AUTHENTIC BRANDS GROUP LLC, SUCCESSOR IN INTEREST TO JUICY COUTURE, INC. AND KATE SPADE & COMPANY, SUCCESSOR IN INTEREST TO FIFTH & PACIFIC, Appellants
MONTRAY PORTER, Appellee
Appeal from the 61st District Court Harris County, Texas
Trial Court Cause No. 2014-72290
consists of Justices Christopher, Jamison, and Donovan.
Hill Jamison Justice.
Authentic Brands Group LLC and Kate Spade & Company, file
this restricted appeal from a default judgment favoring
Montray Porter in Porter's personal injury lawsuit. The
trial court awarded Porter $270, 000. In two issues,
appellants contend that (1) the trial court lacked personal
jurisdiction over them because the record does not
demonstrate proper service of citation, and (2) the evidence
is legally and factually insufficient to support the award of
medical expenses. Because the record does not demonstrate
that the trial court obtained personal jurisdiction over the
appellants, we reverse and remand for further proceedings.
prevail in a restricted appeal, appellants are required to
establish that (1) they filed notice of the restricted appeal
within six months after the judgment was signed, (2) they
were parties to the underlying lawsuit, (3) they did not
participate in the hearing that resulted in the challenged
judgment and did not timely file any postjudgment motions or
requests for findings of fact and conclusions of law, and (4)
error is apparent on the face of the record. Alexander v.
Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004);
Air Voice Wireless, LLC v. M&E Endeavours LLC,
No. 14-15-00548-CV, 2016 WL 5342707, at *3 (Tex. App.-Houston
[14th Dist.] Sept. 22, 2016, no pet.) (mem. op.). For
purposes of a restricted appeal, the record consists of all
papers on file in the appeal. Air Voice Wireless,
2016 WL 5342707, at *3.
undisputed that appellants were named parties in the
underlying lawsuit and filed their notice of restricted
appeal within six months of the judgment being signed. The
record further reflects appellants did not participate in the
hearing that resulted in the default judgment and did not
timely file any postjudgment motions or requests for findings
of fact and conclusions of law. Accordingly, the only
question remaining is whether error was apparent on the face
of the record. See id.
stated, appellants assert in their first issue that the
record does not establish that they were properly served. The
Texas Supreme Court has "required that strict compliance
with the rules for service of citation affirmatively appear
on the record in order for a default judgment to withstand
direct attack." Primate Constr., Inc. v.
Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam);
see also Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.
1990) ("For well over a century the rule has been firmly
established in this state that a default judgment cannot
withstand direct attack by a defendant who complains that he
was not served in strict compliance with applicable
requirements."). When a default judgment is challenged
by restricted appeal, there are no presumptions in favor of
valid issuance, service, or return of citation. See
Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W.3d 848,
848 (Tex. 2007) (per curiam); Air Voice Wireless,
2016 WL 5342707, at *3. If the record does not show strict
compliance with the rules governing issuance, service, and
return of citation, the attempted service of process is
invalid and the trial court has no personal jurisdiction over
a defendant. Air Voice Wireless, 2016 WL 5342707, at
*3. Moreover, virtually any deviation from these rules is
sufficient to set aside the default judgment in a restricted
asserts that she properly served appellants twice, once on
their registered agents by certified mail and once through
substitute service on the Texas Secretary of State as
approved by the trial court. The record does not support
begin with Porter's contention that she served
appellants' registered agents. Foreign corporations, such
as appellants, may register with the Texas Secretary of
State, and are sometimes required to register, in order to do
business in the State of Texas. See Tex. Tex. Bus.
Orgs. Code §§ 9.001-.004. To register, a
corporation must provide the name and address of a registered
agent for service of process. Id. § 9.004. A
recital in a petition that a named person or entity is the
registered agent for service on a defendant is prima facie
evidence of that fact and may be sufficient to support a
default judgment unless the defaulted defendant proves
otherwise. Conseco Fin. Servicing Corp. v. Klein
I.S.D., 78 S.W.3d 666, 671 (Tex. App.-Houston [14th
Dist.] 2002, no pet.). A return of service showing delivery
of process to a registered agent is also prima facie evidence
that the person served is in fact an authorized agent.
Izen v. Sjostrom, No. 14-06-00142-CV, 2007 WL
968841, at *3 (Tex. App.-Houston [14th Dist.] Apr. 3, 2007,
no pet.) (mem. op.) (citing Pleasant Homes, Inc. v.
Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989)).
Porter contends that she identified appellants'
registered agents in her petition and served them by
certified mail; however, several items in the record refute
the latter contention. First, when a citation is served by
return or certified mail, the return of service by the
officer executing the citation must contain the return
receipt with the addressee's visible signature, but here,
the return receipts for delivery to appellants' agents
contained no signatures. See Tex. R. Civ. P. 107(c);
MYRMAC Corp. v. P.H., No. 02-16-00319-CV, 2017 WL
1173841, at *2 (Tex. App.-Fort Worth Mar. 30, 2017, no pet.)
(mem. op.). Second, the record reflects that the mailing to
Kate Spade's registered agent was actually returned as
"Undeliverable as Addressed." And lastly, Porter
expressly represented to the trial court in her motions for
substituted service that the original attempts to serve
appellants were unsuccessful.
record reflects that Porter did, in fact, attempt substitute
service on appellants through the Texas Secretary of State,
as approved by the trial court pursuant to Texas Rule of
Civil Procedure 106(b)(2) and Texas Business Organizations
Code sections 5.251 to 5.253. While the record reflects that
service was successfully had on the secretary, the record
does not, however, reflect that the secretary forwarded
citation to appellants.
supreme court has consistently held that when a long-arm
jurisdictional statute requires the secretary to forward
citation to the defendant, the record must affirmatively
demonstrate that the citation was in fact forwarded in order
to support a default judgment. See, e.g., Wachovia,
215 S.W.3d. at 849-50; Whitney v. L & L Realty
Corp., 500 S.W.2d 94, 96 (Tex. 1973). This court, among
others, has concluded that this requirement pertains to the
long-arm statute at issue in this case, Business
Organizations Code sections 5.251 to 5.253. See Rooftop
Grp. USA, Inc. v. Shopper Events LLC, No.
14-15-01040-CV, 2017 WL 2125648, at *2 (Tex. App.-Houston
[14th Dist.] May 16, 2017) (mem. op.); MC Phase II Owner,
LLC v. TI Shopping Ctr., LLC, 477 S.W.3d 489, 492-94
(Tex. App.-Amarillo 2015, no pet.); El Paisano Nw.
Highway, Inc. v. Arzate, No. 05-12-01457-CV, 2014 WL
1477701, at *3 (Tex. App.-Dallas Apr. 14, 2014, no pet.)
(mem. op.); BLS Dev., LLC v. Lopez, 359 S.W.3d 824,
828 (Tex. App.-Eastland 2012, no pet.); see also
Wachovia, 215 S.W.3d. at 849 & n.1 (including
sections 5.251 to 5.253 in list of statutes requiring
secretary to forward service to the defendant). Proof of
forwarding is typically accomplished by including a
certificate from the secretary of state in the record, which
generally conclusively establishes that citation was
forwarded to the ...