Bank of New York Mellon F/K/A Bank of New York as Trustee for the Certificate Holders of CWABS, Inc., Asset-Backed Certificates Series 2006-10 v. NSL Property Holdings, LLC ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00465-CV
BANK OF NEW YORK MELLON APPELLANT
F/K/A BANK OF NEW YORK AS
TRUSTEE FOR THE CERTIFICATE
HOLDERS OF CWABS, INC.,
ASSET-BACKED CERTIFICATES
SERIES 2006-10
V.
NSL PROPERTY HOLDINGS, LLC APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 352-291732-17
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MEMORANDUM OPINION1
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This is a restricted appeal from a no-answer default judgment. Appellant
Bank of New York Mellon f/k/a Bank of New York as Trustee for the Certificate
Holders of CWABS, Inc., Asset-Backed Certificates Series 2006–10 (Bank of
1
See Tex. R. App. P. 47.4.
New York) appeals the trial court’s final judgment in favor of appellee NSL
Property Holdings, LLC (NSL). Bank of New York argues that we must reverse
the trial court’s judgment because the face of the record shows improper service
of process. We disagree and affirm the trial court’s judgment.
Background
The underlying dispute concerns title to real property. NSL filed a petition
against Bank of New York for trespass to try title to property located in North
Richland Hills. In NSL’s petition, regarding service of citation, it alleged that
Bank of New York was formerly known as Irving Trust Company, that Bank of
New York was being sued “in its capacity as a foreign fiduciary corporation,” that
Bank of New York had “irrevocably appointed the Texas Secretary of State to act
as its agent for service of process” under chapter 505 of the estates code, and
that Bank of New York had designated Stephen Wells to receive the citation and
petition from the secretary of state. Concerning the property, NSL alleged that it
owned the property through a recorded deed; that Bank of New York had claimed
an encumbrance against the property through a deed of trust; that Bank of New
York had filed an action to foreclose the property, had obtained an order
authorizing foreclosure, and had sold the property to itself at a foreclosure sale;
and that the foreclosure was void and therefore failed to transfer title of the
property to Bank of New York. NSL asked the trial court to “decree that title to
the property [was] vested in [NSL] free of the deed of trust.”
2
To its petition, NSL attached a 1981 document signed by executives of the
Irving Trust Company. The document was addressed to the secretary of state
and stated that it was an application under section 105A of the probate code2 for
the company to serve in a fiduciary capacity. NSL also attached a document in
which Irving Trust Company irrevocably appointed the secretary of state to act as
its agent for service of process for any matter in which the company was acting in
a fiduciary capacity. Finally, NSL attached a document in which Irving Trust
Company, “having duly appointed” the secretary of state to serve as its agent for
service of process, designated Wells as the agent to whom the secretary of state
could forward process.
A process server served citation on Bank of New York through the
secretary of state. Bank of New York did not file an answer. NSL filed a motion
for entry of a default judgment. In the motion, NSL asserted that because Bank
of New York was “sued in its capacity as a foreign fiduciary, service was on the
Texas Secretary of State, who was appointed (irrevocably) as agent for service
of process.” NSL attached an affidavit to its motion that was signed by Mike
Rhima, an executive with NSL, and that stated:
Defendant is sued herein in its capacity as a foreign fiduciary
corporation. Defendant is authorized by its charter and the laws of
the state of its formation to act as a corporate fiduciary in its home
2
The text of former section 105A of the probate code now appears, with
some nonsubstantive, stylistic changes, in section 505.004 of the estates code,
which we discuss in detail below. See Bank of New York v. Chesapeake 34771
Land Tr., 456 S.W.3d 628, 635 n.1 (Tex. App.—El Paso 2015, pet. denied)
3
state and in this state. Defendant has been appointed by indenture
to act as the trustee of the CWABS, INC., ASSET-BACK[ED]
CERTIFICATES SERIES 2006 . . . . Pursuant to Estates Code
Chapter 505, . . . Defendant has irrevocably appointed the Texas
Secretary of State to act as its agent for service of process.
Defendant has designated the following person to receive [service of
process] from the Secretary of State[:]
Stephen B. Wells
One Wall Street
New York, NY 10005.
Service was sent to said person at that address by the
Secretary of State . . . .
Plaintiff is the owner of the property the subject of this suit
. . . . Plaintiff acquired title to the property on or about April 8, 2016,
recording its deed . . . .
