Brown Consulting and Associates, Inc. v. Smith, Karen ( 2013 )

REVERSE and REMAND; and Opinion Filed May 28, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00543-CV
BROWN CONSULTING AND ASSOCIATES, INC. AND A LEARNING CENTER JUST
FOR ME, INC., Appellants
V.
KAREN SMITH, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-06500
MEMORANDUM OPINION
Before Justices Lang-Miers, Murphy, and Fillmore
Opinion by Justice Fillmore
Brown Consulting and Associates, Inc. (Brown Consulting) and A Learning Center Just
For Me, Inc. (Learning Center) appeal a no-answer default judgment in favor of Karen Smith. In
four issues, Brown Consulting and Learning Center generally contend: (1) the judgment is void
because they were not properly served; (2) the trial court erred by denying their motion for new
trial; (3) Smith failed to plead facts imposing a duty of care on Brown Consulting; and (4) the
evidence is factually insufficient to support the damage award. We resolve Brown Consulting
and Learning Center’s first issue in their favor, reverse the trial court’s default judgment, and
remand for further proceedings consistent with this opinion. We issue a memorandum opinion in
this case because the law to be applied is well settled. See TEX. R. APP. P. 47.2(a), 47.4.
Background
In her original petition, Smith alleges she was employed by Learning Center as an
habilitator working with mentally challenged clients. In an incident that occurred at work, a
client she was helping stand from a seated position “jerked” Smith’s arm, causing Smith to lose
her balance and hit her head on a paved roadway. Smith lost consciousness and sustained
injuries to her head, neck, left knee, and back.
In June 2011, Smith sued Brown Consultants and Associates, Inc. (Brown Consultants)
and Learning Center for negligence. In August 2011, Smith filed an unsworn motion for
substitute service of process on Brown Consultants and Learning Center, stating Brown
Consultants and Learning Center’s principal place of business is in Dallas County, Texas, and
they may be served with citation through their registered agent, Bettina L. Brown at their
“registered address,” 101 S.W. Dallas Street, Grand Prairie, Texas. 1 In her motion, Smith
requested that the trial court authorize her to serve Brown Consultants and Learning Center “by
leaving a true copy of the citation and attached petition with anyone more than sixteen years of
age, or posting the citation and attached petition to the front door or gate, at Defendants’
registered address” at 101 S.W. Dallas Street, Grand Prairie, Texas. Smith submitted the
affidavit of private process server John P. Davis in support of the motion for substitute service of
process. In the affidavit, Davis attested he received “a” citation for Brown Consultants and
Learning Center “to be delivered to its registered agent Bettina Brown . . . at 101 SW Dallas Ave
Grand Prairie, Texas.” Davis stated he had attempted to call and serve Bettina Brown but had
been unable to obtain service. After considering the motion for substitute service of process and
the supporting affidavit, the trial court signed an order authorizing substituted service on Brown
1
Smith’s motion for substitute service of process refers twice to defendant “Brown Consultants and Associates, Inc.”; however, in the
caption of the motion, this defendant is referred to as “Brown Consulting and Associates, Inc.”
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Consulting and Learning Center “by leaving the citation and attached Original Petition with any
person more than 16 years old, or posting the citation and attached Petition to the front door or
gate, at 101 S.W. Dallas St, Grand Prairie, Texas 75051 in accordance with rule 106(b)(1).”
Returns of service on Brown Consultants and Learning Center were filed by the process
server. The return of service on Brown Consultants indicates service was executed by delivering
the citation and petition to “Brown Consultants and Associates Inc. c/o Bettina Brown via Rule
106 order by leaving with receptionist.” The return of service on Learning Center indicates
service was executed by delivering the citation and petition to “Bettina L. Brown via Rule 106
order by leaving with receptionist.”
