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Rooftop Group USA, Inc. v. Shopper Events LLC

Court of Appeals of Texas, Fourteenth District

May 16, 2017


         On Appeal from the County Civil Court at Law No. 3 Harris County, Texas, Trial Court Cause No. 1061040

          Panel consists of Justices Boyce, Jamison, and Brown.



         In this restricted appeal, appellant Rooftop Group USA, Inc. challenges a default judgment rendered against it. In Rooftop's first four issues, it contends that the record does not show strict compliance with the rules regarding issuance, service, and return of the citation, thereby rendering service insufficient to confer personal jurisdiction over Rooftop. In its two remaining issues, Rooftop contends that the trial court erred in awarding liquidated damages and attorneys' fees. We affirm.

         I. Background

         Appellee Shopper Events LLC filed a suit on a sworn account, alleging that Rooftop failed to pay $96, 079.99 for services Shopper Events provided to Rooftop in 2012 and 2013. Shopper Events failed in its two efforts to effect service of process on Rooftop's registered agent Darren Matloff. Subsequently, in its first amended petition ("the petition"), Shopper Events alleged that Rooftop's registered agent could not be found at the registered office with reasonable diligence. In support, Shopper Events attached an affidavit to the petition detailing the attempts to serve Matloff at Rooftop's registered office. The petition also alleged that, under article 5.251 of the Texas Business Organizations Code, the Secretary of State was Rooftop's agent for service of process.

         The Secretary issued a certificate of service, which certified that the Secretary received the citation and the petition on June 22, 2015, and forwarded a copy of the service documents to Rooftop's registered address by certified mail, return receipt requested, on June 25, 2015. The Secretary received the signed return receipt on June 29, 2015. Rooftop did not appear or answer.

         Shopper Events moved for a default judgment. Although there was a default judgment hearing, the record does not indicate whether the trial court heard evidence as to damages because there is no court reporter's record. The trial court granted a final default judgment against Rooftop and awarded Shopper Events $96, 079.99 in damages, $32, 000 in attorneys' fees, 6% pre-judgment interest, and 5% post-judgment interest. Judgment was rendered on August 19, 2015, and Rooftop filed a notice of restricted appeal on December 4, 2015.

         II. Standard of Review

         A direct attack on a judgment by restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment made the subject of the complaint; (4) who did not file a post-judgment motion, request for findings of fact and conclusions of law, or other notice of appeal; and (5) the error that forms the basis of the complaint must be apparent on the face of the record. Tex.R.App.P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 670 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Because the first four requirements for filing a restricted appeal are not disputed, we address whether error appears on the face of the record. In a restricted appeal, the face of the record consists of all papers on file before the judgment as well as the reporter's record. Conseco, 78 S.W.3d at 670.

         III. Analysis

         A. The face of the record reflects no error regarding the issuance, service, and return of citation.

         In restricted appeals, "[t]here are no presumptions in favor of valid issuance, service, and return of citation." Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). If the record in a restricted appeal fails to affirmatively show strict compliance with the rules of civil procedure governing service of citation, the attempted service of process is invalid and of no effect. See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985) (holding that record did not reflect strict compliance with procedural rules relating to issuance, service, and return of citation, where petition alleged that registered agent was "Henry Bunting, Jr." whereas sheriff's return on citation showed delivery to "Henry Bunting"). When the service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990).

         When, as here, the defendant's registered agent cannot be found at its registered office with reasonable diligence, plaintiffs are permitted to seek substituted service on the Secretary. See Tex. Bus. Orgs. Code Ann. § 5.251(1)(B) (West 2012) (formerly Tex. Bus. Corp. Act art. 2.11). Service of process on the Secretary is accomplished by delivering duplicate copies of the process and any required fee. See id. § 5.252 (West 2012). Thereafter, the Secretary shall forward the process to the entity's most recent address on file with the Secretary by certified mail, return-receipt requested. See id. § 5.253 (West 2012). The Secretary may issue a certificate of service.[1] "Absent fraud or mistake, the Secretary of State's certificate is conclusive evidence that the Secretary of State, as agent of [the defendant], received service of process for [the defendant] and forwarded the service as required by the statute." Capitol Brick, Inc. v. Fleming Mfg. Co., Inc., 722 S.W.2d 399, 401 (Tex. 1986) (Secretary's certificate was conclusive evidence that Secretary received service of process for corporation and forwarded service as required under former long-arm statute, article 2031b of Texas Civil Statutes); ...

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