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In re FDB Pools, Inc.

Court of Appeals of Texas, Seventh District, Amarillo

January 2, 2018

IN RE FDB POOLS, INC. D/B/A AMARILLO CUSTOM POOLS

          Original Proceeding Arising Out of Proceedings before the 223rd District Court In and For Gray County, Texas Trial Court No. 38, 794; Honorable Phil N. Vanderpool, Presiding

          Before QUINN, C.J., and CAMPBELL, and PIRTLE, JJ.

          OPINION

          Per Curiam

         For the want of a nail the shoe was lost, For the want of a shoe the horse was lost, For the want of a horse the rider was lost, For the want of a rider the battle was lost, For the want of a battle the kingdom was lost, And . . . all for the want of a nail.

         ― Benjamin Franklin

         Relator contends that for want of an "n" the due process principle of reasonable diligence in effecting service of process should be lost. We disagree.

          Relator, FDB Pools, Inc., d/b/a Amarillo Custom Pools, brings this original mandamus proceeding seeking to compel the Honorable Phil N. Vanderpool to vacate his order granting a new trial in Cause No. 38, 794, in the 223rd District Court in and for Gray County, Texas, following the entry of a default judgment against the Real Party in Interest, Krisu Hospitality, LLC. By two arguments, FDB Pools contends the order granting a new trial was inappropriate because (1) the trial court lacked both a factual and legal basis for granting a new trial and (2) the order failed to set out in reasonable detail the court's justification for issuing that order.

         Background

         FDB Pools constructed a swimming pool at Krisu's newly constructed motel in Pampa, Gray County, Texas, on behalf of M&L Builders, Inc. When M&L failed to make payment as required by its contractual arrangement, FDB Pools filed a document entitled Affidavit Claiming Lien, claiming a mechanic's and materialmen's lien against the Gray County property and the retainage funds being held by Krisu. Thereafter, on March 3, 2017, FDB Pools filed suit against Krisu and M&L seeking the recovery of sums due and execution of the liens against the property and retainage funds.

         At the time suit was filed, FDB Pools requested the issuance of service of citation as to Krisu "by serving its registered agent PIYUSH PATEL, 6 SHINECOCK DR., AMARILLO, TEXAS, 79124, " because that was the address of the registered agent as maintained by the Texas Secretary of State. The actual address was 6 Shinnecock Dr. (with two "n"s), as opposed to 6 Shinecock Dr. (with one "n"). Without attempting to personally serve the registered agent at that address, FDB Pools's process server "concluded" that the address did not exist because a search of the Potter-Randall Appraisal District's website yielded no results.[1] Based on the process server's conclusion that the address did not exist, FDB Pools filed an amended petition seeking service of process as to Krisu by serving the Texas Secretary of State pursuant to the provisions of section 5.251 of the Texas Business Organizations Act. That act provides as follows:

         The secretary of state is an agent of an entity for purposes of service of process, notice or demand on the entity if:

(1) The entity is a filing entity or a foreign filing entity and;
(A)The entity fails to appoint or does not maintain a registered agent in this state; or
(B)The registered agent of the entity cannot with reasonable diligence be found at the registered office ...

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