Opinion issued August 9, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-01118-CV ——————————— DAVE MARQUEZ, Appellant V. NIKKI GREIG, ON BEHALF OF TEXAS STARS CHEERLEADING, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 09-DCV-176744
MEMORANDUM OPINION
Appellant Dave Marquez brings this restricted appeal from a default
judgment rendered in favor of appellee Nikki Greig on behalf of Texas Stars
Cheerleading. Marquez argues that error appears on the face of the record because the Secretary of State’s certificate of service of process indicates that the citation
and original petition were delivered to an incorrect address. We reverse the default
judgment and remand for further proceedings.
Background
Nikki Greig filed a petition in district court alleging that Dave Marquez had
contracted with her to provide dance and cheerleading choreography services. She
alleged that Marquez performed pursuant to that contract, but his services were not
of the grade and quality that he had represented. The petition asserted multiple
causes of action including breach of contract, violations of the Texas Deceptive
Trade Practices Act, and fraud.
In the petition, Greig identified the Texas Secretary of State as the agent for
service of process because Marquez lived at “2155 North Fairview” in Santa Ana,
California. The citation likewise reflects that Marquez’s street address was “2155
North Fairview.” However, the Secretary of State’s certificate of service of
process reflects that copies of the citation and petition were forwarded by certified
mail to “2155 Northfairview” in Santa Ana, California. The certificate further
reflects that the return receipt bore a notation of “unclaimed.” Marquez never
answered or otherwise appeared in the trial court until filing his notice of appeal.
Several weeks after the Secretary of State’s certificate was filed in the trial
court, Greig filed a motion for default judgment. Although the motion
2 acknowledged that the return receipt bore a notation of “unclaimed,” it asserted
that the Secretary of State had served Marquez with copies of the citation and
petition. The motion stated that Marquez’s last known address was “2155 North
Fairview” in Santa Ana, California. A “Plaintiff’s Certificate of Last Known
Address” signed by Greig’s counsel reflects that same address.
The trial court held a hearing on Greig’s motion for default judgment.
Following the hearing, the trial court signed an order granting the motion and
rendering against Marquez a money judgment of $11,048.87 for damages,
$4,125.00 for attorney’s fees, and court costs. A notice of default judgment was
sent to Marquez at “2155 North Fairview” in Santa Ana, California.
After the default judgment was signed by the trial court, Marquez timely
filed notice of a restricted appeal.
Analysis
In his sole issue, Marquez argues that error is apparent on the face of the
record because it shows that the Secretary of State forwarded the citation and
petition to an incorrect address. He contends that “2155 North Fairview,” as his
address appears in Greig’s petition, is not the same as “2155 Northfairview,” as his
address appears in the Secretary of State’s certificate of service of process.
Therefore, Marquez argues, the record does not show compliance with the rules
3 governing service of process, the default judgment must be reversed, and the case
must be remanded for a new trial.
Although Greig has not filed an appellee’s brief, she has filed a motion to
dismiss the appeal. She contends that the record demonstrates that Marquez was
properly served at his home address. This court ordered that Greig’s motion be
carried with submission of the case.
Generally, if a defendant does not timely file an answer and a return of
service has been on file for ten days, the plaintiff may take judgment by default.
See TEX. R. CIV. P. 107(h) & 239. The defendant can prevail on a restricted appeal
only if (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 judgment complained of and did not
timely file any postjudgment motions or requests for findings of fact and
conclusions of law, and (4) error is apparent on the face of the record. TEX. R.
APP. P. 26.1(c) & 30; Ins. Co. of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009)
(per curiam). The only matter at issue in this restricted appeal is whether error is
apparent on the face of the record. The face of the record consists of all the papers
on file in the appeal. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269,
270 (Tex. 1997) (per curiam).
4 For a trial court to have jurisdiction over a nonresident defendant, the
Secretary of State must forward copies of the citation and petition to the defendant
as required by the long-arm statute. Comm’n of Contracts of Gen. Exec. Comm. v.
Arriba, Ltd., 882 S.W.2d 576, 585 (Tex. App.—Houston [1st Dist.] 1994, no pet.)
