Bank Repossessed Car Co. D/B/A Thirty Car Sales v. Who's Calling, Inc. ( 2007 )

Affirmed and Memorandum Opinion filed September 4, 2007

Affirmed and Memorandum Opinion filed September 4, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01251-CV

____________

BANK REPOSSESSED CAR CO. d/b/a THRIFTY CAR SALES, Appellant

V.

WHO=S CALLING, INC., Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 828,104

M E M O R A N D U M  O P I N I O N

This is a restricted appeal from a no-answer default judgment.  In a single issue, appellant Bank Repossessed Car Company d/b/a Thrifty Car Sales (AThrifty@) contends the trial court did not have jurisdiction to render a default judgment due to defects in service of process.  We affirm.

Factual and Procedural background

Appellee Who=s Calling, Inc. (AWho=s Calling@) filed suit against Thrifty for damages and attorney=s fees arising from Thrifty=s alleged breach of a written contract.  Pursuant to article 2.11(B) of the Texas Business Corporation Act, Who=s Calling served Thrifty by way of substitute service upon the Secretary of State of the State of Texas.  See Tex. Bus. Corp. Act Ann. art. 2.11(B) (Vernon Supp. 2003).^[1] On May 2, 2005, the Secretary of State forwarded the citation and Plaintiff=s First Amended Original Petition, by certified mail, to Thrifty=s registered agent at its registered address.  The process was returned to the office of the Secretary of State on May 16, 2005, bearing the notation AAttempted - Not Known.@

On June 10, 2005, Who=s Calling filed a motion for default judgment.  The trial court granted Who=s Calling=s motion on June 13, 2005.  Thrifty timely filed a notice of its restricted appeal on December 14, 2005. 

Discussion

I. Standard of Review

An appellant filing a restricted appeal must demonstrate the following elements: (1) the appellant appealed within six months after the judgment was rendered; (2) the appellant was a party to the suit; (3) the appellant did not participate in the actual trial of the case; and (4) error appears on the face of the record.   See Tex. R. App. P. 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999).  Because the parties do not dispute that the first three elements of a restricted appeal have been met, we address whether error appears on the face of the record.

Thrifty makes two arguments in support of its claim of defective service.  In its first argument, Thrifty contends service of process was defective because the citation and return are not consistent.  In its second argument, Thrifty contends service was defective because the appellate record does not contain a certificate from the Secretary of State affirmatively showing that the Secretary of State forwarded a copy of the petition to Thrifty.^[2]

II. The Citation and Return are Consistent

In its first argument, Thrifty contends the citation and return are not consistent because the citation purports to serve Manoocher Babaahmadi at Thrifty=s registered office, and the return purports to serve Thrifty through the Secretary of State.  Thrifty does not claim it was improperly named in Plaintiff=s First Amended Original Petition, the citation, or the return.

In reviewing a default judgment, there is no presumption in favor of valid issuance of service of process.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); N. C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 717 (Tex. App.CAustin 2003, pet. denied).  In order for a default judgment to withstand direct attack, strict compliance with the rules of service of citation must affirmatively appear on the record.  Whitworth, 124 S.W.3d at 718.  Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Id.  Texas Rule of Civil Procedure 107 provides that A[t]he return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person.@  Tex. R. Civ. P. 107.  The recitations in the return are prima facie evidence of the facts recited in the return.  Primate Constr., Inc., 884 S.W.2d at 152.     

In this case, contrary to Thrifty=s contention, the citation is directed ATo: Bank Repossessed Car Co., a Corporation Doing Business as Thrifty Car Sales Incorporated by the Secretary of State of the State of Texas.@  The citation also recites Thrifty=s address in the following manner: ADefs. Adrs: Manoocher Babaahmadi, at the Registered Office, 7723 Moonmist, Houston, TX 77036.@^[3]  The name of Thrifty=s registered agent and the address of Thrifty=s registered office were included in the citation to aid the Secretary of State in attempting service upon Thrifty by certified mail, which it did.^[4] The language of the citation directs service upon Thrifty Aby the Secretary of State of the State of Texas.@  The officer=s return provides that copies of the petition and citation were delivered to Thrifty Aby delivering to Roger Williams, Secretary of State of the State of Texas, at 1019 Brazos Street, Austin, Texas, 78701, by delivering to LORENA BERNAL designated agent for service for the Secretary of State . . . .@

