Olivia Flores v. Sonic Automotive of Texas, L.P., D/B/A Lone Star Ford ( 2013 )

Affirmed and Memorandum Opinion filed October 24, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00722-CV
OLIVIA FLORES, Appellant
V.
SONIC AUTOMOTIVE OF TEXAS, L.P., D/B/A LONE STAR FORD,
Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2011-49073
MEMORANDUM OPINION
Olivia Flores appeals a summary judgment granted in favor of Sonic
Automotive of Texas, L.P., d/b/a Lone Star Ford (“Sonic Automotive”). In
multiple issues, we must determine whether the trial court erred by granting a bill
of review, and whether summary judgment was appropriate on the basis of
limitations. We affirm.
BACKGROUND
On or before August 13, 2007, Flores claims that she slipped and fell while
shopping at a Houston-area car dealership. The dealership is owned and operated
by Sonic Automotive, which does business under the name “Lone Star Ford.”
Flores filed an original petition on August 12, 2009, seeking damages for the
injuries she allegedly sustained. The sole defendant named in her petition was a
defunct corporation, “Lone Star Ford, Inc,” which has been dissolved in Texas
since 2001. On August 27, 2009, Flores served this defunct corporation through its
former registered agent, C.T. Corporation System.
On September 14, 2009, Flores filed a supplemental petition, naming Sonic
Automotive as a defendant in the suit. References to Sonic Automotive are varied
in this subsequent pleading. In the style of her petition, Flores depicts Lone Star
Ford, Inc and Sonic Automotive as separate and distinct legal entities. These
entities are also listed as separate defendants in the “Parties and Service” section of
her petition, though both are described as having the same registered agent. In the
body of her petition, Flores depicts the two entities as a single party, “Defendant
Lone Star Ford, Inc., a/k/a Sonic Automotive of Texas, L.P., d/b/a Lone Star
Ford.” Following the filing of Flores’s supplemental petition, the Harris County
district clerk issued a new citation describing the defendant using this collective
designation. The citation was addressed specifically to “LONE STAR FORD INC
(A/K/A SONIC AUTOMOTIVE OF TEXAS L P D/B/A LONE STAR FORD) BY
SERVING ITS REGISTERED AGENT C T CORPORATION SYSTEM.”
The second citation was delivered to the registered agent on September 29,
2009. That same day, the registered agent notified Flores by letter that it could not
effectuate service on Lone Star Ford, Inc. The registered agent explained that it had
previously discontinued services to Lone Star Ford, Inc; that the corporation
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remained inactive on state records; and that there was no known forwarding
address for the corporation. The citation and petition were accordingly returned to
Flores. The letter does not mention Sonic Automotive by name, nor does the letter
state that process was ever forwarded to Sonic Automotive separately.
On March 24, 2010, the trial court entered a no-answer default judgment
against Sonic Automotive. Though named in both the petition and the citation, the
defunct Lone Star Ford, Inc was not included in the default judgment.1
Sonic Automotive first learned of the default judgment on August 16, 2011,
when Flores attempted to seize the company’s property with a writ of execution.
On August 18, Sonic Automotive filed a petition for bill of review, seeking to set
aside the default judgment on due process grounds. Sonic Automotive argued that
it had not been served and that judgment was rendered against a party not
specifically named in the citation.
The trial court granted summary judgment to Sonic Automotive on its bill of
review. With the parties restored to their original positions, Sonic Automotive
moved for summary judgment on the underlying slip-and-fall claim, arguing that
this claim was barred by the applicable statute of limitations. The trial court
granted this motion and ordered that Flores take nothing from Sonic Automotive.
From this judgment, Flores appeals.
BILL OF REVIEW
Flores presents two related complaints in her challenge to the trial court’s
bill of review. In her first issue, she argues that Sonic Automotive failed to satisfy
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The default judgment does not appear to be final for this reason. Furthermore, the
judgment lacks any language expressly disposing of all claims and all parties. See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Because Sonic Automotive undertook the bill-
of-review procedure and prevailed, the interlocutory default judgment was effectively set aside.
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its summary judgment burden by proving non-service as a matter of law. In her
second issue, she argues that the trial court wrongfully denied her a jury trial
because she had already paid her jury fee and there was a question of material fact
as to whether Sonic Automotive had actually received service of process.
We review a trial court’s summary judgment de novo. Ferguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam); Tex. Mun.
Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). To
prevail on a traditional motion for summary judgment, the movant must show that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence
favorable to the nonmovant, indulging every reasonable inference and resolving
any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). The nonmovant has no burden to respond to a
traditional motion for summary judgment unless the movant conclusively
establishes each element of its cause of action or defense as a matter of law.
Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).
