AEP Engineering & Consulting, Inc. D/B/A Texas Conveyors v. SICK, Inc. ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-007-CV
AEP ENGINEERING & APPELLANT
CONSULTING, INC. D/B/A
TEXAS CONVEYORS
V.
SICK, INC. APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant AEP Engineering & Consulting, Inc. d/b/a Texas Conveyors
appeals from the default judgment granted in favor of SICK, Inc. In this
restricted appeal, AEP argues in one point that the trial court erred by entering
the default judgment because the court did not obtain personal jurisdiction over
1
 See Tex. R. App. P. 47.4.
AEP due to defective service of process. Because we hold that the record does
not show that SICK used reasonable diligence in serving AEP’s registered agent,
we reverse the trial court’s default judgment and remand this case for further
proceedings consistent with this opinion.
Background Facts and Procedural History
On January 25, 2008, SICK filed an action on a sworn account and for
unjust enrichment against AEP. SICK’s petition alleged that AEP could be
served with citation at the office of AEP’s registered agent, Eddie Pierce,
located at “5602 Creekside Ct., Colleyville, TX.” The petition further asserted
that if AEP could not be served after reasonable diligence, substituted service
could be made upon the Secretary of State under article 2.11 of the business
corporation act. 2
On April 14, 2008, SICK filed with the trial court an “affidavit of
attempted service” by Henry B. Mastellar, a process server. Mastellar stated
that the case “[c]ame to hand on the 11th day of February 2008, at 12:00
o’clock pm.” Mastellar then described his attempts at service:
Not executed by not delivering Citation to the within named: Eddie
Pierce, Registered Agent. After due and diligent efforts, affiant
was unable to effect service as indicated below:
2
 Tex. Bus. Corp. Act Ann. art. 2.11 (Vernon Supp. 2009).
2
Date: 2-16-08 Time: 1:06 pm Location: 5602 Creekside Ct.
Colleyville, Texas
Reason: Arrived at above residential address of defendant’s usual
place of abode. No answer.
Date: 2-18-08 Time: 4:55 pm Location: 5602 Creekside Ct.
Colleyville, Texas
Reason: Arrived at above residential address of defendant’s usual
place of abode. No answer.
Date: 2-19-08 Time: 8:35 am Location: 5602 Creekside Ct.
Colleyville, Texas
Reason: Arrived at above residential address of defendant’s usual
place of abode. No answer.
On May 5, 2008, SICK served the Secretary of State, who then
forwarded the citation and original petition to Pierce at the same address at
which Mastellar had attempted service. The process was returned to the
Secretary of State’s office as unclaimed on June 2, 2008. AEP did not file an
answer, and on July 7, 2008, the trial court entered a default judgment
awarding SICK $32,828 in actual damages, plus interest, and $16,000 in
attorney’s fees. AEP subsequently filed this restricted appeal.
Standard of Review
A direct attack on a judgment by restricted appeal must: (1) be brought
within six months after the trial court signs the judgment; (2) by a party to the
suit; (3) who did not participate in the hearing that resulted in the judgment
3
made the subject of the complaint or file a timely postjudgment motion, request
for findings of fact and conclusions of law, or other notice of appeal; and (4)
raise error that is apparent on the face of the record. 3 The last element is at
issue in this case.
For a default judgment to stand on direct appeal, the record must show
strict compliance with the rules governing service of citation. 4 We make no
presumptions in favor of valid issuance, service, and return of citation. 5 The
failure to comply with the rules constitutes error on the face of the record. 6
Analysis
In its sole point, AEP asserts that the trial court erred by granting the
default judgment because it did not obtain personal jurisdiction over AEP due
to defective service of process. AEP argues that the return failed to show that
SICK exercised reasonable diligence in finding its registered agent before
3
 GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 58–59 (Tex.
App.—Fort Worth 2003, pet. denied).
4
 Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009)
(per curiam).
5
 Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W.3d 848, 848 (Tex.
2007) (per curiam); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690
S.W.2d 884, 885 (Tex. 1985).
6
 Lejeune, 297 S.W.3d at 256; see also GMR Gymnastics Sales, 117
S.W.3d at 59.
4
substituting service on the Secretary of State and that the return is fatally
defective because it (1) was not properly verified; (2) did not state when the
citation was received, (3) did not show any attempt to serve the petition in
addition to the citation, (4) was verified thirty days after it was signed, and (5)
was signed by Mastellar before service was even attempted.
