Appeal from the County Civil Court at Law No. 3 Harris
County, Texas, Trial Court Cause No. 1061040
consists of Justices Boyce, Jamison, and Brown.
W. BROWN JUSTICE.
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.
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.
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.
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.
Standard of Review
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.
The face of the record reflects no error regarding the
issuance, service, and return of citation.
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).
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. "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);