A bill of review is an independent action to set aside a judgment that is no
longer appealable or subject to a motion for new trial. Caldwell v. Barnes, 154
S.W.3d 93, 96 (Tex. 2004) (per curiam). Normally, the petitioner in a bill of
review must prove three elements: (1) that it has a meritorious defense to the
underlying cause of action; (2) that it was prevented from making this defense
because of an official mistake by a clerk or because of the fraud, accident, or
wrongful act of an opponent; and (3) that the judgment was rendered unmixed with
any fault or negligence by the petitioner. Id. When the petitioner asserts lack of
service, however, it is relieved from showing the first two elements. Id. at 96–97.
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The third and final element is conclusively established if the petitioner can prove
that it was never served with process. Id. at 97.
Personal jurisdiction, a vital component of a valid judgment, is dependent
“upon citation issued and served in a manner provided for by law.” Wilson v.
Dunn, 800 S.W.2d 833, 836 (Tex. 1990). If service is invalid or achieved through
an unauthorized procedure, it is of no effect and cannot establish the trial court’s
jurisdiction over a party. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012); Fid. &
Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 574 n.1 (Tex. 2006)
(per curiam). The procedural rules regulating service of process are mandatory, and
without a showing of strict compliance, a default judgment will not withstand a
direct attack. Tex. R. Civ. P. 124; PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 274
(Tex. 2012).
The rules of procedure require that the citation be directed to the defendant
and show the names of the parties. See Tex. R. Civ. P. 99(b)(7)–(8). There is some
confusion in the record as to whom Flores intended as the defending party (or
parties). The supplemental petition is styled in the name of two separate
defendants: Lone Star Ford, Inc and Sonic Automotive. But the body of the
petition and the citation that issued treats these two entities as one and the same.
Similarly, the return of service reflects that the citation was delivered to the
collective version of the two entities.
“Strict compliance requires that the name of the party listed in the return of
service essentially match the name of the party named in the citation or petition.”
N.C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 718 (Tex. App.—Austin
2003, pet. denied). If the names do not match on account of even the slightest of
deviations, a default judgment will be set aside. See, e.g., Uvalde Country Club v.
Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam)
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(petition identified the registered agent for service as “Henry Bunting, Jr.” but the
citation and return reflected service on “Henry Bunting”); Hendon v. Pugh, 46 Tex.
211, 212 (1876) (petition identified the defendant as “J.W. Hendon” but return
reflected service on “J.N. Hendon”); Rone Eng’g Serv., Ltd. v. Culberson, 317
S.W.3d 506, 508–09 (Tex. App.—Dallas 2010, no pet.) (citation issued to “Rone
Engineers, Ltd.” but final default judgment was entered against “Rone Engineering
Service, Ltd.”); Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen.
Contracting Corp., 62 S.W.3d 308, 310 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied) (citation issued to “Hercules Concrete Pumping Service, Inc.” but return
reflected service on “Hercules Concrete Pumping”).
Here, the return reflected service on a defunct corporation, Lone Star Ford,
Inc. Although the return identified this defunct corporation as having the same
name as Sonic Automotive, the two entities were named separately in the petition
and only Sonic Automotive was named in the default judgment. Citing these
discrepancies, Sonic Automotive contends that service was defective because its
name is not interchangeable with Lone Star Ford, Inc.
Flores counters that she strictly complied with the rules of service because
she is permitted to sue an entity in its assumed or common name. See Tex. R. Civ.
P. 28; Chilkewitz v. Hyson, 22 S.W.3d 825, 828–29 (Tex. 1999) (“Under [Rule 28],
a plaintiff can bring suit against an individual doing business under the name of an
association, partnership, or corporation, even if the association, partnership, or
corporation does not exist.”). She then argues that Lone Star Ford, Inc is the
assumed or common name of Sonic Automotive because the two entities have the
same directors and the same registered agent.
Even if we were to assume that Flores strictly complied with the rules of
service, the recitals in the sheriff’s return create only the presumption that service
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was actually accomplished. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151,
152 (Tex. 1994) (per curiam) (“The return of service . . . has long been considered
prima facie evidence of the facts recited therein.”); Perez v. Old W. Capital Co.,
No. 08-12-00037-CV, — S.W.3d —, 2013 WL 4106660, at *5 (Tex. App.—El
Paso Aug. 14, 2013, no pet. h.); Huffeldt v. Competition Drywall, Inc., 750 S.W.2d
272, 273 (Tex. App.—Houston [14th Dist.] 1988, no writ). The petitioner in a bill
of review can overcome this presumption with corroborated proof of non-service.
See Caldwell, 154 S.W.3d at 97 n.3; Ward v. Nava, 488 S.W.2d 736, 737–38 (Tex.
1972); Min v. Avila, 991 S.W.2d 495, 501 (Tex. App.—Houston [1st Dist.] 1999,
no pet.). Here, Sonic Automotive conclusively established non-service.