Rule 107 of the rules of civil procedure states:
No default judgment shall be granted in any cause until the citation,
or process under Rules 108 or 108a [concerning service outside the
state], with proof of service as provided by this rule or by Rules
108 or 108a, or as ordered by the court in the event citation is
executed under Rule 106, shall have been on file with the clerk of
the court ten days, exclusive of the day of filing and the day of
judgment. 7
SICK did not seek alternative service under rule 106, and rules 108 and 108a
are inapplicable. 8 Thus, to be granted a default judgment, SICK had to show
proof of service in compliance with rule 107. AEP does not contest the validity
of the proof of service on or by the Secretary of State or that such proof was
on file with the trial court for the required amount of time. AEP argues only
7
 Tex. R. Civ. P. 107.
8
 See Tex. R. Civ. P. 106 (discussing methods of service and
authorizing alternative methods of service); Tex. R. Civ. P. 108 (governing
service on an out-of-state defendant), Tex. R. Civ. P. 108a (governing service
of process in foreign countries).
5
that the process server’s return was conclusory on the question of diligence and
that it contained fatal defects.
AEP argues that SICK had to comply with section 5.251(1)(B) of the
business organizations code to serve the Secretary of State, but that section
only became effective for all entities as of January 1, 2010. Prior to that time,
the business organizations code applied to domestic entities that were formed
on or after January 1, 2006, or that elected early adoption of the code. 9
Nothing in the record suggests that this section applies, and we therefore apply
the statute in effect as of the time of service. Prior to the effective date of
section 5.251, under article 2.11 of the business corporation act, the Secretary
of State acted as the agent for service of process for a domestic corporation
when, after reasonable diligence, the corporation’s registered agent could not
be found at the corporation’s registered office. 10 Thus, the Secretary of State
could only be served if, after reasonable diligence, AEP’s registered agent could
9
 Tex. Bus. Orgs. Code Ann. §§ 402.001, 402.003, 402.005 (Vernon
2009).
10
 Tex. Bus. Corp. Act art. 2.11B (“Whenever a corporation shall fail to
appoint or maintain a registered agent in this State, or whenever its registered
agent cannot with reasonable diligence be found at the registered office, then
the Secretary of State shall be an agent of such corporation upon whom any
such process, notice, or demand may be served.”).
6
not be found at the company’s registered office. 11 A trial court may look at the
entire record, not just the return of service, to determine whether the plaintiff
used reasonable diligence. 12
Considering the record as a whole, we cannot say that it establishes
reasonable diligence. The pleadings do not discuss any attempts at service.
SICK’s original petition states only that if the registered agent cannot be found
with reasonable diligence, then substituted service may be made on the
Secretary of State. SICK did not amend its petition to allege any facts about
its attempts at service. 13 No motion for default judgment appears in the record,
nor does any other motion that disclosed to the trial court the efforts made to
serve the registered agent.
11
 See Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 34
(Tex. App.—Houston [1st Dist.] 2003, no pet.) (“[A] default judgment obtained
after an attempted substituted service [under article 2.11] will not stand absent
a showing by the plaintiff that, before it resorted to substituted service, it first
used reasonable diligence in seeking service on the registered agent of the
corporation”).
12
 G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 816 (Tex.
App.—Houston [1st Dist.] 1996, no writ).
13
 See Charles Cohen, Inc. v. Adams, 516 S.W.2d 464, 466–67 (Tex.
Civ. App.—Tyler 1974, no writ) (noting that there were no allegations in the
plaintiff’s pleadings or evidence to authorize service under article 2.11 and that
the plaintiff had not amended its petition to allege facts that would authorize
service on the Secretary of State).
7
The only document in the record that touched on the diligence used is the
“affidavit of attempted service” from Mastellar. This “affidavit” is in fact not
an affidavit because, although it is a statement of facts, in writing, and signed
by the party making it, it is not “sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under his seal of
office.” 14 The document is verified, but not by Mastellar. Instead, the
verification states that Brandon James Flohr appeared before the notary public
and swore to the representations made in the affidavit. That is, the person who
swore to the affidavit (Brandon Flohr) was not the process server who made
and signed it (Henry Mastellar). Nothing else in the record explains the
diligence, if any, that SICK used in attempting to serve AEP’s registered agent.
We cannot hold that this record demonstrates reasonable diligence.
Accordingly, we sustain AEP’s sole issue.
14
 See Tex. Gov’t Code Ann. § 312.011(1) (Vernon 2005) (defining the
term “affidavit”); In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008,
no pet.) (“An affidavit is insufficient unless the statements in it are direct and
unequivocal and perjury can be assigned to them.”).
8
Having sustained AEP’s sole issue, we reverse the trial court’s default
judgment and remand this cause for further proceedings consistent with this
opinion.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DELIVERED: April 8, 2010
9