Comal & Co. LLC v. Michelle Mays ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00746-CV
Comal & Co., LLC, Appellant
v.
Michelle Mays, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
NO. 2017CVA0011, HONORABLE RANDAL C. GRAY, JUDGE PRESIDING
MEMORANDUM OPINION
This is a restricted appeal from a default judgment rendered by the county court at
law of Comal County in a breach of contract and deceptive trade practices case involving a roof-
repair dispute. Appellant is Comal & Co., LLC. Appellee is Michelle Mays. This Court will vacate
the judgment.
After Comal made no appearance, the trial court rendered a default judgment for
Mays in the total sum of $22,713.56. Comal argues, in effect, that because it was not properly
served, the default judgment is void. We agree.
Mays asserts that between January and May 2017 she made several attempts to serve
Comal personally and also to serve its registered agent by certified mail. On April 17, 2017, Mays’s
process-server filed an affidavit declaring that he personally delivered the Mays citation and petition
by certified mail to Comal through its registered agent, Rory Closson, at 197 Acacia Parkway,
Spring Branch, Texas 78070. However, Comal’s registered office is not 197 Acacia Parkway;
instead, the correct address is 1597 Acacia Parkway.
In May 2017, Mays sent a copy of the citation and petition in her suit to the secretary
of state requesting service on Comal. Section 5.251(1)(B) of the Texas Business Organizations
Code provides that the secretary of state is an agent of an entity for purposes of service of process
when the registered agent of the entity cannot with reasonable diligence be found at the registered
office of the entity.
The record contains a certificate from the secretary of state’s office reciting that it
received a copy of the citation and Mays’s petition on May 10, 2017, and that such was forwarded
by certified mail to Comal’s registered agent, Rory J. Closson, at 1597 Acacia Parkway, Spring
Branch, Texas 78070. The process was returned to the secretary of state on June 9, 2017, bearing
the notation “Return to Sender, Unclaimed, Unable to Forward.”
Thereafter, Mays filed with the trial court a motion for substituted service. After
hearing, the trial court found that service of citation on Comal was accomplished by serving the
secretary of state.
When a default judgment is directly attacked by a restricted appeal, the record must
reflect strict compliance with the rules relating to the issuance, service, and return of citation.
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); McKanna v. Edgar, 388 S.W.2d 927,
929 (Tex. 1965). In restricted appeals, there are no presumptions in favor of valid issuance, service,
and return of citation. Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573
(Tex. 2006).
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Mays asserts, and the trial court found after hearing, that “service of citation was
accomplished upon the Secretary of State on May 10, 2017.” However, the secretary of state is agent
of an entity for service of process only “if the registered agent of the entity cannot with reasonable
diligence be found at the registered office of the entity.” Tex. Bus. Orgs. Code § 5.251(1)(B)
(emphases supplied).
Here, Mays’s process-server attested to providing service by certified mail, not to
Comal’s registered office address, but instead, to a wrong address. Moreover, the process-server’s
affidavit wholly fails to state any diligence employed, reasonable or not, in attempting to locate the
registered agent at Comal’s registered office.
In an apparent effort to demonstrate global diligence, Mays states in her brief that
her attorney unsuccessfully requested opposing counsel to waive service of citation. She also asserts
that she attempted personal service twice upon Comal. But to support a default judgment based upon
substituted service pursuant to section 5.251(1)(B), the record must show that reasonable diligence
was used in seeking service on the registered agent of the entity at its registered office. See RWL
Constr., Inc. v. Erickson, 877 S.W.2d 449, 451 (Tex. App.—Houston [1st Dist.] 1994, no writ);
General Office Outfitters, Inc. v. Holt, 670 S.W.2d 748, 749 (Tex. App.—Dallas 1984, no writ).
Because the attempted service of citation upon Comal is invalid and of no effect,
the trial court acquired no personal jurisdiction over Comal and the default judgment is void.
The default judgment is vacated and the cause is remanded to the trial court for
further proceedings. See Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W.3d 848, 851 (Tex. 2007)
(per curiam) (vacating default judgment and remanding for further proceedings).
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__________________________________________
Bob E. Shannon, Justice
Before Justices Goodwin, Field, and Shannon*
Vacated and Remanded
Filed: June 12, 2018
* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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