In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-17-00443-CV ________________________
IN RE FDB POOLS, INC. D/B/A AMARILLO CUSTOM POOLS
Original Proceeding Arising Out of Proceedings before the 223rd District Court In and For Gray County, Texas Trial Court No. 38,794; Honorable Phil N. Vanderpool, Presiding
January 2, 2018
OPINION Before QUINN, C.J., and CAMPBELL, and PIRTLE, JJ.
For the want of a nail the shoe was lost, For the want of a shoe the horse was lost, For the want of a horse the rider was lost, For the want of a rider the battle was lost, For the want of a battle the kingdom was lost, And . . . all for the want of a nail.
― Benjamin Franklin
Relator contends that for want of an “n” the due process principle of reasonable
diligence in effecting service of process should be lost. We disagree. Relator, FDB Pools, Inc., d/b/a Amarillo Custom Pools, brings this original
mandamus proceeding seeking to compel the Honorable Phil N. Vanderpool to vacate
his order granting a new trial in Cause No. 38,794, in the 223rd District Court in and for
Gray County, Texas, following the entry of a default judgment against the Real Party in
Interest, Krisu Hospitality, LLC. By two arguments, FDB Pools contends the order
granting a new trial was inappropriate because (1) the trial court lacked both a factual and
legal basis for granting a new trial and (2) the order failed to set out in reasonable detail
the court’s justification for issuing that order.
BACKGROUND
FDB Pools constructed a swimming pool at Krisu’s newly constructed motel in
Pampa, Gray County, Texas, on behalf of M&L Builders, Inc. When M&L failed to make
payment as required by its contractual arrangement, FDB Pools filed a document entitled
Affidavit Claiming Lien, claiming a mechanic’s and materialmen’s lien against the Gray
County property and the retainage funds being held by Krisu. Thereafter, on March 3,
2017, FDB Pools filed suit against Krisu and M&L seeking the recovery of sums due and
execution of the liens against the property and retainage funds.
At the time suit was filed, FDB Pools requested the issuance of service of citation
as to Krisu “by serving its registered agent PIYUSH PATEL, 6 SHINECOCK DR.,
AMARILLO, TEXAS, 79124,” because that was the address of the registered agent as
maintained by the Texas Secretary of State. The actual address was 6 Shinnecock Dr.
(with two “n”s), as opposed to 6 Shinecock Dr. (with one “n”). Without attempting to
personally serve the registered agent at that address, FDB Pools’s process server
“concluded” that the address did not exist because a search of the Potter-Randall
2 Appraisal District’s website yielded no results.1 Based on the process server’s conclusion
that the address did not exist, FDB Pools filed an amended petition seeking service of
process as to Krisu by serving the Texas Secretary of State pursuant to the provisions of
section 5.251 of the Texas Business Organizations Act. That act provides as follows:
The secretary of state is an agent of an entity for purposes of service of process, notice or demand on the entity if:
(1) The entity is a filing entity or a foreign filing entity and;
(A) The entity fails to appoint or does not maintain a registered agent in this state; or
(B) The registered agent of the entity cannot with reasonable diligence be found at the registered office of the entity; . . . .
TEX. BUS. ORGS. CODE ANN. § 5.251 (West 2012) (Emphasis added).
When Krisu did not timely file an answer after service of process upon the
Secretary of State, FDB Pools requested and obtained a default judgment for sums
allegedly due. FDB Pools did not seek foreclosure of a mechanic’s and materialmen’s
lien on the property or the retainage. Thereafter, Krisu timely filed its Motion for New
Trial, alleging FDB Pools’s process server failed to use reasonable diligence in his
attempts to serve its registered agent. Following a hearing on the merits of Krisu’s motion
for new trial, the trial court entered its order granting a new trial and specifically finding
(1) Krisu “was not properly served” and (2) there was “good cause” to vacate the default
judgment. By this mandamus proceeding, FDB Pools seeks to have this court order the
trial judge to vacate the order granting a new trial and reinstate the default judgment.
1 The website of the Potter-Randall Appraisal District is www.prad.org. It should be noted that a
property search “By Owner,” using the name of the registered agent, Piyush Patel, yields Property ID No. R-044-3700-3155-0, with the address: 6 Shinnecock Dr. 3 MANDAMUS STANDARD OF REVIEW
Mandamus is an extraordinary remedy granted only when a relator shows that the
trial court abused its discretion and that no adequate appellate remedy exists. In re H.E.B.
Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). A
relator bears the burden of proving these two requirements. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). To establish an abuse of discretion, the
relator must demonstrate the trial court acted unreasonably, arbitrarily, or without
reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). To establish no adequate remedy by appeal, the
relator must show there is no adequate remedy at law to address the alleged harm and
that the act requested is a ministerial act, not involving a discretionary or judicial decision.
