WWLC Investment, L.P. v. Sorab Miraki, and Tom Wylie ( 2018 )

ACCEPTED
05-17-01126-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/21/2018 12:33 PM
LISA MATZ
CLERK
No. 05-17-01126-CV
_____________
FILED IN
5th COURT OF APPEALS
IN THE DALLAS, TEXAS
5/21/2018 12:33:19 PM
FIFTH DISTRICT COURT OF APPEALS LISA MATZ
Clerk
AT DALLAS, TEXAS
WWLC INVESTMENT, L.P.,
Appellant,
vs.
SORAB MIRAKI,
Appellee.
_____________
Appealed from the 416th Judicial District Court of Collin County, Texas
__________________________________________________________________
REPLY BRIEF OF APPELLANT WWLC INVESTMENT, L.P.
__________________________________________________________________
PALMER & MANUEL, PLLC
By: /s/ Jeffrey R. Sandberg
Jeffrey R. Sandberg
State Bar No. 00790051
jsandberg@pamlaw.com
8350 N. Central Expressway; Suite 1111
Dallas, Texas 75206
(214) 242-6444/Fax (214) 265-1950
COUNSEL FOR APPELLANT WWLC
INVESTMENT, L.P.,
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ..................................................................................... v
INTRODUCTION...................................................................................................... 1
REPLY ISSUES PRESENTED FOR REVIEW ........................................................ 2
REPLY - SUMMARY OF ARGUMENT ................................................................. 3
BRIEF OF ARGUMENT ........................................................................................... 3
REPLY ISSUE ONE (Restated) ................................................................................ 5
The Trial Court Erred When It Sua Sponte Entered the Final Judgment That
WWLC’s Petition for Bill of Review Was Denied Because There Was No
Consent by WWLC’s Counsel. (CR136; RR2 6-9)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE ONE ............................ 5
REPLY ISSUE TWO (Restated) ............................................................................... 6
Because the Order Authorizing Substituted Service and Return of Service Do
Not State the Nature of the Address for Substituted Service, the Substituted
Service is Defective. (CR131, 132)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE TWO ........................... 6
ISSUE THREE (Restated) ......................................................................................... 7
The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Citation Did Not Comply with Texas
Law –Service Upon a Limited Partnership Is Not Properly Addressed to an
“Owner.” (CR 136)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE THREE ....................... 7
A. The Citation Is Addressed to Wendy Chen, Owner and Is Not Addressed
to Wendy Chen, President as Argued by Appellee. ......................................... 7
ii
B. Because the Corporate General Partner Was Not Defunct at the Time
of the Issuance of the Citation and Its Receipt by the Process Server,
the Citation to “Owner” Failed to Comply with Texas Law. ........................... 8
C. Because the Citation is Defective - The Citation is Improperly Addressed
to “Wendy Chen, Owner” - Service Is Defective. ........................................... 9
D. The Information Regarding the Corporate General Partner’s Charter
Being Revoked Was Not Filed in the Underlying Case and Was Not Filed
in the Petition for Review Proceeding Until 2017 – More Than a Year
After the Default Judgment Was Entered in 2016. .......................................... 9
REPLY ISSUE FOUR (Restated) ............................................................................ 10
The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Attempted Service Before the
Substituted Service Did Not Comply with Texas Law – There Was No
Attempted Service Upon a Registered Agent or Partner Before the Substituted
Service. (CR 136; App.)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FOUR........................ 10
A. No Service Was Attempted at the Address of the Registered Agent or
Another Person Authorized to Be Served by Texas Law. ............................. 10
B. The Information Regarding the Corporate General Partner’s Charter
Being Revoked Was Not Filed in the Underlying Case and Was Not Filed
in the Petition for Review Proceeding Until 2017 – More Than a Year