Plaintiff’s predecessor encumbered the property with a deed
of trust . . . in favor of Countrywide Home Loans, Inc. The said deed
of trust is a home equity deed of trust . . . that requires a judicial
decree to enable the holder to exercise the powers of sale.
Defendant claimed ownership of the deed of trust by virtue of
an Assignment . . . . The trust which claims ownership of the deed
of trust was not empowered by [its] founding documents . . . to
acquire this deed of trust, and is therefore unable to claim any rights
thereunder. Defendant, acting on behalf of the trust, filed an action
. . . to foreclose the property . . . .
Plaintiff filed an answer in said suit. Notwithstanding Plaintiff’s
answer and appearance in said case, the Court entered a Default
Order on October 21, 2016, authorizing the foreclosure of the
property. . . . Defendant conducted a foreclosure sale, selling the
property to itself. The Substitute Trustee’s Deed is recorded in the
Tarrant County Deed Records . . . .
Plaintiff would show that the foreclosure is void, and . . . fails
to transfer title to the property. In fact, Defendant has no title to the
real estate because the foreclosure sale purporting to convey title
was void. . . .
4
Plaintiff would further show that Defendant never acquired the
Deed of Trust because it was unable to do so according to the
documents creating said trust. Under the terms of the trust which
claims ownership of the deed of trust, the trust is prohibited from
acquiring said deed of trust.
The trial court granted NSL’s motion for a default judgment. In its final
judgment, the court found that “service of process . . . was accomplished
according to law” and that Bank of New York had defaulted by failing to answer
or appear. The court also found that Bank of New York was a “foreign fiduciary
and [was] sued in that capacity.” The court decreed that NSL owned the real
property at issue free of any encumbrance by a deed of trust.
The trial court signed its final judgment on June 28, 2017. Exactly six
months later, on December 28, 2017, Bank of New York filed a notice of
restricted appeal.
This Restricted Appeal – No Error on the Face of the Record
In one issue, Bank of New York contends that we should reverse the trial
court’s judgment because the record shows all of the requirements for a
restricted appeal, including error on the face of the record because of improper
service of process. NSL contends that the record does not show error because
service was proper.
Standards for restricted appeals
A restricted appeal is a direct attack on a trial court’s judgment. Aero at
Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 315 (Tex. App.—Fort Worth 2015, no
pet.). To prevail in its restricted appeal, Bank of New York must establish that
5
(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
postjudgment 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;
Clamon v. DeLong, 477 S.W.3d 823, 825 (Tex. App.—Fort Worth 2015, no pet.).
The face of the record in a restricted appeal “consists of the papers on file with
the trial court when judgment was rendered.”3 See Clamon, 477 S.W.3d at 825.
Error that is “merely inferred” from the record will not suffice to reverse a trial
court’s judgment in a restricted appeal. Ginn v. Forrester, 282 S.W.3d 430, 431
(Tex. 2009).
NSL does not contest Bank of New York’s assertion that it satisfies the first
three requirements to succeed in its restricted appeal, and the record shows that
it does. Thus, whether we must reverse the trial court’s judgment depends on
whether error is apparent on the face of the record. See id.
Bank of New York relies only on alleged defects in service of process to
establish error apparent on the face of the record. Defective service of process
constitutes error apparent on the face of the record. U.S. Bank Nat’l Ass’n v.
3
Both parties attach documents to their briefs that are not part of our
appellate record. We cannot consider these documents in determining whether
there is error on the face of the record. See Molina v. Cervantes, No. 04-16-
00741-CV, 2017 WL 4014656, at *2 (Tex. App.—San Antonio Sept. 13, 2017, no
pet.) (mem. op.).
6
TFHSP LLC Series 6481, 487 S.W.3d 715, 717–18 (Tex. App.—Fort Worth
2016, no pet.). Service of process must be performed in strict compliance with
the appropriate statutory provisions to support a default judgment, and virtually
any deviation is sufficient to set aside a default judgment in a restricted appeal.
Id. at 718; see Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 871 (Tex.
App.—Houston [1st Dist.] 1995, no writ) (op. on reh’g) (cautioning that “strict
compliance does not require such absolute obeisance to the minutest detail”).
As we explained in U.S. Bank National Ass’n,
In analyzing whether the plaintiff strictly complied with the
appropriate statutory service-of-process requirements, there are no
presumptions favoring valid service in a direct attack on a default
judgment. The same rule applies to inferences of jurisdictional facts.
