenger=20 Serv., Inc., 818 S.W.2d at 906; Thomas Petroleum Prods.,=20 Inc., 609 S.W.2d at 891. Because a restricted appeal, = typically=20 dealing with issues of valid issuance, service, and return of = citation, is=20 filed directly in an appellate court, "review is limited to errors = apparent on the face of the record." See Fidelity & Guar. = Ins. Co.=20 v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573 (Tex.=20 2006).

Here,=20 Marrot is appealing after it filed a motion for new trial, which = was=20 denied. When a default judgment is attacked by a motion for new = trial or=20 bill of review in the trial court, the record is not so limited = and the=20 "parties may introduce affidavits, depositions, testimony, and = exhibits to=20 explain what happened." Id. at 573-74. This allows the = parties,=20 in the trial court, to address the elements of Craddock = or a bill=20 of review. See Craddock v. Sunshine Bus Lines, Inc., 133 = S.W.2d=20 124, 126 (Tex. 1939) (requiring new trial if defendant shows (1) = default=20 was neither intentional nor result of conscious indifference, (2)=20 meritorious defense, and (3) new trial would cause neither delay = nor undue=20 prejudice); Alexander v. Hagedorn, 226 S.W.2d 996, 998 = (Tex.=20 1950) (requiring that default judgment be set aside in bill of = review=20 proceeding if defendant shows (1) meritorious defense to = plaintiff's cause=20 of action, (2) which he was prevented from making by extrinsic = fraud,=20 accident, or wrongful conduct of opposing party, and (3) that = excuse=20 offered is unmixed with any fault or negligence of his own). = Obviously, a=20 trial court would need to hear and consider evidence regarding = these=20 elements before granting or denying a motion for new trial or = deciding=20 whether or not to set aside a default judgment in a bill of=20 review.

However,=20 the critical issue before us is whether service upon the defendant = was=20 defective in the first place, not "Why did the defendant not = appear?"=20 See Fidelity & Guar. Ins. Co., 186 S.W.3d at 574. In = other=20 words, did the trial court err in entering a default judgment = against=20 Marrot on the record before it at the time that it entered the = default=20 judgment? A trial court's jurisdiction is dependent upon citation = issued=20 and served in a manner provided for by law. Wilson, 800 = S.W.2d at=20 836. As noted above, unless the record affirmatively shows "at the = time=20 the default judgment is entered" an appearance by the defendant, = proper=20 service of citation, or a written memorandum of waiver, a trial = court does=20 not have in personam jurisdiction to enter the default judgment. = Am.=20 Universal Ins. Co., 725 S.W.2d at 766. Town & Country did = not=20 present Hershey's affidavit, in which he testified about his = service=20 attempt on Rothenberg, to the trial court until after the trial = court had=20 entered the default judgment against Marrot. As noted by Marrot, = the=20 record, prior to the entry of the default judgment, contains no = evidence=20 that Town & Country could not "with reasonable diligence" find = Rothenberg at the registered office.

Accordingly, we hold=20 that Town & Country's substituted service on the Secretary of = State=20 was defective and the default judgment in this case cannot stand.=20 See Wilson, 800 S.W.2d at 837; Ingram=20 Indus., Inc., 121 S.W.3d at 34. We further hold that the = trial=20 court erred in granting the default judgment, not setting it = aside, and in=20 denying Marrot's motion for new trial. Having so held, we need not = consider Marrot's second and third issues.

We sustain=20 Marrot's first issue.

Conclusion

We reverse=20 the judgment of the trial court and remand the cause for = proceedings=20 consistent with this opinion.

Terry=20 Jennings

Justice

Panel=20 consists of Justices Nuchia, Jennings, and Higley.

1. See = Craddock v.=20 Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).=20

2. See Tex.=20 Bus. Corp. Act Ann. art. 2.11, =A7 B (Vernon Supp. 2006).=20

3. See Tex. R.=20 Civ. P. 107.=20

4. See Tex. R.=20 Civ. P. 329b.=20

5. Hershey's affidavit appears in the record = only as=20 exhibit "B" to Town & Country's response to Marrot's motion = for new=20 trial.=20

6. The = certificate from=20 the Secretary of State is attached as exhibit "C" to Town & = Country's=20 response to Marrot's motion for new trial.=20

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FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_005B_01C7A3C9.19D964E0--