Thereafter, Smith filed a motion for a no-answer default judgment against Brown
Consulting and Learning Center. After considering Smith’s testimony and other evidence, the
trial court signed a default judgment against Brown Consulting and Learning Center and
awarding Smith $350,000. Brown Consultants and Learning Center filed a motion for new trial
which was overruled by operation of law. This appeal followed. 2
Discussion
In their first issue, Brown Consulting and Learning Center contend the judgment is void
because defects in service prevented the trial court from acquiring personal jurisdiction over
them. Specifically, they contend the affidavit in support of the motion for substitute service of
process did not comply with the requirements of rule 106(b) of the Texas Rules of Civil
Procedure because the affidavit fails to contain evidence that Brown Consulting’s or Learning
Center’s registered agent could probably be found at the address served, or that the address was
2
No issue has been raised on appeal relating to the inconsistent use of the names Brown Consulting and Brown Consultants in the trial
court record to refer, apparently, to the same entity. For example, in her Original Petition and Request for Disclosure, Smith sued “Brown
Consultants and Associates, Inc.,” yet the trial court’s Final Judgment granted default judgment against “Brown Consulting and Associates, Inc.”
Indeed, this defendant has inconsistently identified itself. For example, Defendants’ Motion for New Trial was filed on behalf of “Brown
Consultants and Associates, Inc.,” while the notice of appeal was filed on behalf of “Brown Consulting and Associates, Inc.” Because no issue
has been raised on appeal concerning this disparity, we will assume references in the record to Brown Consulting and Brown Consultants are
references to the same entity.
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the usual place of business or usual abode of Brown Consulting, Learning Center, or the
registered agent for these businesses. After reviewing the affidavit, we agree.
Before a trial court may properly render a default judgment, the record must reflect the
trial court has jurisdiction over the subject matter and the parties and the case is ripe for
judgment. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968); Marrot Commc’ns, Inc. v. Town &
Country P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
When, as here, a defendant has not answered, a trial court acquires jurisdiction over that
defendant solely on proof of proper service. See TEX. R. CIV. P. 107(h) (prohibiting default
judgment unless proof of proper service and return have been on file for ten days). The trial
court does not have in personam jurisdiction to render a default judgment against the defendant
unless the record affirmatively shows, at the time the default judgment is entered, either an
appearance by the defendant, proper service of citation on the defendant, or a written
memorandum of waiver. Marrot Commc’ns, 227 S.W.3d at 376.
Texas Rule of Civil Procedure 106 allows the trial court to sign an order authorizing a
substitute method of service of process, provided the plaintiff files a motion supported by proper
affidavit. TEX. R. CIV. P. 106(b); Wilson v. Dunn, 800 S.W.2d 833, 834 (Tex. 1990). The
supporting affidavit must state (1) the location of the defendant’s usual place of business or usual
place of abode or other place where the defendant can probably be found; and (2) the specific
facts showing that traditional service at the location named in such affidavit has been attempted,
but has not been successful. TEX. R. CIV. P. 106(b). Failure to affirmatively show strict
compliance with this rule renders the attempted service of process invalid and of no effect.
Garrels v. Wales Transp., 706 S.W.2d 757, 758 (Tex. App.—Dallas 1986, no pet.); see also
Wilson, 800 S.W.2d at 836 (“Actual notice to a defendant, without proper service, is not
sufficient to convey upon the court jurisdiction to render default judgment against him.”). There
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are no presumptions favoring valid issuance, service, and return of citation in the face of a direct
attack on a default judgment. Wilson, 800 S.W.2d at 836 (quoting Uvalde Country Club v.
Martin Linen Supply, Co., 690 S.W.2d 884, 886 (Tex. 1985) (per curiam)).
Here, the affidavit in support of the rule 106(b) motion for substitute service of process
states that Davis received “a” citation for Brown Consultants and Learning Center to be
delivered to “registered agent Bettina Brown . . . to be delivered at 101 SW Dallas Ave Grand
Prairie, Texas.” The affidavit then lists the efforts Davis made to deliver the citation to Bettina
Brown. The affidavit concludes with Davis’s statement that he made diligent efforts to serve the
citation, but believed service could not be obtained without the benefit of a court order as
allowed in rule 106 of the rules of civil procedure. The affidavit does not contain a statement
that the address 101 S.W. Dallas Ave., Grand Prairie, Texas was the usual place of business or
usual place of abode of either defendant or the registered agent. Nor does the affidavit contain a
statement that the address is a place where the registered agent could probably be found.
