Maddison Dual Fuels, Inc. v. Southern Union Co.

944 S.W.2d 735, 1997 WL 205356
CourtCourt of Appeals of Texas
DecidedMay 22, 1997
Docket13-95-494-CV
StatusPublished
Cited by11 cases

This text of 944 S.W.2d 735 (Maddison Dual Fuels, Inc. v. Southern Union Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maddison Dual Fuels, Inc. v. Southern Union Co., 944 S.W.2d 735, 1997 WL 205356 (Tex. Ct. App. 1997).

Opinion

OPINION

RODRIGUEZ, Justice.

Maddison Dual Fuels, Inc. (“Maddison”) appeals from a no-answer default judgment which resulted after Maddison failed to answer in a suit for breach of a purchase agreement. We reverse and remand.

BACKGROUND

Southern Union Co. (“Southern”) made a purchase order to Maddison for 123 fuel conversion kits to be used by the Rio Grande Valley School Districts for converting school bus engines to run on natural gas. In that purchase order, Southern specified that

Equipment orders from each district will be processed by Southern Union Gas and forwarded as delivery requests to Maddi-son Dual Fuels. Maddison will ship the order to Southern Union for further delivery to the district. The district will be billed upon deliveiy of the equipment. Southern Union will in turn pay Maddison for each order upon receipt of payment from the district.

Maddison confirmed the purchase order for the kits at a price of $2,575 each, stating “We accept the terms of [your] order.”

Nevertheless, after agreeing to Southern’s terms, Maddison began shipping the kits without first receiving delivery requests from Southern. On each occasion, Southern complained to Maddison about its noncomplianee with the purchase agreement, but was in *737 structed by Maddison to simply store the goods in a warehouse until the school districts actually made their purchase requests.

Several months later, one of the school districts chose not to proceed with the fuel system conversion of its bus fleet, and it became apparent to Southern that it was going to be left with excess kits in storage. When asked what to do with the exeess kits, Maddison informed Southern that it expected payment for all the kits that had been shipped. Southern attempted to return the goods, but Maddison refused to accept them.

Southern thus brought the present suit pursuant to the Uniform Declaratory Judgments Act, Chapter 87 of the Texas Civil Practice and Remedies Code, requesting the trial court to declare

• that the purchase agreement was valid,
• that Maddison had not performed all the conditions precedent to entitle it to payment of any additional amounts pursuant to the terms of the purchase agreement,
• that Southern had no obligation to pay Maddison for any of the goods in question absent final delivery of the goods to one of the school districts and payment for those goods by the school districts, and
• that Southern was not liable to Maddison for the purchase price of the goods or for any other claims.

Southern also sought recovery of its storage expenses and attorney’s fees.

The citation was originally issued May 24, 1995, and service was attempted on Maddi-son’s registered agent pursuant to the Original Petition, which states that Maddison “may be served with process by serving its registered agent, Barnard E. Brook, at 13313 S.W. Freeway, # 290, Sugarland, Texas 77478.” Service was unsuccessful due to a “bad address” as noted on the Diligence of Service form. The form names Maddison Dual Fuels, Inc. as the subject, but fails to name the registered agent upon whom service was attempted. The officer’s return of service is blank with the exception of the stamped notation of the constable’s address.

Citation was next issued on the Secretary of State’s office on June 7, 1995, and the certificate from the Secretary of State shows that process, attempted to the same address as before, was returned on June 22 bearing the notation “no such number.”

Upon Maddison’s failure to appear, the court concluded that Maddison had been duly and legally cited, and wholly made default. The trial court made all four declarations requested in Southern’s petition and further ordered that Southern recover $2,250 in storage costs and $5,000 in attorney’s fees.

JURISDICTION

By its first point of error, Maddison argues that the judgment is defective because it does not resolve all issues in controversy between the parties. Specifically, Maddison claims that the judgment is interlocutory because Southern was only awarded its costs up to the time of judgment, leaving storage costs which have accrued since the judgment unresolved. Maddison further argues that the judgment is not final because the court did not make a ruling on the ownership of the conversion kits. We hold that the trial court’s judgment is final.

The determination of finality of a judgment is two-part. First, if the case is a conventional case, tried on the merits, we apply the presumption of finality. Coastal Ref. & Mktg., Inc. v. Latimer, 838 S.W.2d 570, 572 (Tex.App. — Corpus Christi 1992, writ denied)(citing North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966)). Second, if the judgment contains a Mother Hubbard clause, any question of finality is further dispelled. Id. Here, there is no presumption of finality because the case was tried by default. There is, however, a statement in the judgment that “All relief not granted herein is expressly denied.” This Mother Hubbard clause made the judgment final by disposing of all parties and all claims. Cf. Schlipf v. Exxon Corp., 644 S.W.2d 453 (Tex.1982)(the Mother Hubbard clause, even when used in a summary judgment ease, expressly disposes of all parties and claims and constitutes a final judgment). Furthermore, the subject of the lawsuit was not the ownership of the kits. The suit was filed for a determination of whether *738 the purchase agreement was violated. We overrule appellant’s first point of error.

INADEQUATE SERVICE OF PROCESS

By its second point of error, Maddison contends that the default judgment was erroneously entered because Southern faded to exercise reasonable diligence in attempting to serve Maddison before resorting to substituted service on the Secretary of State. We agree.

Article 2.11 of the Texas Business Corporation Act provides that a domestic corporation, which maintains a registered agent within the state, may be served by delivering process to the president, any vice president, or the registered agent of the corporation. TexBus.CoRpAct Ann. art. 2.11(A) (Vernon 1980). In that regard, whenever a corporation fails 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. TexJBus.CoepAct Ann. art. 2.11(B) (Vernon 1980).

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944 S.W.2d 735, 1997 WL 205356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maddison-dual-fuels-inc-v-southern-union-co-texapp-1997.