Joe Prado D/B/A JP Enterprises v. Leskel Nichols ( 2022 )

REVERSE and REMAND and Opinion Filed February 25, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01092-CV
JOE PRADO D/B/A JP ENTERPRISES, Appellant
V.
LESKEL NICHOLS, Appellee
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-04165
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Reichek
In this restricted appeal, Joe Prado d/b/a JP Enterprises (JP Enterprises)
appeals a no-answer default judgment awarding Leskel Nichols $200,000 in
damages. In three issues, JP Enterprises argues (1) there is no evidence to support
the damages awarded, (2) the record does not show strict compliance with the rules
of service, and (3) Nichols failed to allege facts sufficient to establish a cause of
action. For reasons set out below, we agree that service was invalid. Accordingly,
we reverse the trial court’s order granting default judgment and remand the cause to
the trial court for further proceedings.
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BACKGROUND
Nichols, representing himself, filed suit in state district court on March 13,
2020. The caption of the petition identified the defendant as “JOE PRADO ‘DBA
JP ENTERPRISES,’” and the body of the petition identified the defendant as “Joe
Prado ‘JP Enterprises’” and “Joe Prado DBA’ J.P. Enterprises.” In his petition,
Nichols alleged JP Enterprises executed a written contract to install a fence and
breached the agreement by failing to use the agreed-upon material and failing to
complete the project. He further alleged JP Enterprises damaged his foundation and
removed a bush without permission. Nichols’s petition sought “over [$]100,000 but
not more than [$]200,000” in damages. The petition alleged “Joe Prado DBA’ J.P.
Enterprises” was a “corporation, duly formed and existing under the laws of the State
of Texas” and “may be served with citation by serving Joe Prado ‘J.P. Enterprises’
at 908 McLean Ave. Dallas TX 75211.”
On the same day the petition was filed, citation was issued to “JOE PRADO
D/B/A JP Enterprises.” A return of service was filed six days later, showing that the
citation and petition were delivered in person to “Joe Prado.” JP Enterprises did not
file an answer.
Four months later, in July 2020, Nichols moved for entry of default judgment.
The motion purported to submit evidence to support the default judgment, including
Nichols’s affidavit, the contract, and the petition. Our record contains what Nichols
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identified as an “affidavit,” which references an appendix containing exhibits A
through F, but the exhibits were not attached to the affidavit.
The associate judge heard the case by submission and, on August 6, 2020,
signed Nichols’s proposed order, which stated “Plaintiff’s Motion for Default
Judgment in the amount of $200,000 against ‘JOE PRADO DBA ‘JP
ENTERPTISES’ [sic] is GRANTED.” On December 15, 2020, JP Enterprises filed
a notice of restricted appeal.
DISCUSSION
A. Standard of Review
A restricted appeal is a direct attack on the trial court’s judgment. Rone Eng’g
Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508 (Tex. App.—Dallas 2010, no pet.).
To prevail on a restricted appeal, the appellant must show that (1) it filed its notice
of restricted appeal within six months after the judgment was signed; (2) it was a
party to the underlying lawsuit; (3) it did not participate in the hearing that resulted
in the judgment complained of, and did not timely file any post-judgment motions
or requests for findings of fact and conclusions of law; and (4) error is apparent on
the face of the record. See TEX. R. APP. P. 26.1(c), 30; Alexander v. Lynda's
Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The first three requirements are not
contested here; thus, we consider only whether there is error apparent on the face of
the record.
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B. Applicable Law
In a restricted appeal, a party can establish error on the face of the record by
demonstrating that the record fails to affirmatively show strict compliance with the
rules of civil procedure governing issuance, service, and return of
citation. See Mandel v. Lewisville Indep. Sch. Dist., 445 S.W.3d 469, 474 (Tex.
App.—Fort Worth 2014, pet. denied). In contrast to the usual rule that all
presumptions—including valid issuance, service, and return of citation—will be
made in support of a judgment, no such presumptions apply to a direct attack on a
default judgment. See Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.