Consequently, we agree with Brown Consulting and Learning Center that the affidavit does not
strictly comply with the requirements of rule 106(b).
In reaching this conclusion, we necessarily reject Smith’s contention that although the
affidavit does not use the words “usual place of business” or “usual place of abode” to describe
the listed address, the affidavit is sufficient to comply with rule 106(b). Smith argues that the
phrase “usual place of business” is not required as long as the affidavit contains sufficient
evidence that the address for service is the usual place of business, usual place of abode, or other
place where the defendant can be found. Smith does not explain, nor do we see, how the
affidavit does so. Although the affidavit does show when Davis arrived at the address for service
“her office” told Davis that Bettina Brown was not there, this does not show the address for
service was Bettina Brown’s usual place of business. A person may have more than one office.
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Further, even assuming we could conclude the statement in the affidavit regarding Bettina
Brown’s office somehow showed this was a usual place of business, the affidavit does not
indicate which of the businesses to be served, or whether both of the businesses to be served,
conducted business from the stated address.
Rule 106(b) requires that an affidavit in support of a motion for substitute service of
process contain information indicating the location for service is the usual place of business,
usual place of abode, or other place where the defendant could be found. See TEX. R. CIV. P.
106(b). In Garrels, a constable’s affidavit stated he attempted service at a certain location on
multiple occasions. Although the unsworn motion for substitute service of process indicated that
the location was the defendant’s usual place of abode, the constable’s affidavit did not. Garrels,
706 S.W.2d at 759. Reasoning that the unsworn motion was not evidence, this Court concluded
service was defective since the affidavit was insufficient. Id. This Court stated that before the
trial court may order substituted service under rule 106, “there must be evidence of probative
value that the location stated in the affidavit is the defendant’s usual place of business or usual
place of abode or other place where the defendant can probably be found.” Id.; see also Williams
v. Nexplore Corp., No. 05-09-00621-CV, 2010 WL 4945364, at *2, 3 (Tex. App.—Dallas Dec.
7, 2010, pet. denied) (mem. op.) (failure to affirmatively show strict compliance with rule 106(b)
renders attempted substituted service of process invalid and of no effect); Olympia Marble &
Granite v. Mayes, 17 S.W.3d 437, 444 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (op. on
r’hrg) (concluding rule 106(b) requires that supporting affidavit include statement that location
of attempted service is defendant’s usual place of business or usual place of abode or other place
he can probably be found).
Given our obligation to “rigidly enforce rules governing service when a default judgment
is entered,” Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam), we cannot
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conclude Davis’s affidavit shows strict compliance with rule 106(b). Because the record does
not show strict compliance with the rules for substitute service of process, we resolve Brown
Consulting and Learning Center’s first issue in their favor. Having done so, we need not address
their remaining issues. See TEX. R. APP. P. 47.1; see also Nexplore Corp., 2010 WL 4945364,
at *2, 3 (appellate court need not address whether trial court erred by denying motion for new
trial because determination that trial court lacked personal jurisdiction over defendant was
dispositive of appeal). Accordingly, we reverse the trial court’s default judgment and remand to
the trial court for further proceedings.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
120543F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BROWN CONSULTING AND On Appeal from the 193rd Judicial District
ASSOCIATES, INC. and A LEARNING Court, Dallas County, Texas
CENTER JUST FOR ME, INC., Appellants Trial Court Cause No. DC-11-06500.
Opinion delivered by Justice Fillmore,
No. 05-12-00543-CV V. Justices Lang-Miers and Murphy
participating.
KAREN SMITH, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
It is ORDERED that appellants Brown Consulting and Associates, Inc. and A Learning
Center Just for Me, Inc. recover their costs of this appeal from appellee Karen Smith.
Judgment entered this 28th day of May, 2013.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
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