After the Default Judgment Was Entered in 2016. ....................................... .12
REPLY ISSUE FIVE (Restated) .............................................................................. 13
Service is Defective Because the Return of Service States the Petition, Not the First
Amended Petition, Was Attached to the Front Door. (CR131)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FIVE ......................... 13
REPLY ISSUE SIX (Restated) ................................................................................ 14
WWLC Requests Rendition of Judgment on the Threshold Petition for Bill of
Review Issue – Defective Service – and a Remand on the Substantive Issues in
the Underlying Litigation. (CR136)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE SIX ............................ 14
iii
A. There Are No Presumptions in Favor of Compliance with Texas Law
Regarding Service When A Default Judgment is Directly Attacked. ............ 14
B. The Justice Court Eviction Petition Does Not Make Wendy Chen an
“Agent” for Service of Process. .................................................................... .14
C. The Justice Court Eviction Petition Was Not Filed in the Underlying
Case and Was Not Filed in the Petition for Review Proceeding
Until 2017 – More Than a Year After the Default Judgment Was
Entered in 2016. ............................................................................................. 15
PRAYER .................................................................................................................. 15
CERTIFICATE OF SERVICE ................................................................................ 16
CERTIFICATE OF COMPLIANCE – WORD COUNT ........................................ 17
iv
TABLE OF AUTHORITIES
CASES: PAGE
Bailey’s Furniture, Inc. v. Graham-Rutledge & Co.,
No. 05-11-0071 0-CV, 2012 WL 6554420
(Tex. App.—Dallas 2012, no pet.). ................................................ 9, 10, 12, 15
Brown v. Magnetic Media, Inc.,
795 S.W.2d 41(Tex. App.—Houston [1st Dist.] 1990, no writ). ..................... 7
Davis v. Martin,
No. 01-07-00831-CV, 2009 Tex. App. LEXIS 1040
(Tex. App.--Houston [1st Dist.] Feb. 12, 2009, no pet.).................................. 7
Hurd v. D.E. Goldsmith Chem. Metal Corp.,
600 S.W.2d 345 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ). .......... 7
Lytle v. Cunningham,
261 S.W.3d 83 (Tex. App.—Dallas 2008, no pet.). ......................................... 3
Marrot Commns., Inc. v. Town & Countrv P’ship,
227 S.W.3d 372 (Tex. App.—Houston [1st Dist.1 2007,
pet. denied). ........................................................................................ 10, 12, 15
McKanna v. Edgar,
388 S.W.2d 927 (Tex.1965)........................................................................... 14
Primate Constr., Inc. v. Silver,
884 S.W.2d 151 (Tex. 1994).......................................................................... 13
Shamrock Oil Co. v. Gulf Coast Nat. Gas, Inc.,
68 S.W.3d 737 (Tex. App.—Houston [14th Dist.] 2001, pet denied). .......... 13
Titus v. Southern Cnty. Mut. Ins. as Subrogee for T.W. Sales,
No. 03-05-00310-CV (Tex. App.—Austin 2009, no pet.). .............................. 7
Uvalde Country Club v. Martin Linen Supply Co.,
690 S.W.2d 884 (Tex.1985)........................................................................... 14
v
Wilson v. Dunn,
800 S.W.2d 833 (Tex.1990)....................................................................... 3, 14
STATUTES PAGE
TEX. BUS. ORGS. CODE § 5.201. ........................................................................... 9, 11
TEX. BUS. ORGS. CODE § 5.251. ........................................................................... 9, 11
TEX. BUS. ORGS. CODE § 5.255. ........................................................................... 9, 11
TEX. CIV. PRAC. & REM. CODE § 17.022. ............................................................. 9, 11
TEX. R. CIV. P. 106 ............................................................................................... 6, 11
vi
No. 05-17-01126-CV
_____________
IN THE
FIFTH DISTRICT COURT OF APPEALS
AT DALLAS, TEXAS
WWLC INVESTMENT, L.P.,
Appellant,
vs.
SORAB MIRAKI,
Appellee.
__________________________________________________________________
REPLY BRIEF OF APPELLANT WWLC INVESTMENT, L.P.
