Court of Appeals of Texas, First District, Houston
On Appeal from the 122nd District Court, Galveston County, Texas. Trial Court Case No. 11CV1696.
Panel consists of Justices Keyes, Higley, and Massengale.
Michael Massengale, Judge.
Paramount Credit, Inc., which does business as 5 Star Autoplex, appeals a default judgment entered in favor of Kimberly Montgomery. Among other things, Paramount argues that due to improper service, the trial court lacked personal jurisdiction over Paramount, and the judgment is therefore void. We sustain that issue, and we reverse and remand to the trial court.
In October 2010, Paramount sold a car to Montgomery, in exchange for which she traded in another vehicle, made a down payment, and entered into a financing agreement for the balance, with Paramount as the lender. Montgomery alleges that Paramount represented that the purchased vehicle had a factory warranty, but she later learned that the vehicle had a " branded" title, meaning that it not only lacked a warranty, but it had in fact been totaled in an accident. In October 2011, Montgomery sued Paramount for breach of express and implied warranties, breach of contract, negligent misrepresentation, and violation of the Texas Deceptive Trade Practices Act.
Montgomery's Original Petition alleged that " Paramount Credit Inc. d/b/a 5 Star Auto Plex [sic] is a corporation and may be served with citation by serving its registered agent for service at 2724 Crossview #202, Houston, Texas 77063." The day after the suit was filed, a citation was issued to " PARAMOUNT CREDIT INC. D/B/A 5 STAR AUTO PLEX, UPON WHOM PROCESS OF SERVICE [sic] MAY BE HAD BY SERVING ITS REGISTERED AGENT, 2724 CROSSVIEW #202, HOUSTON, TX 77063." This citation bears the signature of a deputy district clerk, but it does not bear a seal of the court. A deputy constable attempted to serve the citation but was unsuccessful. The deputy's signed return states,
Came to hand on the 10TH day of NOVEMBER, 2011 at 7:10 o'clock AM and executed in County, Texas, by delivering to each of the within named defendants, in person true copy of this Citation. [sic] together with the accompany copy of 11CV1696 he [sic] following times and place, to wit:
. . . .
not executed as to the Defendant PARAMOUNT CREDIT INC DBA 5 STAR AUTO PLEX, 2724 CROSSVIEW #202, HOUSTON, TX. 77063
diligence used in finding said Defendant. [sic] attempts being 11/16/11 10:45 AM NO ANSWER CARD LEFT WITH DEPUTY'S CELL #; 3PM PHONE CALLL [sic] FROM RESIDENT ADVISES
RENTING SINCE APRIL 2011-BAD ...