Bailey's Furniture, Inc. v. Graham-Rutledge & Company ( 2012 )

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REVERSE and REMAND; Opinion Filed l)ecember 13, 2012
In The
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No.05-11-0071 0-CV
BAILEY’S FURNITURE, INC., Appellant
V.
GRAHAM-RUTLEDGE & COMPANY, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC11-02523-J
MEMORANDUM OPINION
Before Justices O’Neill, Francis, and Murphy
Opinion by Justice Francis
Bailey’s Furniture, Inc. appeals a no-answer default judgment against it in a breach of
contract suit brought by Graham-Rutledge & Company. In two issues, Bailey’s argues the trial
court lacked personal jurisdiction to render the default judgment because service of process was
defective and, alternatively, the trial court abused its discretion in denying its motion for new
trial. Because we agree that service was defective, we reverse the trial court’s judgment and
remand for further proceedings.
Graham-Rutledge alleged it had an exclusive listing agreement with Bailey’s to market a
commercial property in Dallas and that Bailey’s sold the property without paying the real estate
commission provided br in the agreement. Graham—Rutledge sued Bailey’s and two parties ‘ho
represented the buyer of the property. The petition alleged that l3ailev’s could be served by
serving its registered agent, Charles Bailey. at 3910 West Camp Wisdom Road. Dallas, Texas,
75237-2425. After making four unsuccessful attempts at service, Graham-Rutledge filed a
motion for substituted service supported by the affidavit of the process server. Brandon
Parraway. In his affidavit, Parraway asserted the following:
“On JULY 28TH, 2010. 1 received the PLAINTIFF’S
ORIGINAL PETITION, attached. for service upon Defendant.
CHARLES BAILEY, 3910 WEST CAMP WISDOM ROAD,
DALLAS, TX, 75237, which is Defendant’s usual place of
abode/business, and/or a place where Defendant can he found.”
Thereafter, Parraway described his four unsuccessful attempts to execute service of
process. The affidavit then provided:
“No further attempts at delivery of process v-crc conducted by me.
and there has been no contact with/from Defendant. CHARLES
BAILEY.
“1 believe further attempts to serve Defendant. CHARLES
BAILEY, by personal delivery would be unsuccessful and
substituted service would be reasonably effective in giving
Defendant, CHARLES BAILEY, notice of this suit by delivering
the PLAINTIFF’S ORIGINAL PETITION, attached at the
address identified as, CHARLES BAILEY, 3910 WEST CAMP
WISDOM ROAD, DALLAS, TX, 75237. By serving anyone
over the age of sixteen years old living/employed at the above
mentioned residence/business, or;
2. By properly affixing to the front entranceway/front gatepost of
the above mentioned residence/usual place of business.
The trial court granted the motion and signed an order authorizing that Bailey’s be served
by “affixing the citation, original petition, and order on the front door of the place of business of
Bailey’s Furniture located at 391 0 West (‘amp Wisdom Road. Dallas. Texas 73237.” Parra\ av
executed a return of service showing that he affixed the citation. original petition. discovery, and
order on motion for substituted service “on the front door of the place of business of Bailey’s
Furniture, Inc.” located at the West Camp Wisdom road address.
For reasons not necessary to this appeal. Bailey’s did not tile an answer. The trial court
then rendered an interlocutory default judgment against Bailey’s and awarded Graham—Rutledge
$48,238.98 for the breach of contract and $1950 in attorney’s fees. Bailey’s flied a motion for
new trial arguing service of process was defective. The trial court denied the motion and then
severed the case against Bailey’s. making the default judgment against it final After the
severance. Bailey’s filed an amended motion fbr nev trial, which was denied. This appeal
ensued.
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. unlay v. .Jones. 435 S.W.2d 136, 138 (Tex. 1968): TJai’rot Cominc ‘ns, Inc. v. 101112 &
Counlrv P ‘ship. 227 S.W.3d 372. 376 (Tex. App.—llouston [1st Dist.1 2007. pet. denied).
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 personarn jurisdiction to render a default judgment against the
defendant . Marrol Coinmc ‘us. 227 S.W.3d at 376. Even actual notice to a defendant after
defective service is “not sufficient to convey upon the court jurisdiction to render default
judgment against him.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
Texas Rule of Civil Procedure 1 06 allows the trial court to sign an order authorizing a
substitute method of service, provided the plaintiff files a motion supported by proper affidavit.
Lx. R. Civ. P. 106(h: S/u/c Ith,n i7rc’ & ( as ( u. . Cost/er. 868 S.W.2d 298. 298—99 (1 cx.
1 993) (per curiarn). 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 thcts showing that traditional service has been attempted “at the
location named in such aflidavit hut has not been successful.” TEx. R. Civ. P. 106(b). Failure to
affirinativelv show strict compliance with this rule renders the attempted service of process
invalid and of no effect. Wi/son, 800 S.W.2d at 836. There are no presumptions favoring valid
issuance, service, and return of citation in the face of a direct attack on a default judgment. Id.
Here. service was sought upon Bailey’s Furniture, but the affidavit upon which the trial
court based its decision to order substituted service identified the defendant as Charles Bailey.
We recognize the petition alleged Charles Bailey is the registered agent of the defendant, but the
affidavit does not identify Charles Bailey as the registered agent. Because the affidavit
misidentifies the defendant. it fails to establish the necessary factors under rule 106(b) with
respect to Bailey’s. Under these circumstances, we conclude Bailey’s was not served in strict
compliance with rule 106(b) because substituted service not properly authorized by the
affidavit relied upon by the trial court. Without proper service, the trial court never obtained
personal jurisdiction over Bailey’s and the default judgment against it is void. Given our
disposition of this issue. we need not address Bailey’s second issue. See TEx. R. App. P. 47.1.
We reverse the trial court’s judgment and remand for further proceedings consistent with
this opinion.
OLLY NCIS
JUSTICE
1 lO7lOF.P05
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JUDGMENT
BAILEY’S FURNITURE, INC.. Appeal from the 19 1st Judicial District
Appellant Court of Dallas County, Texas (Trial Court
No. DCI l-02523-J).
No. 05-1 l-00710-CV V. Opinion delivered by Justice Francis;
Justices O’Neill and Murphy participating.
GRAHAM-RUTLEDGE & COMPANY.
Appellee
Based on the Courts opinion of this date, we REVERSE the trial court’s judgment and
REMANI) the cause to the trial court fbr further proceedings consistent with the opinion. We
ORDER that appellant Bailey’s Furniture, Inc. recover its costs of this appeal from appellee
Graham-Rutledge & Company.
Judgment entered December 13. 2012.
MOLLY NC1S