__________________________________________________________________
TO THE COURT OF APPEALS:
Appellant WWLC Investment, L.P., (“WWLC” or “Appellant”) submits this
Appellant’s Reply Brief. Appellee Sorab Miraki will be referred to as “Miraki” or
“Appellee.”
1
REPLY ISSUES PRESENTED FOR REVIEW
REPLY ISSUE ONE
The Trial Court Erred When It Sua Sponte Entered the Final Judgment That WWLC’s
Petition for Bill of Review Was Denied Because There Was No Consent by WWLC’s
Counsel. (CR136; RR2 6-9)
REPLY ISSUE TWO
Because the Order Authorizing Substituted Service and Return of Service Do Not State
the Nature of the Address for Substituted Service, the Substituted Service is Defective.
(CR131, 132)
REPLY ISSUE THREE
The Trial Court Erred When It Entered the Final Judgment Dismissing the Petition for
Bill of Review Because the Citation Did Not Comply with Texas Law –Service Upon a
Limited Partnership Is Not Properly Addressed to an “Owner.” (CR 136)
REPLY ISSUE FOUR
The Trial Court Erred When It Entered the Final Judgment Dismissing the Petition for
Bill of Review Because the Attempted Service Before the Substituted Service Did Not
Comply with Texas Law – There Was No Attempted Service Upon a Registered Agent
or Partner Before the Substituted Service. (CR 136; App.)
REPLY ISSUE FIVE
Service is Defective Because the Return of Service States the Petition, Not the First
Amended Petition, Was Attached to the Front Door. (CR131)
REPLY ISSUE SIX
WWLC Requests Rendition of Judgment on the Threshold Petition for Bill of Review
Issue – Defective Service – and a Remand on the Substantive Issues in the Underlying
Litigation. (CR136)
2
REPLY - SUMMARY OF ARGUMENT
If the record fails to affirmatively show strict compliance with the rules of civil
procedure governing issuance, service, and return of citation, there is error apparent on
the face of the record and attempted service of process is invalid and of no effect.
Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.—Dallas 2008, no pet.).
In response to the service defects requiring a reversal that are described in
WWLC’s Brief, Appellee wholly fails to show that the attempted service upon
WWLC’s “owner” was somehow proper under Texas law. Without multiple attempts
at service in compliance with Texas law - upon the registered agent or some other
person authorized by Texas law to be served with process - there was no attempted
compliant service before substituted service was requested and authorized. Further,
Appellee wholly fails to explain why an attempted service at a business entity’s place
of business might somehow comply with Texas law before Appellee moved for
alternative service. Instead, on page 18 of Appellee’s Brief, Appellee argues that
WWLC had “actual notice” of the lawsuit no later than December 15, 2015. Actual
notice of a lawsuit is not a substitute for service that complies with the requirements
mandated by Texas law, and “actual notice” is also not a substitute for the return of
service information that is required by Texas law. Even if a defendant has received
actual notice of a pending lawsuit, a default judgment rendered upon defective service
will not stand. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
3
On pages 15 and 19 of Appellee’s Brief, Appellee points this Court to the
forfeiture of the charter of WWLC’s general partner. Appellee summarily concludes
that this somehow authorizes service upon Wendy Chen as “owner” of WWLC, but
Appellee points to no Texas law in support of Appellee’s conclusion. If Appellee is
arguing that Wendy Chen could be served as a replacement general partner, then the
Citation would be required to expressly state that Wendy Chen was being served in her
capacity as a partner. Of course, the citation does not state that Wendy Chen is being
served in her capacity as a partner. (CR133)
4
BRIEF OF ARGUMENT
REPLY ISSUE ONE
(Restated)
The Trial Court Erred When It Sua Sponte Entered the Final Judgment That
WWLC’s Petition for Bill of Review Was Denied Because There Was No Consent
by WWLC’s Counsel. (CR136; RR2 6-9)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE ONE
On page 20 of Appellee’s Brief, Appellee points to the statement by the trial
