Inlog, Inc. v. Ryder Truck Rental, Inc. ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00283-CV
___________________________
INLOG, INC., Appellant
V.
RYDER TRUCK RENTAL, INC., Appellee
On Appeal from County Court at Law No. 2
Denton County, Texas
Trial Court No. CV-2019-01071
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellee Ryder Truck Rental, Inc. obtained a default judgment against
appellant Inlog, Inc. for $114,567.71 and $1,000 in attorney’s fees. Inlog then brought
this restricted appeal, claiming that the record does not show strict compliance with
the procedural rules governing citation and return of service. Ryder failed to file a
brief. Because we conclude the record before us establishes that Inlog is entitled to
prevail on restricted appeal, we reverse the trial court’s default judgment.
II. BACKGROUND
Ryder sued Inlog for breach of contract, sworn account, quantum meruit, and
unjust enrichment based upon Inlog’s alleged failure to comply with an equipment
and service agreement. In its original petition, Ryder alleged that Inlog “is a Texas
Corporation that can be served by delivering a citation and a copy of [the] petition to
its registered agent, United States Corporation Agents, Inc., or its president or any
vice-president, at 9900 Spectrum Drive, Austin, Texas 78717.” The clerk directed
the citation to Inlog as follows:
INLOG, INC.
registered agent United States Corporation Agents, Inc.
or its president or any vice-president
9900 Spectrum Drive
Austin, TX 78717[.]
Ryder served the citation via a process server, who filed the return of service. In
pertinent part, the return reflected as follows:
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The process server added his notarized signature to the return.
Inlog did not file an answer, and on May 24, 2019, Ryder filed a motion for
default judgment. The same day, the trial court granted the motion and signed a
default judgment in Ryder’s favor, awarding it $114,567.71 in damages and $1,000 in
attorney’s fees. Inlog then brought this restricted appeal.
III. DISCUSSION
A. Applicable Law
To prevail in this restricted appeal, Inlog must show that (1) it filed its notice of
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
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
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face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique,
134 S.W.3d 845, 848 (Tex. 2004).
Here, the record shows that Inlog filed its notice of restricted appeal within six
months after the trial court signed the default judgment. It shows that Inlog was a
party to the underlying lawsuit. And it shows that Inlog neither participated in the
hearing that resulted in the default judgment nor filed any post-judgment motions or
requests for findings of fact and conclusions of law. What remains is whether error is
apparent on the face of the record. See Alexander, 134 S.W.3d at 848.
B. Error on the Face of the Record
In a restricted appeal, a party can establish error on the face of the record by
demonstrating that the record fails to affirmatively show strict compliance with the
rules of civil procedure governing issuance, service, and return of citation. See Mandel
v. Lewisville Indep. Sch. Dist., 445 S.W.3d 469, 474 (Tex. App.—Fort Worth 2014, pet.
denied). In what we construe as its first issue, Inlog contends that the record does not
affirmatively show strict compliance. Specifically, Inlog argues that because the return
of service does not adequately reflect the identity of the person to whom the process
server delivered process or that person’s authority to receive service, there is error on
the face of the record. We agree.
Ryder’s original petition alleged that Inlog is a Texas corporation. A
corporation is not a person and thus must be served with process through an agent.
Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226, 230 (Tex. App.—Houston [1st
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Dist.] 2013, no pet.). A Texas corporation’s agent for service of process includes its
president, its vice president, and its registered agent. Tex. Bus. Orgs. Code Ann.
§§ 5.201(a)(1), (b)(1), 5.255(a)(1); Master Capital Sols. Corp. v. Araujo, 456 S.W.3d 636,
639 (Tex. App.—El Paso 2015, no pet.). A Texas corporation may designate another
corporation to serve as its registered agent. Tex. Bus. Orgs. Code Ann.
§ 5.201(b)(2)(B); see Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist.,
180 S.W.3d 903, 905 (Tex. App.—Dallas 2005, pets. denied).
A corporation designated as another corporation’s registered agent must itself
be served through one of its agents. See Reed Elsevier, Inc., 180 S.W.3d at 905. That
includes the designee corporation’s president, vice-president, and registered agent.
And it also may include the designee corporation’s employees. See Tex. Bus. Orgs.