Sonic Automotive attached several exhibits to its motion for summary
judgment, including the affidavit of its controller, Shawn Lewis. In this affidavit,
Lewis attested that Sonic Automotive never received the citation from its
registered agent. Lewis also attested that Sonic Automotive had not received notice
of the default judgment from the trial court, and that Sonic Automotive first
learned of this default judgment when Flores served Sonic Automotive with a writ
of execution.
Sonic Automotive corroborated Lewis’s testimony of non-service with
another exhibit, the letter from C.T. Corporation System to Flores. In that letter,
C.T. Corporation System notified Flores that the party named in the citation, Lone
Star Ford, Inc, was inactive on state records. The registered agent revealed that
service to this entity had been discontinued, and that there was no known
forwarding address on file. The registered agent concluded the letter as follows:
“Since we have no address to which to forward this process, we are returning it to
you for further disposition.”
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Flores has not disputed that the petition and citation were returned to her
with no service having been accomplished. Nor has Flores raised a question of
material fact that service was ever attempted again (or accomplished) on Sonic
Automotive. Flores has not asserted, for instance, that after receiving the letter
from C.T. Corporation System, she requested the issuance of a third citation that
named Sonic Automotive directly and omitted the defunct Lone Star Ford, Inc. In
her response to the motion for summary judgment, Flores merely continued her
argument that Lone Star Ford, Inc and Sonic Automotive were the same entity.
The evidence conclusively established that service of process was never
forwarded to Sonic Automotive, the defendant against whom default judgment was
entered. The service papers were instead returned to Flores, who took no further
action to see that service was effectuated. “It is the responsibility of the one
requesting service, not the process server, to see that service is properly
accomplished.” Primate Constr. Inc., 884 S.W.2d at 153 (citing Tex. R. Civ. P.
99(a)). Flores did not do that here. Because proof of non-service is uncontroverted,
we conclude that the trial court correctly granted Sonic Automotive summary
judgment on its bill of review. Furthermore, because there was no question of
material fact as to non-service, the trial court did not err by denying Flores a trial
on the bill of review, even though she had already paid her jury fee. See Caldwell,
154 S.W.3d at 98 (“The wrongful denial of a jury trial is harmful when the case
contains a question of material fact.”); Mercedes-Benz Credit Corp. v. Rhyne, 925
S.W.2d 664, 667 (Tex. 1996).
STATUTE OF LIMITATIONS
Flores styles her third issue as an attack on the limitations theory that
supported the trial court’s final summary judgment. This issue is presented
specifically as follows: “Did [Sonic Automotive] meet its burden to be entitled to a
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Summary Judgment on the affirmative defense of statute of limitation[s]?” The
argument section for this issue does not precisely comport with its style. Instead of
addressing the statute of limitations, Flores focuses on an entirely peripheral
matter: an assertion by Sonic Automotive that Flores had made a judicial
admission in her pleadings.
In its motion for summary judgment, Sonic Automotive asserted that Flores
“judicially admit[ted] that the date of the incident was either August 12 or 13 of
[2007].” Sonic Automotive then asserted in a footnote that Flores “actually visited
the dealership on August 11, 2007, not August 12 or 13.” Sonic Automotive
argued that this factual dispute was not material to its statute of limitations defense.
According to Sonic Automotive, “Plaintiff’s claims were still untimely even
assuming, without conceding, that Plaintiff was injured on either August 12 or 13.”
On appeal, Flores dedicates her third issue to arguing that she did not make a
judicial admission in her pleadings. A judicial admission is a formal waiver of
proof usually found in the pleadings or in the stipulations of the parties. See
Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.
1980). A judicial admission, if established, is conclusive upon the party making it,
and it relieves the opposing party’s burden of proving the admitted fact. Id. A
necessary component of a judicial admission is a “deliberate, clear, and
unequivocal” statement of fact. See id.; Seminole Pipeline Co. v. Broad Leaf
Partners, Inc., 979 S.W.2d 730, 740 (Tex. App.—Houston [14th Dist.] 1998, no
pet.). Flores argues that this requirement is missing from her pleadings because she
alleged that her injury occurred on one of two possible dates, both of which were
disputed by Sonic Automotive. Even if this were true, Flores’s argument is not
dispositive.
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Sonic Automotive assumed for the purposes of argument that Flores’s cause
of action accrued no later than August 13, 2007. With this date as the starting
point, Sonic Automotive argued that Flores’s suit was barred by limitations. Flores
has not argued on appeal that her cause of action accrued on a date later than
August 13, 2007. Nor has she specifically challenged the limitations theory
asserted by Sonic Automotive or raised a fact issue to preclude summary judgment
on this basis. Accordingly, Flores has not made any argument that can defeat the
trial court’s final summary judgment.
CONCLUSION
We overrule Flores’s three issues and affirm the judgment of the trial court.
/s/ John Donovan
Justice
Panel consists of Chief Justice Frost and Justices Busby and Donovan.
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