court at the conclusion of the hearing that WWLC’s counsel consented to the June 14,
2017 trial on the petition for review. (CR256-57, RR2 67-68) To be clear, this is what
the trial court stated on the record at the conclusion of the hearing/trial. (RR2 67-68) It
is also clear that the Court was prepared to re-set the hearing on the temporary
injunction to mid-July, which would have resulted in a writ of execution being issued
and WWLC’s property sold. (RR2 68) WWLC had no real choice here, and this is not
“consent.” (RR2 68) Further, the trial court judge requested that the proceedings “go
off the record” following WWLC’s attorney repeated requests, and before WWLC
called its first witness. (RR2 6-9)
5
REPLY ISSUE TWO
(Restated)
Because the Order Authorizing Substituted Service and Return of Service Do Not
State the Nature of the Address for Substituted Service, the Substituted Service is
Defective. (CR131, 132)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE TWO
On page 20 of Appellee’s Brief, Appellee argues that Rule 106 permits an
affidavit seeking to support alternative service to identify any place where the
defendant can probably be found. See TEX. R. CIV. P. 106. Contrary to Appellee’s
argument, the order authorizing substituted service and the return of service also fail to
state that the address is one where the defendant can probably be found. (CR131, 132)
Appellee’s argument fails – the legal requirement relied upon by Appellee is not met
due to the omission of this language from the order authorizing substituted service and
return of service. Further, these are two different issues – language requirements for
the affidavit versus the order authorizing substituted service and return of service.
Rule 106’s requirements for the affidavit, on its face, do not mean that the omission of
the “nature of the address” from the order authorizing substituted service and return of
service is somehow excused.
Again, Texas law is clear - the order authorizing substituted service and return
of service must state the nature of the address being utilized for substituted service:
6
Furthermore, neither the trial court's order nor Smith's return of service
states that the address for substituted service was Titus's usual place of
abode or other place where she could probably be found. This, too, is an
error on the face of the record that requires reversal. See Brown v.
Magnetic Media, Inc., 795 S.W.2d 41, 43 (Tex. App.—Houston [1st
Dist.] 1990, no writ) (trial court's order and return of service must
specifically state that address for service was defendant's usual place of
business in order to comply with Rule 106); Hurd v. D.E. Goldsmith
Chem. Metal Corp., 600 S.W.2d 345, 346 (Tex. Civ. App.—Houston [1st
Dist.] 1980, no writ) (reversing default judgment where neither
constable's return nor trial court's order authorizing substitute service
under Rule 106(b) stated that address for substituted service was
defendant's usual place of business); see also Davis v. Martin, No. 01-07-
00831-CV, 2009 Tex. App. LEXIS 1040, at *17 n.7 (Tex. App.—
Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem. op.).
Titus v. Southern Cnty. Mut. Ins. as Subrogee for T.W. Sales, No. 03-05-00310-CV,
n.4 (Tex. App.—Austin 2009, no pet.).
REPLY ISSUE THREE
(Restated)
The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Citation Did Not Comply with Texas Law
–Service Upon a Limited Partnership Is Not Properly Addressed to an “Owner.”
(CR 136)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE THREE
A. The Citation Is Addressed to Wendy Chen, Owner and Is Not Addressed to
Wendy Chen, President as Argued by Appellee.
On page 21 of Appellee’s Brief, Appellee apparently is arguing that the Citation
is not defective because, according to Appellee, Wendy Chen was served in her
capacity as “President of Appellant’s defunct (at the time of attempted and completed
7
service of process) general partner.” This is false – the Citation states that Ms. Chen
was served as “Owner” and not in her capacity as “President.” (CR136)
B. Because the Corporate General Partner Was Not Defunct at the Time of
the Issuance of the Citation and Its Receipt by the Process Server, the
Citation to “Owner” Failed to Comply with Texas Law.