State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007) (orig. proceeding). Furthermore, in order to establish a ministerial act,
a relator must also show (1) a legal duty to perform; (2) a demand for performance; and
(3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).
ANALYSIS
By its first argument, FDB Pools maintains the trial court lacked both a factual and
legal basis for granting a new trial. It premises its argument on the idea that because
Krisu was required to maintain a registered office on file with the Secretary of State, and
because the registered office on file incorrectly spelled the street name with one “n”
instead of two, then it was relieved of any duty to use “reasonable diligence” in serving
Krisu because that address was a “fictitious, non-serviceable address.” FDB Pools
contends that Krisu’s suggestion that it “google” the address or use a different search
website to locate the address is not reasonable because any such requirement would
4 improperly “add to” its statutory burden when obtaining service of process by service upon
the Secretary of State. That argument is nonsense. The statutory burden is “reasonable”
diligence, nothing more, nothing less. Furthermore, reasonable diligence is not a difficult
concept to grasp. It is certainly something more than plugging an address into one
website, obtaining no result, and then just “concluding” that the address is fictitious and
non-existent.
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-17-00443-CV ________________________
IN RE FDB POOLS, INC. D/B/A AMARILLO CUSTOM POOLS
Original Proceeding Arising Out of Proceedings before the 223rd District Court In and For Gray County, Texas Trial Court No. 38,794; Honorable Phil N. Vanderpool, Presiding
January 2, 2018
OPINION Before QUINN, C.J., and CAMPBELL, and PIRTLE, JJ.
For the want of a nail the shoe was lost, For the want of a shoe the horse was lost, For the want of a horse the rider was lost, For the want of a rider the battle was lost, For the want of a battle the kingdom was lost, And . . . all for the want of a nail.
― Benjamin Franklin
Relator contends that for want of an “n” the due process principle of reasonable
diligence in effecting service of process should be lost. We disagree. Relator, FDB Pools, Inc., d/b/a Amarillo Custom Pools, brings this original
mandamus proceeding seeking to compel the Honorable Phil N. Vanderpool to vacate
his order granting a new trial in Cause No. 38,794, in the 223rd District Court in and for
Gray County, Texas, following the entry of a default judgment against the Real Party in
Interest, Krisu Hospitality, LLC. By two arguments, FDB Pools contends the order
granting a new trial was inappropriate because (1) the trial court lacked both a factual and
legal basis for granting a new trial and (2) the order failed to set out in reasonable detail
the court’s justification for issuing that order.
BACKGROUND
FDB Pools constructed a swimming pool at Krisu’s newly constructed motel in
Pampa, Gray County, Texas, on behalf of M&L Builders, Inc. When M&L failed to make
payment as required by its contractual arrangement, FDB Pools filed a document entitled
Affidavit Claiming Lien, claiming a mechanic’s and materialmen’s lien against the Gray
County property and the retainage funds being held by Krisu. Thereafter, on March 3,
2017, FDB Pools filed suit against Krisu and M&L seeking the recovery of sums due and
execution of the liens against the property and retainage funds.
At the time suit was filed, FDB Pools requested the issuance of service of citation
as to Krisu “by serving its registered agent PIYUSH PATEL, 6 SHINECOCK DR.,
AMARILLO, TEXAS, 79124,” because that was the address of the registered agent as
maintained by the Texas Secretary of State. The actual address was 6 Shinnecock Dr.
(with two “n”s), as opposed to 6 Shinecock Dr. (with one “n”). Without attempting to
personally serve the registered agent at that address, FDB Pools’s process server
“concluded” that the address did not exist because a search of the Potter-Randall
2 Appraisal District’s website yielded no results.1 Based on the process server’s conclusion
that the address did not exist, FDB Pools filed an amended petition seeking service of
process as to Krisu by serving the Texas Secretary of State pursuant to the provisions of
section 5.251 of the Texas Business Organizations Act. That act provides as follows:
The secretary of state is an agent of an entity for purposes of service of process, notice or demand on the entity if:
(1) The entity is a filing entity or a foreign filing entity and;
(A) The entity fails to appoint or does not maintain a registered agent in this state; or
(B) The registered agent of the entity cannot with reasonable diligence be found at the registered office of the entity; . . . .
TEX. BUS. ORGS. CODE ANN. § 5.251 (West 2012) (Emphasis added).