Because jurisdiction must affirmatively appear on the face of
the record, the plaintiff has the burden of making sufficient
allegations to bring the defendant within its provisions. The purpose
is to give the nonresident defendant notice of the facts on which the
plaintiff will rely as authorizing exercise of jurisdiction over the
defendant’s person. Unless the petition states the grounds of
jurisdiction, the defendant is not in a position to make an informed
decision as to whether he should appear and defend the suit, make
a special appearance to contest jurisdiction, or let the judgment go
by default and resist its enforcement in his own state on due process
grounds.
487 S.W.3d at 718 (citations omitted). Whether service strictly complied with the
statutes and rules is a question of law that we review de novo. LEJ Dev. Corp. v.
Sw. Bank, 407 S.W.3d 863, 866 (Tex. App.—Fort Worth 2013, no pet.).
Bank of New York proposes four reasons why the face of the record shows
defective service of process: (1) the appointment of the secretary of state to
7
receive service of process that NSL attached to its petition relates to Irving Trust
Company, not Bank of New York; (2) NSL relied on chapter 505 of the estates
code to justify service on the secretary of state, but chapter 505 only applies in
estate proceedings; (3) NSL failed to comply with statutory requirements for
service of process on a financial institution; and (4) Texas’s long-arm statute
does not authorize substituted service in the circumstances presented here. We
now examine these arguments.
Irving Trust Company’s appointment of secretary of state as process agent
First, Bank of New York argues that service of process through the
secretary of state was improper because while NSL relied on an allegation that
Bank of New York had irrevocably appointed the secretary of state as its agent
for service of process, the documents that NSL attached to its petition showed
only that Irving Trust Company had made such an appointment. Bank of New
York contends that there is “no evidence that [it] ever made a similar
appointment.” NSL argues that it alleged in the trial court that Irving Trust
Company had become Bank of New York and that this allegation, coupled with
the documents showing that Irving Trust Company had appointed the secretary
of state as its agent for service, authorized service on the secretary of state.
In NSL’s petition, it alleged that Bank of New York Mellon was formerly
known as Bank of New York and that Bank of New York was formerly known as
Irving Trust Company. Rhima’s affidavit, which NSL attached to its motion for
entry of a default judgment, stated the same. Thus, NSL pleaded and proved
8
identity between Irving Trust Company and the party it sued, Bank of New York
Mellon. To the extent that Bank of New York argues that there is error on the
face of the record because the record does not establish an identity of interest
between Irving Trust Company and Bank of New York Mellon, we reject that
argument.4
Broadly construed, Bank of New York’s brief may also be read to suggest
that the designation of the secretary of state to receive service of process
executed by Irving Trust Company could not legally bind the company under a
new name. But the general rule is that a “corporate name change does not affect
its identity, property rights, or liabilities.” N. Nat. Gas Co. v. Vanderburg, 785
S.W.2d 415, 421 (Tex. App.—Amarillo 1990, no writ); see Nelson v. Detroit &
Sec. Tr. Co., 56 S.W.2d 860, 862 (Tex. Comm’n App. 1933) (“The mere change
of name has no effect whatever upon the identity of a corporation, or upon its
property rights or liabilities.”); Zuniga v. Wooster Ladder Co., 119 S.W.3d 856,
862 (Tex. App.—San Antonio 2003, no pet.) (en banc) (“A corporate name
4
In its brief, Bank of New York twice refers to Irving Trust Company as
“some entity,” clearly implying to this court that Bank of New York is unaware of
any connection between itself and the named entity. Although we consider only
the face of the record in our decision to affirm the trial court’s judgment, we note
that our review of decisional authority establishes the very identity pleaded and
proved by NSL between Bank of New York and Irving Trust Company. See, e.g.,
King v. Bank of New York Mellon, 585 F. App’x 147, 148 (4th Cir. 2014) (“The
Bank of New York Mellon is Irving Trust Company’s successor in interest.”); New
Jersey Steel Corp. v. Bank of New York, 223 B.R. 406, 407 (S.D.N.Y. 1998)
(referring to Irving Trust Company as Bank of New York’s predecessor in
interest).
9
change has no effect on the identity of the company or its rights and liabilities.”).
To the extent that Bank of New York argues that a different rule applies here—
that is, to the extent that Bank of New York contends that Irving Trust Company’s
irrevocable appointment of the secretary of state to receive service of process did
not extend to Bank of New York and that NSL was required to show that Bank of
New York filed its own irrevocable appointment after the name change—it cites
no authority for such an argument, and we therefore overrule the argument as
inadequately briefed. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”); 1901 N.W. 28th St. Tr. v. Lillian Wilson, LLC, 535
S.W.3d 96, 102 (Tex. App.—Fort Worth 2017, no pet.).