The Certificate of Amendment and the Assumed Name Certificate indicate that
WWLC’s registered agent is HPZ International, Inc., 100 N. Central Expressway, Suite
813, Richardson, Texas 75080. (RR5, pp. 36 &40/49; PX1)
The Citation was issued on January 13, 2016. (CR133) On page 15 of
Appellee’s Brief, Appellee asserts that “[o]n January 29, 2016, the corporate charter of
the entity Appellant alleges is its general partner was forfeited involuntarily by the
Texas Secretary of State. (CR189) Further, the Return of Service states that the
Citation was received by the process server on January 20, 2016 (CR131), and thus
before the forfeiture of the corporate charter on January 29, 2016. (CR189)
Clearly, the Citation was defective when it was issued by the clerk’s office and
received by the process server – the corporate general partner’s charter had not yet
been forfeited. As a result, and contrary to Appellee’s argument that the forfeiture of
the charter somehow permits service upon an “Owner,” the Citation is not addressed to
a person that Texas law provides may be properly served with process.
8
C. Because the Citation is Defective - The Citation is Improperly Addressed
to “Wendy Chen, Owner” - Service Is Defective.
“Owner” is not an appropriate person for service of citation upon a limited
partnership. TEX. BUS. ORGS. CODE §§ 5.201(b), 5.251, 5.255; TEX. CIV. PRAC. &
REM. CODE § 17.022. As a result, the Citation is defective and WWLC was never
properly served with process.
D. The Information Regarding the Corporate General Partner’s Charter
Being Revoked Was Not Filed in the Underlying Case and Was Not Filed in
the Petition for Review Proceeding Until 2017 – More Than a Year After
the Default Judgment Was Entered in 2016.
As shown above, the forfeiture of the corporate general partner’s charter
occurred after the Citation was issued by the clerk’s office and received by the process
server. Further, the documents regarding the corporate forfeiture were not filed in the
underlying litigation and were instead filed in the Petition for Bill of Review
proceeding on August 1, 2017 – when Appellee filed the document as supplemental
exhibits to Appellee’s Response to WWLC’s Motion for New Trial. (CR186, 189) As
a result, the corporate charter documents were not before the trial court at the time the
default judgment was entered on April 27, 2016. (CR15)
“Unless the record affirmatively shows, ‘at the time the default judgment is
entered,’ either an appearance by the defendant, proper service of citation, or a written
memorandum of waiver, the trial court does not have in personam jurisdiction to
render a default judgment against the defendant.” Bailey’s Furniture, Inc. v. Graham-
9
Rutledge & Co., No. 05-11-0071 0-CV, *4; 2012 WL 6554420 (Tex. App.—Dallas
2012, no pet.) (quoting Marrot Commns., Inc. v. Town & Countrv P’ship, 227 S.W.3d
372, 376 (Tex. App.—Houston [1st Dist.1 2007, pet. denied).
In conclusion, the forfeiture of the corporate charter is not relevant to this
Court’s analysis of whether the Citation complied with Texas law. See Bailey’s
Furniture, Inc., No. 05-11-0071 0-CV, *4.
REPLY ISSUE FOUR
(Restated)
The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Attempted Service Before the Substituted
Service Did Not Comply with Texas Law – There Was No Attempted Service
Upon a Registered Agent or Partner Before the Substituted Service. (CR 136;
App.)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FOUR
A. No Service Was Attempted at the Address of the Registered Agent or
Another Person Authorized to Be Served by Texas Law.
On page 21, Appellee argues that Texas law does not require that service be
attempted at multiple locations before substituted service may be authorized. While
this is a correct statement of law, Appellee fails to show that there were multiple
attempts to effect service before the substituted service was requested. The service
attempts by the process server upon “Wendy Chen, Owner” began on January 20, 2016
and concluded on January 29, 2016. (CR130) On page 15 of Appellee’s Brief,
10
Appellee asserts that “[o]n January 29, 2016, the corporate charter of the entity
Appellant alleges is its general partner was forfeited involuntarily by the Texas
Secretary of State. (CR189)
“Owner” is not an appropriate person for service of citation upon a limited
partnership. TEX. BUS. ORGS. CODE §§ 5.201(b), 5.251, 5.255; TEX. CIV. PRAC. & REM.
