Buc-Ee's, LTD. v. David DeGroot ( 2023 )

NUMBER 13-23-00084-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BUC-EE’S LTD., Appellant,
v.
DAVID DEGROOT, Appellee.
On appeal from the County Court at Law No. 9
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Silva
In this restricted appeal, appellant Buc-ee’s Ltd. appeals a no-answer default
judgment awarding appellee David DeGroot $70,000 in damages. In five issues, appellant
argues (1) the record does not show strict compliance with the rules of service;
(2) appellee failed to plead and provide prima facie proof that venue in Hidalgo County
was proper; (3) the trial court improperly awarded the recovery of attorney’s fees; (4) there
is no evidence to support the trial court’s award for medical expenses incurred and to be
incurred in the future; and (5) the record did not contain sufficient evidence to warrant an
award for commercial damages. For reasons set out below, we agree that service was
invalid. Accordingly, we reverse and remand.
I. BACKGROUND
On August 26, 2022, appellee filed suit against appellant, alleging a negligence
cause of action after he broke his dental crown when he bit down on roasted almonds
purchased at a Buc-ee’s convenience store in Bastrop County. The petition identified Buc-
ee’s as the defendant, “a domestic corporation in the state of Texas [which] may be
served through its attorney of record, H. Tracy Johnson, III, at 11200 Broadway, Suite
2332, Pearland, Texas 77584.”
Citation was issued via certified mail to “BUC-EE’S LTD., ATTORNEY OF
RECORD: H. TRACY JOHNSON III” at 11200 Broadway, Suite 2332, Pearland, Texas
on September 2, 2022. The signed civil processor’s return filed with the Hidalgo County
Clerk on October 12, 2022, contained the following notation: “green return card was never
returned.”
Nearly two months later, appellee moved for entry of default judgment. On January
26, 2023, the trial court signed an order granting default judgment and awarding appellee
$70,000 plus post-judgment interest and attorney’s fees. On February 27, 2023, appellant
filed this restricted appeal. See TEX. R. APP. P. 30.
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II. RESTRICTED APPEAL
A restricted appeal is a direct attack on the trial court’s judgment. See PNS Stores,
Inc. v. Rivera, 379 S.W.3d 267, 272–73 (Tex. 2012). To prevail on a restricted appeal, an
appellant must demonstrate:
(1) he filed notice of the restricted appeal within six months after the
judgment was signed;
(2) he was a party to the underlying lawsuit;
(3) he did not participate in the hearing that resulted in the judgment
complained of, and did not timely file any post-judgment motions or
requests for findings of fact and conclusions of law; and
(4) error is apparent on the face of the record.
Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (citing Pike-Grant v. Grant, 447 S.W.3d
884, 886 (Tex. 2014) (per curiam)); see TEX. R. APP. P. 30. “For these purposes, the ‘face
of the record’ consists of all the papers that were before the trial court at the time it
rendered judgment.” Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi–
Edinburg 2016, no pet.). “The requirement that error be apparent on the face of the record
means that ‘error that is merely inferred [from the record] will not suffice.’” Id. (quoting
Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam) (alteration in original)).
There is no dispute that appellant established the first three elements. See id.Thus, the only remaining issue is whether appellant has demonstrated that any of the
complained-of errors are apparent from the face of the record. See TEX. R. APP. P. 30;
Eguia v. Eguia, 367 S.W.3d 455, 459 (Tex. App.—Corpus Christi–Edinburg 2012, no
pet.).
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III. SERVICE
Appellant first argues appellee failed to comply with service requirements, and
such error is apparent from the record.
“There are no presumptions in favor of valid issuance, service, and return of
citation in the face of a [direct] attack on a default judgment.” WWLC Inv., L.P. v. Miraki,
624 S.W.3d 796, 799 (Tex. 2021) (per curiam) (quoting Primate Constr., Inc. v. Silver,
884 S.W.2d 151, 152 (Tex. 1994) (per curiam)). If the record does not show strict
compliance with the rules governing citation and return of service, then service is invalid
and in personam jurisdiction cannot be established. See Guardianship of Fairley, 650
S.W.3d 372, 380 (Tex. 2022) (“[T]he plaintiff must validly invoke that jurisdiction by valid
service of process on the defendant.”). Even actual notice to a defendant is insufficient to
convey jurisdiction on the trial court and will not cure defective service. Hubicki v. Festina,
226 S.W.3d 405, 408 (Tex. 2007) (per curiam) (citing Wilson v. Dunn, 800 S.W.2d 833,
836 (Tex. 1990)); see Pro-Fire & Sprinkler, L.L.C. v. The Law Co., Inc., 661 S.W.3d 156,
162 (Tex. App.—Dallas 2021, no pet.) (“The Supreme Court of Texas has reiterated that
it construes strict compliance to mean just that.”) (cleaned up); see also Inv. Ideas, Inc.
v. Ellekay, LLC, No. 13-10-208-CV, 2010 WL 4657953, at *2 (Tex. App.—Corpus Christi–
Edinburg Nov. 18, 2010, no pet.) (mem. op.) (“Virtually any deviation from the statutory
requisites for service of process will destroy a default judgment.”). Whether service strictly
complies is a question of law we review de novo. Turbo Rests., LLC v. Reid’s
Refrigeration Inc., 657 S.W.3d 490, 495 (Tex. App.—El Paso 2022, no pet.).