1994).
If the record does not show strict compliance with the rules governing citation
and return of service, then service is invalid and in personam jurisdiction cannot be
established. See TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 319 (Tex. App.—
Austin 2002, no pet.). Moreover, virtually any deviation from these rules is sufficient
to set aside a default judgment in a restricted appeal. Id. Even actual notice to a
defendant is insufficient to convey jurisdiction on the trial court and will not cure
defective service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Whether
service was in strict compliance with the rules is a question of law we review de
novo. U.S. Bank Tr., N.A. v. AJ & SAL Enters., LLC, No. 05-20-00346-CV, 2021
WL 1712213, at *2 (Tex. App.—Dallas Apr. 30, 2021, no pet.) (mem. op.).
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3. Invalid Service
In its second issue, JP Enterprises argues that the record does not affirmatively
show strict compliance with the rules governing service. Specifically, JP Enterprises
argues service was invalid because Nichols alleged JP Enterprises is a corporation,
and there is no indication of Joe Prado’s capacity to receive service on behalf of the
purported corporation. We agree.
A proper return of service must show the person or entity served. See TEX. R.
CIV. P. 107(b)(5). A corporation is not a person capable of accepting process on its
own behalf and therefore must be served through an agent. Paramount Credit, Inc.
v. Montgomery, 420 S.W.3d 226, 230 (Tex. App.—Houston [1st Dist.] 2013, no
pet.). Service may be made on the corporation’s registered agent, president, or any
vice president. TEX. BUS. ORGS. CODE ANN. §§ 5.201(b), 5.255(1). Thus, where
service is on a corporation, a proper return must also show both the name of the
person who received service and that the person was authorized to do so. See W.
Garry Waldrop DDS, Inc. v. Pham, No. 14-15-00747-CV, 2016 WL 4921588, at *3-
4 (Tex. App.—Houston [14th Dist.] Sept. 15, 2016, no pet.) (mem. op.); Inlog, Inc.,
v. Ryder Truck Rental, Inc., No. 02-19-00283-CV, 2020 WL 1887846, at *2 (Tex.
App.—Fort Worth Apr. 16, 2020, no pet.) (mem. op.).
Here, the face of the record shows that appellee filed suit against a Texas
corporation named either Joe Prado DBA J.P. Enterprises or Joe Prado “JP
Enterprises.” The return of service shows that Joe Prado was served but does not
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indicate his capacity to receive service on behalf of the purported corporation. See
Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 S.W.3d
903, 905 (Tex. App.—Dallas 2005, pet. denied) (concluding return that did not
indicate capacity of person served or explain authority to receive service as
registered agent rendered service invalid). Moreover, no other portion of the record
indicates Joe Prado’s authority to receive service on behalf of the corporation. We
conclude the face of the record fails to show strict compliance with the rules
governing return of service; thus, the trial court lacked jurisdiction to render a default
judgment against JP Enterprises. We sustain the second issue. Our resolution of
this issue makes it unnecessary to address appellant’s remaining issues. See TEX. R.
APP. P. 47.1.
We reverse the trial court’s order granting default judgment and remand the
cause to the trial court for further proceedings.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
201092F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOE PRADO D/B/A JP On Appeal from the 298th Judicial
ENTERPRISES, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-20-04165.
No. 05-20-01092-CV V. Opinion delivered by Justice
Reichek; Justices Partida-Kipness
LESKEL NICHOLS, Appellee and Goldstein participating.
In accordance with this Court’s opinion of this date, the trial court’s Order
Granting Motion For Default Judgment is REVERSED and this cause is
REMANDED to the trial court for further proceedings consistent with this
opinion.
It is ORDERED that appellant JOE PRADO D/B/A JP ENTERPRISES
recover its costs of this appeal from appellee LESKEL NICHOLS.
Judgment entered February 25, 2022.
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