CODE § 17.022. As a result, the attempted service on and before January 29, 02016 is
defective, making the substituted service defective as well. Again, before a motion for
substituted service may be granted, service must be attempted under Rule 106(a). TEX.
R. CIV. P. 106(b). There must be a supporting affidavit establishing that service was
attempted more than once that complies with the personal service requirements of Rule
106(a)(1) or the mailing requirement of Rule 106(a)(2). TEX. R. CIV. P. 106(b).
The Certificate of Amendment and the Assumed Name Certificate indicate that
WWLC’s registered agent is HPZ International, Inc., 100 N. Central Expressway, Suite
813, Richardson, Texas 75080. (RR5, pp. 36 &40/49; PX1) The affidavit in support of
Miraki’s Motion for Substituted Service describes service attempts solely at the “above
mentioned address” – 5610 Eastside Ave., Dallas, Texas 75214. (CR129) With no
attempt to serve the registered agent or another person in compliance with Texas law,
Appellee’s substituted service was not proper, and the default judgment must be set
aside.
11
B. The Information Regarding the Corporate General Partner’s Charter
Being Revoked Was Not Filed in the Underlying Case and Was Not Filed in
the Petition for Review Proceeding Until 2017 – More Than a Year After
the Default Judgment Was Entered in 2016.
As shown above, the forfeiture of the corporate general partner’s charter
occurred after the Citation was issued by the clerk’s office and received by the process
server. Further, the documents regarding the corporate forfeiture were not filed in the
underlying litigation and were instead filed in the Petition for Bill of Review
proceeding on August 1, 2017 – when Appellee filed the document as supplemental
exhibits to Appellee’s Response to WWLC’s Motion for New Trial. (CR186, 189) As
a result, the corporate charter documents were not before the trial court at the time the
default judgment was entered on April 27, 2016. (CR15)
“Unless the record affirmatively shows, ‘at the time the default judgment is
entered,’ either an appearance by the defendant, proper service of citation, or a written
memorandum of waiver, the trial court does not have in personam jurisdiction to
render a default judgment against the defendant.” Bailey’s Furniture, Inc., No. 05-11-
0071 0-CV, *4 (quoting Marrot Commns., Inc., 227 S.W.3d at 376). In conclusion,
the forfeiture of the corporate charter is not relevant to this Court’s analysis of whether
the attempted service complied with Texas law. See Bailey’s Furniture, Inc., No. 05-
11-0071 0-CV, *4.
12
REPLY ISSUE FIVE
(Restated)
Service is Defective Because the Return of Service States the Petition, Not the
First Amended Petition, Was Attached to the Front Door. (CR131)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FIVE
The return of service must correctly identify the petition served on the
defendant. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)
(recitation that petition, instead of second amended petition, was served, was error).
Shamrock Oil Co. v. Gulf Coast Nat. Gas, Inc., 68 S.W.3d 737, 738-39 (Tex. App.—
Houston [14th Dist.] 2001, pet denied) (recitation that petition was served, without
correctly stating which petition was served, was error).
On page 22 of Appellee’s Brief, Appellee argues that the Return of Service, by
describing the Amended Petition as being “delivered,” shows that it was the Amended
Petition, and not the Original Petition, that was served. (CR131) While the Return of
Service states the Amended Petition was “delivered,” it also states the facts describing
the process server’s action: “By attaching a true copy of the Citation to Defendant
WLC Investment, LP, with a copy of the Petition [not the Amended Petition]
attached.” (CR131) The failure to accurately state that the First Amended Petition was
attached to the door is error. See Primate Constr., Inc., 884 S.W.2d at152; Shamrock
Oil Co., 68 S.W.3d at 738-39.
13
REPLY ISSUE SIX
WWLC Requests Rendition of Judgment on the Threshold Petition for Bill of
Review Issue – Defective Service – and a Remand on the Substantive Issues in the
Underlying Litigation. (CR136)
ARGUMENT AND AUTHORITIES FOR REPLY ISSUE SIX
A. There Are No Presumptions in Favor of Compliance with Texas Law
Regarding Service When A Default Judgment is Directly Attacked.