Who=s Calling=s First Amended Original Petition alleges:

The Defendant corporation, a Texas domestic corporation, a corporation for profit and subject to the provisions of the Texas Business Corporation Act, incorporated by Articles of Incorporation issued by the Secretary of State of the State of Texas, may be served with citation pursuant to Section B of said Article 2.11, by reason of the following premises.  The Defendant corporation has failed to maintain a Registered Agent in the State of Texas.  The Defendant=s Registered Agent cannot, with reasonable diligence, be found at the Registered Office. Therefore, the Secretary of State of the State of Texas is an agent for the Defendant corporation and process may be served upon the Secretary of State of Texas as agent for the Defendant corporation.^[5]

Our review of the papers on file with the trial court at the time it entered the default judgment against Thrifty, including the amended petition, citation, and return, clearly reflects that the amended petition and citation were served upon Thrifty through the Secretary of State, which was identified as Thrifty=s registered agent.  See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 884B85 (Tex. 1985) (holding the name of the agent for service of process alleged in plaintiff=s petition must match the name of the agent upon who process was served as reflected in the return).  We overrule Thrifty=s argument that error appears on the face of the record because the citation and return are not consistent.

III. A Certificate From the Secretary of State is Part of the Appellate Record

In its second argument, Thrifty claims service was defective because the record does not contain a certificate from the Secretary of State showing that the Secretary of State forwarded a copy of the process to Thrifty.  See Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973) (holding a showing in the record that the Secretary of State forwarded a copy of the process is essential to establish the court=s jurisdiction).  The supplemental clerk=s record filed in this court on March 16, 2007 contains a certificate issued by the Secretary of State on May 17, 2005.  The certificate provides that a copy of the citation and Plaintiff=s First Amended Original Petition were received by the Secretary of State and forwarded, by certified mail, to Bank Repossessed Car Co., Manoocher Babaahmadi, 7723 Moonmist, Houston, TX 77036.  The certificate further provides, AThe PROCESS was returned to this office on May 16, 2005, bearing the notation Attempted - Not Known.@ Because the record contains a certificate from the Secretary of State affirmatively showing that the Secretary of State forwarded a copy of the process to Thrifty, we conclude error is not apparent on the face of the record and overrule appellant=s second argument. 

Appellant=s first issue is overruled.

Conclusion

Having considered and overruled appellant=s single issue on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed September 4, 2007.

Panel consists of Justices Anderson, Fowler, and Seymore.

---

^[1]  Article 2.11(B) provides:

Whenever a corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. . . .

Tex. Bus. Corp. Act Ann. art. 2.11(B). In its First Amended Original Petition, Who=s Calling alleges Thrifty=s registered agent cannot, with reasonable diligence, be found at the registered office.  Thrifty makes no arguments on appeal regarding the use of reasonable diligence by Who=s Calling.

^[2]  Such a certificate from the Secretary of State is known as a AWhitney certificate@ based on the style of the case in which the Texas Supreme Court first held such a certificate was necessary.  See Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973); Harvestons Securities, Inc. v. Narnia Inv., Ltd., 218 S.W.3d 126, 131 n.6 (Tex. App.CHouston [14th Dist.] 2007, pet. filed).

^[3]   Thrifty=s registered agent is Manoocher Babaahmadi.  Thrifty=s registered office is located at 7723 Moonmist, Houston, TX 77036.

^[4]  A certificate issued by the Secretary of State on May 17, 2005 provides that a copy of the citation and Plaintiff=s First Amended Original petition was received by the Secretary of State and forwarded, by certified mail, to ABank Repossessed Car Co., Manoocher Babaahmadi, 7723 Moonmist, Houston, TX 77036.@

^[5]  In the context of a no-answer default judgment, these factual statements in the amended petition are deemed admitted. Holt Atherton Indus. v. Heine 835 S.W.2d 80, 83 (Tex. 1992).