Code Ann. § 5.201(d) (“A registered agent that is an organization must have an
employee available at the registered office during normal business hours to receive
service of process, notice, or demand. Any employee of the organization may receive
service at the registered office.”); Asset Prot. & Sec. Servs., L.P. v. Armijo, 570 S.W.3d
377, 383 (Tex. App.—El Paso 2019, no pet.).
In a restricted appeal, we do not presume valid issuance, service, and return of
citation. Mansell v. Ins. Co. of the West, 203 S.W.3d 499, 501 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). If the record does not show strict compliance with the
rules governing citation and return of service, the service is invalid. See TAC Americas,
Inc. v. Boothe, 94 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.). Moreover,
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virtually any deviation from these rules is sufficient to set aside a default judgment in a
restricted appeal. Mansell, 203 S.W.3d at 501. Pertinent here, a proper return of
service must show the person or entity served. See Tex. R. Civ. P. 107(b)(5). And in
addition, where service is on a corporation, Rule 107 requires the return to show both
the name of the person who received service and that the person was authorized to
do so. See W. Garry Waldrop DDS, Inc. v. Pham, No. 14-15-00747-CV, 2016 WL
4921588, at *3-4 (Tex. App.—Houston [14th Dist.] Sept. 15, 2016, no pet.) (mem.
op.).
Here, the return of service does not reflect the full name of the person who
received service. Instead, in the return’s preprinted blank in which the name of the
person receiving service was supposed to be written, somebody wrote “DeSiRB R.”1
And as if to emphasize that the identity of that person would remain a mystery,
somebody wrote “(refused last name)” immediately after “DeSiRB R.” We conclude
the return does not sufficiently identify the person who received service, even if we
assumed that “DeSiRB R.” represented that person’s first name and last initial. As
noted, when serving a corporation, the return must identify by name the person
receiving service on the corporation’s behalf. See id. at *3–4 (concluding that return’s
failure to provide the name of the person who received service on corporation’s
1
We note that the first name of the person who received service is illegible.
While the first name could also be “Desire,” our disposition does not turn on whether
the first name is “DeSiRB,” “Desire,” or some other variation.
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behalf was a fatal defect); see also Geochemical Operating Corp. v. Harrison, No. 11-13-
00329-CV, 2015 WL 5714241, at *3 (Tex. App.—Eastland Sept. 24, 2015, no pet.)
(mem. op.) (concluding that return of service was fatally defective where it only stated,
“the registered agent’s surname, ‘Mr. Quinn,’ instead of both his first name and
surname as required.”).
Nor does the return show that “DeSiRB R.” was a person authorized to receive
service on behalf of United States Corporation Agents, Inc., Inlog’s registered agent.
As noted, a corporation may be served with process by delivering process to its
president, vice-president, or registered agent. Tex. Bus. Orgs. Code Ann.
§§ 5.201(a)(1), (b)(1), 5.255(a)(1); Master Capital Sols. Corp, 456 S.W.3d at 639. And
because United States Corporation Agents, Inc. is a corporation that is serving as
Inlog’s registered agent, service on United States Corporation Agents, Inc. would have
been proper by serving one of its employees at its registered office. See Tex. Bus.
Orgs. Code Ann. § 5.201(d).
But here, the return reflects only that “DeSiRB R.” was United States
Corporation Agents, Inc.’s “employee/managing agent.” Nothing in the return
clarifies whether “DeSiRB R.” is an employee or managing agent, and there is also
nothing to suggest that a “managing agent” is equivalent to an employee.
Accordingly, the return failed to show on its face that DeSiRB R. was authorized to
receive service on behalf of Inlog’s registered agent. See W. Garry Waldrop DDS, Inc.,
2016 WL 4921588, at *4 (concluding that service was not proper because the return
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did not show on its face that the person who received service on corporation’s behalf
was authorized to do so).
For these reasons, we conclude that the face of the record fails to show strict
compliance with the rules governing citation and return of service. Therefore, we
sustain Inlog’s first issue.2 See TAC Americas, Inc., 94 S.W.3d at 319.
IV. CONCLUSION
Having sustained Inlog’s first issue, we reverse the trial court’s default
judgment and remand this case for further proceedings. Tex. R. App. P. 43.2(d).
/s/ Dana Womack
Dana Womack
Justice
Delivered: April 16, 2020
2
Because we sustain Inlog’s first issue, we need not address what we construe as
its second, in which it argues that error is apparent on the face of the record because
insufficient evidence supports the trial court’s award of damages. See Tex. R. App. P.
47.1.
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