Strict compliance with the rules for service of citation must affirmatively appear
on the record in order for a default judgment to withstand direct attack. Wilson v.
Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply
Co., 690 S.W.2d 884, 886 (Tex.1985). There are no presumptions in favor of valid
issuance, service, and return of citation in the face of a direct attack on a default
judgment. Uvalde, 690 S.W.2d at 836; McKanna v. Edgar, 388 S.W.2d 927, 929
(Tex.1965). Contrary to Texas law, Appellee argues on pages 22 and 23 of Appellee’s
Brief that this Court should imply findings in support of the service of process and
apply a “factual sufficiency” standard of review. This is not the applicable standard of
review.
B. The Justice Court Eviction Petition Does Not Make Wendy Chen an
“Agent” for Service of Process.
On page 24 of Appellee’s Brief, Appellee argues that the Justice Court Eviction
Petition somehow makes Wendy Chen an appropriate agent for service because Wendy
Chen signed the Eviction Petition above the signature line for “Plaintiff
14
(Landlord/Property Owner) or Agent.” (CR122) Notably Appellee does not provide
any authorities or argument in support of Appellee’s conclusion, and the reason is
simple – there aren’t any.
C. The Justice Court Eviction Petition Was Not Filed in the Underlying Case
and Was Not Filed in the Petition for Review Proceeding Until 2017 –
More Than a Year After the Default Judgment Was Entered in 2016.
“Unless the record affirmatively shows, ‘at the time the default judgment is
entered,’ either an appearance by the defendant, proper service of citation, or a written
memorandum of waiver, the trial court does not have in personam jurisdiction to
render a default judgment against the defendant.” Bailey’s Furniture, Inc., No. 05-11-
0071 0-CV, *4 (quoting Marrot Commns., Inc., 227 S.W.3d at 376). On June 14, 2017
(CR60), Appellee filed a Brief in support of Appellee’s opposition to the injunctive
relief requested by WWLC and included the Justice Court Eviction Petition as an
exhibit. (CR122) The Eviction Petition is not relevant to this Court’s analysis, as it was
not timely before the trial court at the time of the default judgment. See Bailey’s
Furniture, Inc., No. 05-11-0071 0-CV, *4.
PRAYER
For all the reasons stated in Appellant’s Brief and this Reply Brief, Appellant
WWLC Investment, L.P. asks that this Court reverse the judgment of the trial court,
partially render judgment in favor of WWLC that the default judgment is void and
remand this cause for further proceedings.
15
Respectfully submitted,
PALMER & MANUEL, PLLC
By: /s/ Jeffrey R. Sandberg_
Jeffrey R. Sandberg
State Bar No. 00790051
jsandberg@pamlaw.com
8350 N. Central Expressway; Suite 1111
Dallas, Texas 75206
(214) 242-6444/ (214) 265-1950 – Fax
COUNSEL FOR APPELLANT
WWLC INVESTMENT, L.P.
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing
instrument was served upon opposing counsel, on the 21st day of May, 2018, upon:
Via E-Filing and Email (ewalker@mwtrialfirm.com):
Eric D. Walker, Esq.
MORALES |WALKER PLLC
6060 N. Central Expy., Suite 500
Dallas, Texas 75206
Telephone: 972.948.3646
Facsimile: 972.361.8005
Attorneys for Appellee Sorab Miraki
/s/ Jeffrey R. Sandberg
Jeffrey R. Sandberg
16
CERTIFICATE OF COMPLIANCE – WORD COUNT
Appellants file this Tex. R. App. P. 9.4 Certificate of Compliance regarding the
Appellant’s Reply Brief filed on this date. Counsel for Appellants certifies that
Appellant’s Reply Brief was generated by a computer using Microsoft Word 2007
which indicates that after excluding the caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of compliance,
and appendix, as permitted under Rule 9.4(i)(1) of the Texas Rules of Civil Procedure,
the word count of this document is 2,950.
/s/ Jeffrey R. Sandberg_
Jeffrey R. Sandberg
17