For all of these reasons, we overrule the first part of Bank of New York’s
issue.
The application of chapter 505 of the estates code to this proceeding
In the second part of its only issue, Bank of New York argues that chapter
505 of the estates code, and more specifically, section 505.004, which authorizes
service of process on the secretary of state in certain circumstances, does not
apply to this proceeding because “the underlying proceeding was not an estate
proceeding.” We disagree.
In NSL’s petition, it pleaded that under the provisions of chapter 505, Bank
of New York was a foreign fiduciary corporation that could be served with
process through service on the secretary of state. Chapter 505 applies to foreign
10
corporate fiduciaries, which are corporate fiduciaries that do not have main
offices or branch offices in this state. Tex. Est. Code Ann. § 505.001 (West
2014). A foreign corporate fiduciary may “may be appointed by will, deed,
agreement, declaration, indenture, court order or decree, or otherwise and may
serve in this state in any fiduciary capacity,” including as the trustee of a personal
or corporate trust.5 Id. § 505.003(a)(1) (West 2014). Before serving in this state
in a fiduciary capacity, the foreign corporate fiduciary must file certain documents
with the secretary of state, including
(2) a properly executed written instrument that by the instrument’s
terms is of indefinite duration and irrevocable, appointing the
secretary of state[6] and the secretary of state’s successors as the
fiduciary’s agent for service of process on whom notices and
processes issued by a court of this state may be served in an action
or proceeding relating to a trust, estate, fund, or other matter within
this state with respect to which the fiduciary is acting in a fiduciary
capacity, including the acts or defaults of the fiduciary with respect to
that trust, estate, or fund; and
5
NSL pleaded in its petition,
Defendant is authorized by its charter and the laws of the state of its
formation to act as a corporate fiduciary in its home state and in this
state. Defendant has been appointed by indenture to act as the
trustee of the CWABS, INC., ASSET-BACK CERTIFICATES
SERIES 2006, as found in the records of the United States
Securities and Exchange Commission.
6
We recognize that Irving Trust Company’s appointment of the secretary of
state that appears in the record bears a date of March 1981. Bank of New York
has not directed this court to any authority indicating that an irrevocable
appointment of the secretary of state lapses after a certain duration or that a
foreign corporate fiduciary must update or renew such an appointment for the
appointment to remain effective.
11
(3) a written certificate of designation specifying the name and
address of the officer, agent, or other person to whom the secretary
of state shall forward notices and processes described by
Subdivision (2).[7]
Id. § 505.004(a)(2)–(3) (West 2014). Once the secretary of state receives
service of process under section 505.004(a)(2), the secretary of state must
“promptly forward the notice of process” by registered or certified mail to the
person designated by the foreign corporate fiduciary. Id. § 505.005(a) (West
2014).8 Service of process on the secretary of state as an agent for a foreign
corporate fiduciary “has the same effect as if personal service had been had in
this state on the foreign corporate fiduciary.” Id. § 505.005(b).
Bank of New York contends that service upon the secretary of state under
these provisions was improper because the provisions apply only in “estate
proceedings, and the underlying action was not part of any estate proceeding.”
Applying the plain language of section 505.004(a)(2), we cannot agree. See
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)
7
NSL pleaded that it was suing Bank of New York in its capacity as a
foreign fiduciary corporation and in its capacity as trustee “for the Certificate
Holders of CWABS, INC, ASSET-BACKED CERTIFICATES SERIES 2006-10.”
NSL pleaded that Bank of New York’s predecessor, Irving Trust Company, had
executed an irrevocable appointment of the secretary of state to receive service
of process and had designated Wells as the person to whom the secretary of
state could forward the process.
8
The record shows that a process server delivered process to the secretary
of state. Rhima stated in his affidavit that the secretary of state forwarded
process to Wells, and Bank of New York does not contest service on the ground
that Wells did not receive notice of process.