(citing Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973)). Under the
long-arm statute, the Texas Secretary of State is an agent for service of process on
a nonresident defendant who engages in business in this state but does not maintain
a regular place of business in this state or a designated agent for service of process,
in any proceeding arising out of business done in Texas and to which the
nonresident defendant is a party. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 17.044(b) (West 2008). Once the Secretary of State is served with duplicate
copies of process for a nonresident defendant that reflect the nonresident’s name
and home or home office address, it must immediately mail to the provided address
a copy of the process by registered or certified mail with return receipt requested.
See id. § 17.045(a), (d).
In a restricted appeal, there is no presumption in favor of valid service of
process. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per
curiam); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885
(Tex. 1985) (per curiam). The failure to affirmatively show strict compliance with
the rules governing service of process renders the attempted service invalid and of
5 no effect. Uvalde Country Club, 690 S.W.2d at 885. However, absent fraud or
mistake, the Secretary of State’s certificate of service of process is conclusive
evidence that it received and forwarded service as required by statute. Capitol
Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986).
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Opinion issued August 9, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-01118-CV ——————————— DAVE MARQUEZ, Appellant V. NIKKI GREIG, ON BEHALF OF TEXAS STARS CHEERLEADING, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 09-DCV-176744
MEMORANDUM OPINION
Appellant Dave Marquez brings this restricted appeal from a default
judgment rendered in favor of appellee Nikki Greig on behalf of Texas Stars
Cheerleading. Marquez argues that error appears on the face of the record because the Secretary of State’s certificate of service of process indicates that the citation
and original petition were delivered to an incorrect address. We reverse the default
judgment and remand for further proceedings.
Background
Nikki Greig filed a petition in district court alleging that Dave Marquez had
contracted with her to provide dance and cheerleading choreography services. She
alleged that Marquez performed pursuant to that contract, but his services were not
of the grade and quality that he had represented. The petition asserted multiple
causes of action including breach of contract, violations of the Texas Deceptive
Trade Practices Act, and fraud.
In the petition, Greig identified the Texas Secretary of State as the agent for
service of process because Marquez lived at “2155 North Fairview” in Santa Ana,
California. The citation likewise reflects that Marquez’s street address was “2155
North Fairview.” However, the Secretary of State’s certificate of service of
process reflects that copies of the citation and petition were forwarded by certified
mail to “2155 Northfairview” in Santa Ana, California. The certificate further
reflects that the return receipt bore a notation of “unclaimed.” Marquez never
answered or otherwise appeared in the trial court until filing his notice of appeal.
Several weeks after the Secretary of State’s certificate was filed in the trial
court, Greig filed a motion for default judgment. Although the motion
2 acknowledged that the return receipt bore a notation of “unclaimed,” it asserted
that the Secretary of State had served Marquez with copies of the citation and
petition. The motion stated that Marquez’s last known address was “2155 North
Fairview” in Santa Ana, California. A “Plaintiff’s Certificate of Last Known
Address” signed by Greig’s counsel reflects that same address.
The trial court held a hearing on Greig’s motion for default judgment.
Following the hearing, the trial court signed an order granting the motion and
rendering against Marquez a money judgment of $11,048.87 for damages,
$4,125.00 for attorney’s fees, and court costs. A notice of default judgment was
sent to Marquez at “2155 North Fairview” in Santa Ana, California.
After the default judgment was signed by the trial court, Marquez timely
filed notice of a restricted appeal.
Analysis
In his sole issue, Marquez argues that error is apparent on the face of the
record because it shows that the Secretary of State forwarded the citation and
petition to an incorrect address. He contends that “2155 North Fairview,” as his
address appears in Greig’s petition, is not the same as “2155 Northfairview,” as his
address appears in the Secretary of State’s certificate of service of process.
Therefore, Marquez argues, the record does not show compliance with the rules
3 governing service of process, the default judgment must be reversed, and the case
must be remanded for a new trial.
Although Greig has not filed an appellee’s brief, she has filed a motion to
dismiss the appeal. She contends that the record demonstrates that Marquez was
properly served at his home address. This court ordered that Greig’s motion be
carried with submission of the case.
