WTW Americas, Inc. v. Systems Integration, Inc. ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00066-CV

WTW Americas, Inc.,

                                                                                    Appellant

 v.

Systems Integration, Inc.,

                                                                                    Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 70849

O p i n i o n

Systems Integration, Inc. obtained a default judgment against WTW Americas, Inc., a Canadian entity, after serving the Secretary of State with process under the Texas long-arm statute.  See Tex. Civ. Prac. & Rem. Code Ann. § 17.044 (Vernon 1997).  The trial court denied WTW’s motion for new trial, and WTW raises three issues in this appeal.  We will reverse and remand.

After the default judgment had been entered, WTW, unaware of the default judgment, filed an answer and a counterclaim and a third-party petition against Holcim Texas Limited Partnership, which then counterclaimed against WTW.  WTW claims that when the default judgment was entered, the default judgment disposed of, and the trial court intended to dispose of, all claims and parties.[1]  We agree.

“A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree.”  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  No presumption of finality follows a default judgment.  See id. at 199-200.  But a default judgment is deemed final if it expresses an unequivocal intent to finally dispose of the case.  In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005).  Absent a conventional trial on the merits, a judgment is final “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.”  Lehmann, 39 S.W.3d at 192-93.  Because the trial court indisputably did dispose of, and intended to dispose of, all parties and claims at the time it entered the default judgment, we have jurisdiction to address the merits of this appeal.

The record shows that Systems duly served the Secretary of State.  Upon being served, the long-arm statute requires the Secretary of State to mail a copy of the process to the nonresident by registered mail or by certified mail, return receipt requested.  Tex. Civ. Prac. & Rem. Code Ann. § 17.045(a), (d) (Vernon Supp. 2006).

For the trial court to have personal jurisdiction over the defendant, the record must affirmatively show that the Secretary of State forwarded a copy of the citation and attached original petition to the defendant.  See Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96-97 (Tex. 1973); Redwood Group, L.L.C. v. Louiseau, 113 S.W.3d 866, 870 (Tex. App.—Austin 2003, no pet.).  This requirement is typically met by filing with the trial court what has become known as a Whitney certificate. See Whitney, 500 S.W.2d at 96; Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 274 n.1 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

In its first issue, WTW contends that the record is silent on the question of whether the Secretary of State forwarded the documents as required.  Systems concedes that there was no Whitney certificate or any other form of proof of mailing by the Secretary of State in the record before the default judgment was obtained.  Instead, Systems, principally citing Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990), argues that WTW waived its complaint about the absence of a Whitney certificate because WTW did not bring it to the trial court’s attention and, in its motion for new trial and appellate brief, judicially admitted that it had been served by the Secretary of State.

WTW was not required to raise the absence of the Whitney certificate in its motion for new trial.  See Wilson, 800 S.W.2d at 837 (citing Tex. R. Civ. P. 324). And we decline to find waiver based on alleged judicial admissions that WTW was served by the Secretary of State.  See Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 861 (Tex. App.—San Antonio 2002, pet. denied) (referring to strict standards governing judicial admissions in default judgment context); see also Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex. 1993) (testimony constituting conclusive judicial admission must be, inter alia, deliberate, clear and unequivocal).  WTW did not judicially admit that it was duly served in accordance with section 17.045 by registered mail or by certified mail, return receipt requested, and we will not use an implication or inference to create a judicial admission, particularly in the default judgment context.  See Benefit Planners, 81 S.W.3d at 861; see also Anderson v. Vaughn, 2006 WL 1211094, at *2 (Tex. App.—Amarillo May 3, 2006, no pet. h.) (mem. op.) (rejecting waiver and judicial admission argument in default judgment context).

The trial court erred in entering the default judgment against WTW because it did not have personal jurisdiction over WTW.  See Roberts v. Niekerk, 730 S.W.2d 341, 343 (Tex. App.—Dallas 1987, writ ref’d).  WTW’s first issue is sustained.  Because the first issue is dispositive, we do not consider the remaining two issues.  We reverse the default judgment and remand the cause for further proceedings.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed March 14, 2007

[CV06]

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[1]               WTW filed a response to our request for briefing on whether the default judgment was interlocutory, but Systems did not file a reply to WTW’s response.