When Krisu did not timely file an answer after service of process upon the
Secretary of State, FDB Pools requested and obtained a default judgment for sums
allegedly due. FDB Pools did not seek foreclosure of a mechanic’s and materialmen’s
lien on the property or the retainage. Thereafter, Krisu timely filed its Motion for New
Trial, alleging FDB Pools’s process server failed to use reasonable diligence in his
attempts to serve its registered agent. Following a hearing on the merits of Krisu’s motion
for new trial, the trial court entered its order granting a new trial and specifically finding
(1) Krisu “was not properly served” and (2) there was “good cause” to vacate the default
judgment. By this mandamus proceeding, FDB Pools seeks to have this court order the
trial judge to vacate the order granting a new trial and reinstate the default judgment.
1 The website of the Potter-Randall Appraisal District is www.prad.org. It should be noted that a
property search “By Owner,” using the name of the registered agent, Piyush Patel, yields Property ID No. R-044-3700-3155-0, with the address: 6 Shinnecock Dr. 3 MANDAMUS STANDARD OF REVIEW
Mandamus is an extraordinary remedy granted only when a relator shows that the
trial court abused its discretion and that no adequate appellate remedy exists. In re H.E.B.
Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). A
relator bears the burden of proving these two requirements. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). To establish an abuse of discretion, the
relator must demonstrate the trial court acted unreasonably, arbitrarily, or without
reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). To establish no adequate remedy by appeal, the
relator must show there is no adequate remedy at law to address the alleged harm and
that the act requested is a ministerial act, not involving a discretionary or judicial decision.
State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007) (orig. proceeding). Furthermore, in order to establish a ministerial act,
a relator must also show (1) a legal duty to perform; (2) a demand for performance; and
(3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).
ANALYSIS
By its first argument, FDB Pools maintains the trial court lacked both a factual and
legal basis for granting a new trial. It premises its argument on the idea that because
Krisu was required to maintain a registered office on file with the Secretary of State, and
because the registered office on file incorrectly spelled the street name with one “n”
instead of two, then it was relieved of any duty to use “reasonable diligence” in serving
Krisu because that address was a “fictitious, non-serviceable address.” FDB Pools
contends that Krisu’s suggestion that it “google” the address or use a different search
website to locate the address is not reasonable because any such requirement would
4 improperly “add to” its statutory burden when obtaining service of process by service upon
the Secretary of State. That argument is nonsense. The statutory burden is “reasonable”
diligence, nothing more, nothing less. Furthermore, reasonable diligence is not a difficult
concept to grasp. It is certainly something more than plugging an address into one
website, obtaining no result, and then just “concluding” that the address is fictitious and
non-existent. Nothing in the record reflects that FDB Pools or its process server ever
tried to personally serve Krisu at the Shinnecock address, or that it did anything to
discover the location of Shinnecock Drive, other than to search one of many available
websites—and even then, not a “location” website. In today’s world of the information
super-highway with multiple mapping or location websites available, we cannot say the
trial court abused its discretion in concluding that, under the facts of this case, the process
server did not use “reasonable diligence” to secure proper service of process upon Krisu.
Where a defendant has not been properly served with citation, a default judgment cannot
be sustained. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 884-85
(Tex. 1985) (per curiam). Because there is both a factual and legal basis for the trial court
to grant a new trial, it did not abuse its discretion in doing so. FDB Pools’s first argument
is rejected.
By its second argument, FDB Pools maintains the trial court’s order granting a new
trial fails to set out in reasonable detail the court’s justification for issuing that order. The
trial court’s order, in its entirety, provides as follows:
On July 20, 2017, the Court considered the Defendant Krisu Hospitality LLC’s Amended Motion for a New Trial, the response thereto, and the evidence adduced at the hearing, and enters the following findings:
(1) Defendant Krisu Hospitality, LLC was not properly served with this suit.
(2) There is good cause to vacate the default judgment. 5 IT IS ORDERED THAT Defendant Krisu Hospitality, LLC’s Amended Motion for a New Trial is GRANTED based on the findings herein and in the interests of justice.
As FDB Pools correctly points out in its brief, the Texas Supreme Court has held
that in granting a new trial in a jury case, a trial court cannot set aside an otherwise valid
judgment by merely clothing it under the vague justification of “in the interests of justice.”
See In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204, 211-12 (Tex. 2009).
Assuming the principles of the Las Colinas case are even applicable to a new trial in a
default judgment entered by a trial court after a bench trial, the order here does not rely
solely on the concept of “in the interests of justice.” Here, the trial court makes the
express finding that Krisu was “not properly served” and that “good cause” exists to justify
vacating the prior default judgment. Accordingly, FDB Pools’s second argument is
rejected.
CONCLUSION
Because the trial court did not abuse its discretion in granting Krisu’s motion for
new trial, FDB Pools’s petition for writ of mandamus is denied.
Per Curiam