Coleman R. Ferguson v. Transpetco Transport Company

• Court: Court of Appeals of Texas
• Decided: February 4, 2021
• Docket: 09-19-00147-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00147-CV __________________

COLEMAN R. FERGUSON, Appellant

V.

TRANSPECTO TRANSPORT COMPANY, Appellee

__________________________________________________________________

On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-201,340 __________________________________________________________________

MEMORANDUM OPINION

In this restricted appeal, 1 Coleman R. Ferguson seeks to overturn a judgment

he suffered by default favoring the plaintiff that sued him, Transpecto Transport

1 See Tex. R. App. P. 30 (providing that “[a] party who did not participate— either in person or through counsel—in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within” six months after the trial court signed the judgment). Here, the trial court signed the judgment on November 15, 2018. Ferguson filed his notice of appeal on May 10, 2019. 1 Company. In the court below, Transpecto sued Ferguson and Ferguson Syngas,

LLC, alleging that Ferguson Syngas defaulted on the loan it obtained from

Transpecto and that Ferguson, as Ferguson Syngas’s agent, was guilty of fraud based

on the conduct he engaged in to obtain the loan.2 We conclude that Ferguson has

failed to show that he was not served properly under the rules of procedure that apply

to serving a party at his last known address based on the facts in the face of the

record. Because the face of the record does not show Transpecto failed to serve

Ferguson at his last known address or that the petition and citation were not served

in accordance with the order the trial court signed authorizing serving him at his last

known address by affixing a copy of the petition and citation to the residence that

was his last known address, we affirm.

Background

In February 2014, Ferguson, acting for Ferguson Syngas, LLC, obtained a

loan for $120,000 from Transpecto Transport Company. Under Ferguson Syngas’s

note, the company agreed to pay the balance of the loan, with interest, when the loan

2 Even though Coleman R. Ferguson and Ferguson Syngas, LLC were named as defendants and the trial court rendered judgment against both, Coleman R. Ferguson is the only party who filed a notice to appeal from the trial court’s judgment. Even had Ferguson Syngas, LLC also filed a restricted appeal, however, we would reach the same conclusion we reach in disposing of Ferguson’s appeal— that no error has been shown based on the evidence found on the face of the record— since the argument he raises in his brief claiming Ferguson Syngas, LLC is chartered in the State of Oklahoma and not Texas is unsupported by the evidence that falls within our scope of review. 2 matured in one year. When Ferguson Syngas failed to pay the loan, lawyers

representing Transpecto sent Ferguson and Ferguson Syngas a letter demanding that

Ferguson Syngas pay the loan in full.

When Ferguson Syngas failed to comply, Transpecto sued Ferguson and

Ferguson Syngas in the 58th District Court on claims alleging breach of contract and

fraud. As for serving citation, Transpecto’s petition alleges that Ferguson resides in

Texas and that he could be “served with process at 1915 Magnolia Avenue, Port

Neches, Texas [], or wherever he may be found within the State of Texas.” As to

Ferguson Syngas, the petition alleges that Ferguson Syngas “is an Oklahoma limited

liability company, that can be served with process through its registered agent

Coleman Ferguson, located at 1915 Magnolia Avenue, Port Neches, Texas[], or

wherever he may be found within the State of Texas.”

According to the clerk’s record, a process server tried to serve Ferguson and

Ferguson Syngas five times in late March 2018 by serving Ferguson with the petition

and citation at 120 Harness Lane, Georgetown, Texas. According to Transpecto’s

motion for alternative service, the address on Harness Lane is Ferguson’s last known

address and Transpecto tried to serve him by serving him personally at that address.

When the process server’s efforts to do so failed, Transpecto asked the trial court for

permission to serve the suit by affixing a copy of the petition, citation, and the motion

for alternative service to the door of the residence because the process server had

3 learned from one of Ferguson’s former neighbors that she was forwarding

Ferguson’s mail to him from the residence at 120 Harness Lane, Georgetown, Texas.

Transpecto’s motion for alternate services is supported by an affidavit, signed

by the process server who tried to serve Ferguson with the suit. The affidavit explains

the process server tried to serve Ferguson personally with the suit several times. It

also explains that, while trying to find Ferguson, the process server spoke to Mrs.

Anderson, a person who also lives on Harness Lane. According to the affidavit, the

process server learned that Anderson was forwarding Ferguson’s mail to him at an

address she refused to disclose. As to these facts, the process server’s affidavit states:

Mrs. Anderson [] confirmed that she has not seen Coleman Ferguson in several years & his wife Bettye owns the house. Mrs. Anderson collects their mail & packages & forwards them to them, but she would not provide that address. She went inside to call Mr. Ferguson[] and returned to tell me that Mr. Ferguson would not provide any information about where he was living.

The trial court granted Transpecto’s motion in which it sought to serve

Ferguson by alternative means. The court’s order that authorized alternative services

provides:

[S]ervice of citation may be made on Defendants, Coleman R. Ferguson d/b/a Ferguson Syngas, LLC, and Ferguson Syngas, LLC, by and through their registered agent, Coleman R. Ferguson, by leaving a copy of the citation, with a copy of the Petition and a copy of this Order attached, with any person 16 years or older at 120 Harness Lane, Georgetown, Texas 78633, a place where Defendants have been receiving mail; OR affixing said citation with attached Petition and a copy of this Order to the front door of Defendants’ registered agent’s

4 last known address located at 120 Harness Lane, Georgetown, Texas 78633.

After the trial court granted Transpecto’s motion, the process server affixed the

citation, petition, the motion, and the order authorizing alternative service to the

front door of the residence at 120 Harness Lane.

