Catalyst Partners, Inc. v. BASF Corporation ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00377-CV
CATALYST PARTNERS, INC. APPELLANT
V.
BASF CORPORATION APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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Appellant Catalyst Partners, Inc. perfected this restricted appeal from the
trial court’s no answer default judgment in favor of Appellee BASF Corporation.
To prevail in a restricted appeal, Catalyst Partners must establish that (1) it filed
notice of the restricted appeal within six months after the judgment was signed;
(2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing
that resulted in the complained-of judgment and did not timely file any post-
1
See Tex. R. App. P. 47.4.
judgment motions or requests for findings of fact and conclusions of law; and (4)
error is apparent on the face of the record. Alexander v. Lynda’s Boutique, 134
S.W.3d 845, 848 (Tex. 2004). The record, for purposes of a restricted appeal,
consists of all papers filed in the appeal. Norman Commc’ns v. Tex. Eastman
Co., 955 S.W.2d 269, 270 (Tex. 1997).
The first three requirements for filing a restricted appeal are not disputed in
this appeal. We thus turn to the issue of whether error is apparent on the face of
the record. Catalyst Partners’ sole allegation of error on the face of the record is
that the record does not show proper service on Catalyst Partners.
BASF brought suit against Catalyst Partners on a sworn account. After
unsuccessful attempts to serve Catalyst Partners’ registered agent, BASF
requested service on the Texas Secretary of State.2 The record contains a
certification from the Secretary of State that a copy of the citation and petition
was received on February 10, 2010; that a copy was forwarded on February 16,
2010, by certified mail, return receipt requested to Catalyst Partners’ Agent,
Landy Moran, 16203 Part Row, Suite 100, Houston, Texas 77084; and that
process was returned on March 2, 2010, bearing the notation “Attempted-Not
2
Catalyst Partners also complains that BASF asked the Secretary of State
to serve Catalyst Partners at the address of Catalyst Partners’ registered agent
when BASF knew the registered agent’s address was not good because BASF
had been unsuccessful in serving him at the same address Catalyst Partners had
provided to the Secretary of State. It was Catalyst Partners’ statutory duty to
update its address for its registered agent. See Tex. Bus. Orgs. Code Ann. §
5.202 (West 2010). Catalyst Partners’ failure to do so cannot create error on the
face of the record.
2
Known.” When substituted service on a statutory agent is allowed, the designee
is not an agent for service but for receiving process on the defendant’s behalf.
Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004); Capitol Brick,
Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986). A certificate like the
one here conclusively establishes that process was served. Cullever, 144
S.W.3d at 466; Capitol Brick, 722 S.W.2d at 401. Because the record before us
conclusively establishes that process was served on Catalyst Partners by serving
the Secretary of State, the error on the face of the record alleged by Catalyst
Partners––lack of service––does not exist. We overrule Catalyst Partners’ first,
second, and third issues.3
After Catalyst Partners perfected this restricted appeal, BASF filed a
motion to dismiss it.4 We will deny BASF’s motion to dismiss.
3
Catalyst Partners’ three issues are: “[w]as Appellant Catalyst Partners,
Inc. served with process,” “[i]s Appellant Catalyst Partners, Inc. entitled to seek
relief under a restricted appeal,” and “[i]s the No-answer default Judgment
entered on April 24, 2010 valid against Appellant Catalyst Partners, Inc.”
Catalyst Partners’ issues are briefed and argued together, and the only legal
issue presented by them is whether Catalyst Partners was served with process.
4
BASF points to evidence attached to its motion to dismiss showing that
Catalyst Partners’ charter and certificate or registration of taxable entity was
forfeited on February 8, 2008, by the Secretary of State pursuant to Texas Tax
Code section 171.309. See Tex. Tax Code Ann. § 171.309 (West 2008). BASF
explains that it had filed the instant suit on December 28, 2009, while Catalyst
Partners’ charter and certificate or registration of taxable entity were forfeited and
argues that, because of the forfeiture, Catalyst Partners is statutorily “denied the
right to sue or defend in a court of this state.” See Tex. Tax Code Ann.
§ 171.252(1) (West 2008). BASF argues that the statutory provision prohibiting
Catalyst Partners from defending a suit in a court of this state means that
Catalyst Partners forfeited the right to pursue this appeal. Whether Catalyst
3
Having overruled Catalyst Partners’ issues and having denied BASF’s
motion to dismiss the appeal, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: June 9, 2011
Partners may pursue this appeal is a capacity issue, however, and because this
capacity issue was not raised in the trial court, it cannot be raised here. See,
e.g., WHM Props., Inc. v. Dallas County, 119 S.W.3d 325, 330–31 (Tex. App.––
Waco 2003, no pet.). Concurrently with the issuance of this opinion, we will
issue an order denying BASF’s motion to dismiss.
4