12
(explaining that our objective in statutory interpretation is to discern the
legislature’s intent through the statute’s plain language); see also Prairie View
A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012) (explaining that a
statute’s plain language is the “surest guide” to the legislature’s intent). As stated
in the excerpt from section 505.004 that we have quoted above, a foreign
corporate fiduciary’s appointment of the secretary of state as the fiduciary’s agent
for service of process applies to any action or proceeding “relating to a trust,
estate, fund, or other matter within this state with respect to which the fiduciary is
acting in a fiduciary capacity, including the acts or defaults of the fiduciary with
respect to that trust, estate, or fund.” Tex. Est. Code Ann. § 505.004(a)(2)
(emphasis added). We cannot render this disjunctive statutory language
meaningless by concluding that it applies only to estate proceedings. See TIC
Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016) (stating that a
court must construe a statute in a way that gives effect to each provision so that
“none is rendered meaningless or mere surplusage”); see also Moss v. U.S.
Bank Nat’l Ass’n for Residential Asset Mortg. Prods., No. 3:17-CV-1526-D, 2017
WL 4923894, at *1, *4 (N.D. Tex. Oct. 31, 2017) (applying section 505.004(a)(1)
in a suit to quiet title to residential property).
We acknowledge that our sister court of appeals in El Paso reached a
contrary conclusion. See Bank of New York, 456 S.W.3d at 635 (stating that the
“appointment of the Secretary of State as the agent to receive service of process
under [section 505.004(b)] is limited to matters related to an estate in which the
13
foreign bank or trust company is acting as an executor, administrator, trustee,
guardian of the estate, or in any other fiduciary capacity”). Bank of New York
relies on the decision by the El Paso court, but that court did not cite any
authority supporting its conclusion that section 505.004(b) applies only in estate
proceedings, and as explained above, the statute’s plain language does not
support that conclusion.
Bank of New York also relies on section 21.006 of the estates code, which
states that the “procedure prescribed by Title 2 [of the estates code] governs all
probate proceedings.” Tex. Est. Code Ann. § 21.006 (West 2014). Bank of New
York contends that because section 505.004 is within Title 2 of the estates code,
section 505.004(a)(2) applies only in probate proceedings. Again, we cannot
agree because the broad and disjunctive language of section 505.004(a)(2)
expresses the legislature’s intent that it applies in any proceeding in which a
foreign corporate fiduciary acts in a fiduciary capacity concerning a “trust, estate,
fund, or other matter within this state.” See Tex. Est. Code Ann. § 505.004(a)(2).
To the extent of any conflict, we conclude that the more specific language of
section 505.004(a)(2) prevails. See Tex. Gov’t Code Ann. § 311.026(b) (West
2013).
Bank of New York also argues in the second part of its issue that NSL’s
petition did not allege that this was an “action or proceeding relating to a trust,
estate, fund, or other matter within this state with respect to which the fiduciary is
acting in a fiduciary capacity, including the acts or defaults of the fiduciary with
14
respect to that trust, estate, or fund.” We disagree. NSL alleged that this
proceeding related to a trust because it sued Bank of New York in its capacity as
trustee “for the Certificate Holders of CWABS, INC, ASSET-BACKED
CERTIFICATES SERIES 2006-10” and because it pleaded that Bank of New
York had acted on behalf of the trust while seeking foreclosure of the property at
issue. And NSL alleged that the proceeding related to Bank of New York’s
fiduciary acts because it sued Bank of New York in its capacity as a foreign
fiduciary corporation.9
Finally, we emphasize that this case is factually distinguishable from our
decision in U.S. Bank National Ass’n, in which we held that we were prohibited
from inferring facts authorizing service on the secretary of state under section
505.004(a)(2) “based solely on the name of the defendant contained in [the
plaintiff’s] petition.” See 487 S.W.3d at 719. Here, as explained above, NSL
alleged those facts in its petition; the facts are not derived solely from Bank of
New York’s name.
For these reasons, we overrule the second part of Bank of New York’s
issue.
9
We also note that as a matter of law, a trustee owes fiduciary duties when
it acts on behalf of a trust. See, e.g., Levine v. Steve Scharn Custom Homes,
Inc., 448 S.W.3d 637, 659 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)
(citing Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005)).
15
Service on a financial institution under section 17.028 of the civil practice
and remedies code
Next, Bank of New York contends that the face of the record shows error
because Bank of New York is a financial institution, because section 17.028 of
the civil practice and remedies code specifies requirements for service of process
on financial institutions, and because the record does not show compliance with
those requirements. Section 17.028 states that citation on a financial institution 10
may be completed by serving the financial institution’s registered agent. Tex.