In June 2018, Transpecto moved for a no-answer default judgment against

Ferguson and Ferguson Syngas, LLC. In November 2018, the trial court granted

Transpecto’s motion for default judgment. In granting the motion, the court signed

a judgment awarding Transpecto $150,006.00 in damages based on Transpecto’s

claims alleging breach of contract and fraud. 3

Analysis

To affirm a judgment in a case involving a judgment obtained against a

defendant by default, the record before us in the appeal must establish that the trial

court could exercise jurisdiction over the parties and over the subject matter of the

suit.4 The record must also show the plaintiff complied with the rules of procedure

that control the manner and method of serving a party with a lawsuit.5 Without a

record that shows the plaintiff served the lawsuit properly under one of the methods

3 For simplicity, we have rounded all monetary figures to whole numbers. 4 Marrot Commc’ns Inc. v. Town & Country P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). 5 See Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). 5 provided in the rules of procedure, a trial court never acquires jurisdiction over the

defendant’s person and any resulting judgment that a trial court might sign are

invalid.6 In fact, if the trial court lacks jurisdiction over the suit, the judgment that it

signs is void. 7

Texas law prefers personal service on defendants rather than service through

some other alternative means. 8 Yet the rules still authorize a trial court to allow

service of the suit by other means, if the trial court is given evidence that shows

reasonable attempts to effect personal service of the suit failed and that another

alternative method of service “will be reasonably effective to give the defendant

notice of the suit.”9 In cases “[w]here citation is executed by an alternative method

as authorized by Rule 106, proof of service shall be made in the manner ordered by

the court.” 10 In cases involving an service of the suit by an alternative method, the

plaintiff must strictly comply with the requirements the trial court creates in its order

allowing alternative service to serve the defendant properly with the lawsuit.11

6 Id. 7 Id. 8 Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 751 (Tex. App.—Fort Worth 2003, no pet.). 9 Tex. R. Civ. P. 106(b)(2). 10 Id. 107(f). 11 Vespa, 98 S.W.3d at 752. 6 Rule 30 of the Texas Rules of Appellate Procedure control our jurisdiction to

consider a restricted appeal.12 As to those requirements, the parties agree that

Ferguson never participated in the proceedings in the court below. But to prevail in

his appeal, Ferguson must also show that “error is apparent on the face of the

record.”13 The phrase face of the record consists of the documents before the trial

court when it rendered the judgment at issue in the appeal, including the clerk’s

record and the reporter’s record created in the proceedings that occurred below.14

Since the parties do not dispute that Ferguson met the requirements listed in Rule

30, we focus on whether he has shown that error exists on the face of the record to

resolve the arguments he presents to support his appeal.

In his brief, Ferguson argues that the allegations in Transpecto’s petition about

where he resides and where Ferguson Syngas, LLC is chartered are false. Unlike the

allegations in Transpecto’s petition, Ferguson argues he resides in Oklahoma. He

supports his claim by noting that the certificate signed by the Secretary of the State

of Oklahoma, which he attached to his appendix, shows that Ferguson Syngas, LLC

is chartered in Oklahoma, he is Ferguson Syngas’s registered agent, and his address

is 2140 South Columbia, Tulsa, Oklahoma. But the certificate in the appendix

12 Tex. R. App. P. 30. 13 Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). 14 Norman Commc’ns. v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). 7 Ferguson included with his brief is not evidence that is in the face of the record.

Instead, the certificate he relies on is extrinsic evidence, meaning the certificate is

not evidence that is within the documents that consist of the face of the record. As a

result, we may not consider the certificate in resolving the issues Ferguson raises in

his restricted appeal.15

Turning to the documents found within the face of the record, we conclude

nothing in them shows that the jurisdictional allegations in Transpecto’s petition are

false. Stated another way, the documents within our limited scope of review fail to

show that Transpecto failed to serve Ferguson at his last known address. Moreover,

nothing in them show that Ferguson was not served in the manner the trial court

described in its court’s order granting Transpecto’s motion for alternate service.

Instead, the record shows that Ferguson was served with the petition, citation, and

the order authorizing alternative service by the means in the trial court’s order, that

was by affixing the lawsuit and citation to the front door of Ferguson’s last known

address.16

15 Alexander, 134 S.W.3d at 848 (in a restricted appeal, explaining the Supreme Court would not consider an affidavit filed by a party to the appeal when the affidavit was filed for the first time in the appeal). 16 Although Ferguson Syngas, LLC is not a party to this appeal, Ferguson has argued in his brief that service on Ferguson Syngas, LLC is also defective. We note, however, that nothing on the face of the record shows the jurisdictional allegations relevant to serving Ferguson as Ferguson Syngas’s registered agent are false. And nothing on the face of the record shows that Ferguson Syngas, LLC was not served

8 To boil it down, Ferguson asks that this Court rely on extrinsic evidence to

reverse the default judgment from which he has appealed. But Ferguson needs

extrinsic evidence to establish his claim that Transpecto failed to serve him at his

last known address, and since he needs extrinsic evidence to prove his claims, “the

appropriate remedy is by motion for new trial or by bill of review filed in the trial

court so that the trial court has the opportunity to consider and weigh factual

evidence.”17 Nothing we decide today affects Ferguson’s right to pursue a claim

alleging that he has a right to have the default judgment set aside by filing a bill of

review.

We hold Ferguson has not established that error exists on the face of the

record. For that reason, we overrule the issues he raises in his brief and affirm the

judgment rendered below.

AFFIRMED.

_________________________ HOLLIS HORTON Justice Submitted on August 17, 2020 Opinion Delivered February 4, 2021

Before Golemon, C.J., Kreger and Horton, JJ.

in the manner required by the trial court’s order authorizing service by alternative means. 17 Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998) (“A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.”). 9