Generally, if a defendant does not timely file an answer and a return of
service has been on file for ten days, the plaintiff may take judgment by default.
See TEX. R. CIV. P. 107(h) & 239. The defendant can prevail on a restricted appeal
only if (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 judgment complained of and did not
timely file any postjudgment motions or requests for findings of fact and
conclusions of law, and (4) error is apparent on the face of the record. TEX. R.
APP. P. 26.1(c) & 30; Ins. Co. of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009)
(per curiam). The only matter at issue in this restricted appeal is whether error is
apparent on the face of the record. The face of the record consists of all the papers
on file in the appeal. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269,
270 (Tex. 1997) (per curiam).
4 For a trial court to have jurisdiction over a nonresident defendant, the
Secretary of State must forward copies of the citation and petition to the defendant
as required by the long-arm statute. Comm’n of Contracts of Gen. Exec. Comm. v.
Arriba, Ltd., 882 S.W.2d 576, 585 (Tex. App.—Houston [1st Dist.] 1994, no pet.)
(citing Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973)). Under the
long-arm statute, the Texas Secretary of State is an agent for service of process on
a nonresident defendant who engages in business in this state but does not maintain
a regular place of business in this state or a designated agent for service of process,
in any proceeding arising out of business done in Texas and to which the
nonresident defendant is a party. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 17.044(b) (West 2008). Once the Secretary of State is served with duplicate
copies of process for a nonresident defendant that reflect the nonresident’s name
and home or home office address, it must immediately mail to the provided address
a copy of the process by registered or certified mail with return receipt requested.
See id. § 17.045(a), (d).
In a restricted appeal, there is no presumption in favor of valid service of
process. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per
curiam); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885
(Tex. 1985) (per curiam). The failure to affirmatively show strict compliance with
the rules governing service of process renders the attempted service invalid and of
5 no effect. Uvalde Country Club, 690 S.W.2d at 885. However, absent fraud or
mistake, the Secretary of State’s certificate of service of process is conclusive
evidence that it received and forwarded service as required by statute. Capitol
Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986).
Marquez analogizes this case to Royal Surplus Lines Insurance Co. v.
Samaria Baptist Church, 840 S.W.2d 382 (Tex. 1992) (per curiam). In that case,
the plaintiff unsuccessfully attempted service of process on the defendant’s
registered agent. Id. at 382. Pursuant to the Texas Non-Profit Corporation Act, the
plaintiff then attempted service through the Secretary of State. Id. The address of
the defendant’s registered agent was listed in the Secretary’s public records as
“1201 Bessie.” Id. at 383. However, the Secretary’s certificate reflected that it
sent the citation and petition to “1201 Bassie,” and the letter was returned with the
notation “unclaimed.” Id. The defendant did not appear, and the trial court
rendered a default judgment. Id. at 382. On appeal, the court of appeals reversed
the default judgment and remanded for a new trial. Id. at 383. In denying the
plaintiff’s application for writ of error, the Supreme Court noted that “[a]
typographical error in the forwarding address typed by the Secretary is grounds to
set aside a default judgment based on substituted service.” Id.
This case is analogous to Royal Surplus Lines. There are numerous
indications in the record that Marquez’s address is “2155 North Fairview,” but the
6 Secretary of State’s certificate indicates that the citation and petition were
forwarded to “2155 Northfairview.” The return receipt, like the one in Royal
Surplus Lines, indicates that the process sent to that address was “unclaimed.”
Given the notation on the return receipt and the multiple indications in the record
that Marquez’s actual address differed, if only slightly, from the address to which
the Secretary of State forwarded service of process, we hold that the record does
not affirmatively show strict compliance with the rules governing service of
process. See Uvalde Country Club, 690 S.W.2d at 885. Accordingly, we sustain
Marquez’s issue on appeal, reverse the default judgment, and remand the case for
further proceedings. See Royal Surplus Lines, 840 S.W.2d at 383.
Conclusion
We deny as moot Greig’s motion to dismiss the appeal. We reverse the
judgment and remand the case for further proceedings.
Michael Massengale Justice
Panel consists of Justices Bland, Massengale, and Brown.