“[S]ervice on a limited partnership may be made on its general partner or registered
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agent.” Miraki, 624 S.W.3d at 799 (citing TEX. BUS. ORGS. CODE ANN. §§ 5.201(b)(1),
5.255(2)). “Service on a limited partnership, unlike a corporation, is not authorized to be
made through an officer.” Id. at 800 (citing TEX. BUS. ORGS. CODE ANN. § 5.255(1)–(2)).
Moreover, return of service rules require that “[w]hen the citation was served by registered
or certified mail, . . . the return by the officer or authorized person must also contain the
return receipt with the addressee’s signature.” TEX. R. CIV. P. 107(c); Sw. Sec. Servs.,
Inc. v. Gamboa, 172 S.W.3d 90, 92 (Tex. App.—El Paso 2005, no pet.). Rule 107 requires
a showing of the connection between the person signing for the process and the actual
addressee. See Asset Prot. & Sec. Servs., L.P. v. Armijo, 570 S.W.3d 377, 383 (Tex.
App.—El Paso 2019, no pet.); see also Alamo Home Fin., Inc. v. Duran, No. 13-14-00462-
CV, 2015 WL 4381091, at *5 (Tex. App.—Corpus Christi–Edinburg July 16, 2015, no pet.)
(mem op.).
Here, the face of the record shows that appellee filed suit against “Buc-ee’s Ltd.,”
and the return of service states that “ATTORNEY OF RECORD: H. TRACY JOHNSON
III” 1 was served via certified mail. However, the civil processor’s return does not indicate
Johnson’s capacity to receive service on behalf of appellant—that is, whether Johnson
was an authorized agent of the addressee for service of process—or that Johnson was,
in fact, the recipient of the mailed service. This alone renders service defective. See Turbo
Rests., 657 S.W.3d at 498–501 (finding that service was invalid where it was not possible
1 On appeal, appellant notes that its registered agent listed as the agent for service of process with
the Texas Secretary of State is CT Corporation; “the individual identified as the attorney of record [in
appellee’s service return] is a fictitious person, as there is no attorney who has represented [a]ppellant
named H. Tracy Johnson, III”; and “[a] search of the Texas State Bar website names only one individual”
by that name licensed to practice in the State, and he is located in Dallas—not Pearland.
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to determine from the record whether the individual who accepted service was authorized
to do so on behalf of the company); Reed Elsevier, Inc. v. Carrollton-Farmers Branch
Indep. Sch. Dist., 180 S.W.3d 903, 905 (Tex. App.—Dallas 2005, pet. denied) (concluding
that a return that did not indicate the capacity of the person served or explain that person’s
authority to receive service as a registered agent rendered service invalid); see also
Paving & Seal Pro v. McConnell Cars & RV, LLC, No. 04-16-00518-CV, 2017 WL
2350973, at *2 (Tex. App.—San Antonio May 31, 2017, no pet.) (mem. op.) (same);
MYRMAC Corp. v. P.H., No. 02-16-00319-CV, 2017 WL 1173841, at *2 (Tex. App.—Fort
Worth Mar. 30, 2017, no pet.) (mem. op.) (same).
Moreover, a return receipt, i.e., “green card” does not appear in the record, and a
postal tracking document attached to appellee’s motion for default judgment indicates
only that an “item was delivered to the front desk, reception area, or mail room at 2:39 pm
on September 2, 2022[,] in PEARLAND, TX 77584”—making no mention of precisely who
the individual recipient was and containing no recipient signature. In other words, on its
face, the record shows that the return receipt was not signed by the intended addressee
or by a registered agent. Cf. TEX. R. CIV. P. 107(c); see Gamboa, 172 S.W.3d at 92(concluding that service of process by certified mail was defective where the return receipt
was not signed by the addressee); see also HWAT, Inc. v. Agnew, No. 02-20-00301-CV,
2021 WL 1229960, at *4 (Tex. App.—Fort Worth Apr. 1, 2021, no pet.) (mem. op.) (“A
green card’s failure to connect the person signing the green card with the entity being
served makes service defective on its face.”); Ny-Mac Enters., Inc. v. Orr, No. 06-18-
00005-CV, 2018 WL 2436350, at *2 (Tex. App.—Texarkana May 31, 2018, no pet.) (mem.
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op.) (concluding that service was defective where “both the ‘Agent’ and ‘Addressee’ boxes
were left unchecked on the green card, [and] the record does not indicate [the service
recipient’s] connection, if any, with InCorp Services, Inc.”); Duran, 2015 WL 4381091, at
*5 (“In addition, the return of receipt is signed, illegibly, by a Veronica Cordell. Both the
‘agent’ and ‘addressee’ boxes are left unchecked. Nowhere in the record is there any
indication as to what connection Cordell has to Alamo. The record, on its face, shows that
the return was not signed by the addressee or agent.”).
We conclude the face of the record fails to show strict compliance with the rules
governing return of service. See TEX. BUS. ORGS. CODE ANN. §§ 5.201(b)(1), 5.255(2);
TEX. R. CIV. P. 107(c). Thus, the trial court lacked jurisdiction to render a default judgment
against appellant. See Guardianship of Fairley, 650 S.W.3d at 380. We sustain
appellant’s first issue, and our resolution of this issue makes it unnecessary to address
appellant’s remaining issues. See TEX. R. APP. P. 47.1.
IV. CONCLUSION
We reverse the trial court’s order granting default judgment and remand the cause
to the trial court for further proceedings.
CLARISSA SILVA
Justice
Delivered and filed on the
27th day of July, 2023.
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