Civ. Prac. & Rem. Code Ann. § 17.028(a)–(b)(1). If citation is not served on a
financial institution as provided by section 17.028, the financial institution may
“maintain an action to set aside the default judgment . . . entered against the
financial institution.” Id. § 17.028(d). Bank of New York contends that the record
shows that NSL failed to serve its registered agent and relies on an exhibit
attached to its brief (but not included in the record) to show that its registered
agent is a Dallas company.
In Moss, the federal court considered whether section 505.004 and section
17.028 are reconcilable when a plaintiff sues a foreign corporate fiduciary. See
2017 WL 4923894, at *4. The court held that the provisions are reconcilable and
that service under section 505.004 may satisfy section 17.028’s requirement,
reasoning,
10
A “financial institution” under section 17.028 includes, among other
entities, banks and trust companies. See Tex. Civ. Prac. & Rem. Code Ann.
§ 17.028(a) (West 2015); Tex. Fin. Code Ann. § 201.101(1)(A), (E) (West 2016).
16
Service on the Secretary of State when a financial institution is
acting as a foreign corporate fiduciary under the Estates Code . . .
does not run afoul of [section] 17.028. The Estates Code requires
the foreign corporate fiduciary acting as a trustee to appoint “the
secretary of state and the secretary of state’s successors as the
fiduciary’s agent for service of process,” specifically for actions
related to the trust “to which the fiduciary is acting in a fiduciary
capacity.” Tex. Est. Code. § 505.004(a)(2). This appointment is “of
indefinite duration and irrevocable.” Id. Section 17.028’s required
methods of service on a financial institution include “serving the
registered agent of the financial institution.” Tex. Civ. Prac. & Rem.
Code Ann. § 17.028(b). Because under the Estates Code the
financial institution appoints the Secretary of State as its agent when
it acts as foreign corporate fiduciary, serving the Secretary of State
qualifies as “serving the registered agent of the financial institution.”
Valid service of a financial institution serving as a foreign corporate
fiduciary under the Estates Code is therefore valid service under
[section] 17.028.
Id.
We agree with this holding and reasoning.11 Accordingly, we hold that the
record shows compliance with both section 505.004(b)(2) and section
17.028(b)(1) through service on the secretary of state, which Bank of New York
(through its predecessor in name) appointed as its agent for service of process
for this kind of a proceeding. See Tex. Civ. Prac. & Rem. Code Ann.
§ 17.028(b)(1); Tex. Est. Code Ann. § 505.004(b)(2); Moss, 2017 WL 4923894,
at *4. We overrule the third part of Bank of New York’s issue.
11
While Bank of New York relies on a case from the court of appeals in
Dallas to contend that service in this case was improper because of failure to
comply with section 17.028, the opinion in that case did not address whether
service under section 505.004(a)(2) could meet section 17.028(b)(1)’s
requirement for service. See The Bank of New York Mellon v. Redbud 115 Land
Tr., 452 S.W.3d 868, 871–74 (Tex. App.—Dallas 2014, pet. denied).
17
Service under the long-arm statute
Finally, Bank of New York contends that the Texas long-arm statute does
not authorize “substituted service” on the secretary of state in this case. Section
17.044 of the civil practice and remedies code states that the secretary of state is
an agent for service of process on a nonresident in certain circumstances. Tex.
Civ. Prac. & Rem. Code Ann. § 17.044(a)–(b) (West 2015). Bank of New York
contends that NSL did not “allege any facts in the [p]etition to support any of”
those circumstances.12 But given our conclusions above that the record
demonstrates proper service on the secretary of state under section
505.004(b)(2) of the estates code and under section 17.028 of the civil practice
and remedies code, it is immaterial whether substituted service on the secretary
of state would have been proper under section 17.044 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 17.028(b)(1); Tex. Est.
Code Ann. § 505.004(b)(2). We overrule the fourth and final part of Bank of New
York’s issue.
Conclusion
For the reasons stated above, we reject Bank of New York’s assertion that
the face of the record shows error through defective service of process. Bank of
New York, therefore, cannot prevail in this restricted appeal. See Tex. R. App. P.
12
NSL did not rely on section 17.044 in the trial court to justify service of
process on the secretary of state, nor does NSL rely on section 17.044 on
appeal.
18
26.1(c), 30; Clamon, 477 S.W.3d at 825. Having overruled Bank of New York’s
only issue, we affirm the trial court’s judgment.
/s/ Wade Birdwell
WADE BIRDWELL
JUSTICE
PANEL: KERR, PITTMAN, and BIRDWELL, JJ.
DELIVERED: June 28, 2018
19