Onyx Tv v. Tv Strategy Group, LLC

990 S.W.2d 427, 1999 Tex. App. LEXIS 2171, 1999 WL 162956
CourtCourt of Appeals of Texas
DecidedMarch 26, 1999
Docket06-98-00156-CV
StatusPublished
Cited by14 cases

This text of 990 S.W.2d 427 (Onyx Tv v. Tv Strategy Group, LLC) 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
Onyx Tv v. Tv Strategy Group, LLC, 990 S.W.2d 427, 1999 Tex. App. LEXIS 2171, 1999 WL 162956 (Tex. Ct. App. 1999).

Opinions

OPINION

Opinion by Justice

GRANT.

Onyx Television appeals a default judgment granted in favor of T.V. Strategy Group (“TVSG”). TVSG sued Onyx on a sworn account, on breach of contract, and for quantum meruit. Onyx contends (1) the trial court did not have jurisdiction to enter a default judgment against Onyx because TVSG’s petition did not plead sufficient facts to invoke substituted service and the Whitney certificate1 was insufficient to confer jurisdiction on the trial court, (2) the default judgment was void because the citation did not contain the address of the clerk and the location of the court as required by Rule 99 of the Texas Rules of Civil Procedure, and (3) the default judgment was void, because the citation was not on file with the court as required by Rule 107 of the Texas Rules of Civil Procedure. Onyx requests we review the case by a restricted appeal.2

On March 25, 1998, TVSG filed an original petition in the County Court at Law against Onyx alleging that (1) Onyx Corporation was a corporation organized and existing under the laws of Germany, with its principal place of business in Dortmund, Germany, (2) Onyx does not maintain a regular place of business in Texas or a registered agent for service of process, (3) Onyx entered into a contract with TVSG, a Texas resident, and that TVSG performed the contract in Texas in part, and (4) the lawsuit arose out of business done in Texas and to which Onxy was a party.3 The county clerk issued the citation on the same day.

In a certified letter dated April 1, 1998, TVSG enclosed two copies of the original citation and the original petition and requested the Secretary of State send the process to Onyx at its home office, which was listed in the certified letter pursuant to the Texas long-arm statute.4 As evidenced by a Whitney certificate issued by the Secretary of State on May 11, 1998, the Secretary of State certified that, according to its records, it had received two copies of the citation and had forwarded a copy of both by registered mail, return receipt requested, to Onxy TV, Emil-Segge-Strasse 80, 4427 Dortmund, Germany. This is the address Onyx admits is its home address in its brief.

[429]*429The Whitney certificate and a copy of the letter requesting substituted service were filed with the court on May 14, 1998, but the citation was never filed with the court. On May 27, 1998, after reading the pleadings and the papers on file, the trial court entered a default judgment against Onyx. The address Onyx lists in its brief as its proper address is the same as the one to which the Secretary of State forwarded the service of process and is also the same as the one to which the trial court mailed a Notice of Entry of Judgment and a copy of the default judgment.

A restricted appeal5 to the court of appeals is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment.6 It is not available to give a party who suffers an adverse judgment at its own hands another opportunity to have the merits of the case reviewed.7 To appeal by restricted appeal, the petitioner must file the notice of appeal within six months after the judgment is signed; be a party to the suit; not have participated in the actual trial of the case in the trial court; and show error apparent from the face of the record.8 The only issue before us is whether error appears on the face of the record.

In order to sustain a default judgment which is under direct attack, it is essential that there be strict compliance with the rules relating to the issuance of citation, the manner and mode of service, and the return of process.9 The plaintiff bears the burden of affirmatively showing strict compliance.10 His failure to meet this burden renders the attempted service invalid and of no effect.11

There are no presumptions favoring valid issuance, service, and return of citation.12 This applies to any inference of jurisdictional facts, such as personal jurisdiction under the long-arm statute.13 If jurisdiction of the court to render the judgment does not appear on the face of the record, the judgment must be reversed.14

The difficult issue in this case is whether the trial court erred in entering a default judgment, because the record does not reflect that the citation was on file at the time it was entered. Rule 107 of the Texas Rules of Civil Procedure provides that no default judgment can be granted in any cause until the citation has been on file [430]*430with the clerk of the court for ten days.15 The only case directly in point is GFS Ventures, Inc. v. Harris, 934 S.W.2d 813, 819 (Tex.App.-Houston [1st. Dist.] 1996, no writ). In the Harris case, the Houston Court of Appeals held that when the Secretary of State’s certificate showing proof of service had been on file for more than ten days before the default judgment was granted, that was sufficient to comply with the requirement of Rule 107. In that opinion, the court cited the Texas Supreme Court’s holding in Capitol Brick, Inc. v. Fleming Mfg. Company, 722 S.W.2d 399, 401 (Tex.1986), in which the Supreme Court held that proof of service under the long-arm statute can be satisfied by a certificate from the Secretary of State. In the Capitol Brick case, the issue was whether the Texas long-arm statute16 required personal service on the Secretary of State as opposed to someone within the office designated to accept service. Id. at 400. The Supreme Court found that the mode of service on the Secretary of State bore no relationship to the objective of the long-arm statute which was to extend in personam jurisdiction in a manner reasonably calculated to give foreign defendants fair notice and an opportunity to be heard.17 The Supreme Court determined that the Secretary of State’s certificate was conclusive evidence that the Secretary of State received the service of process for the out-of-state defendant and forwarded the service as required by the statute. The court in Capitol Brick was not dealing with the ten day requirement for the citation to be on file, but rather, whether service of process had been shown. The Supreme Court stated in Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990), that it is a well-established rule that default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements.

The Harris case suggests that the Secretary of State’s certificate satisfies the requirement that the citation be on file for ten days prior to the rendition of the default judgment and the requirement of proper service of process.

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Onyx Tv v. Tv Strategy Group, LLC
990 S.W.2d 427 (Court of Appeals of Texas, 1999)

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Bluebook (online)
990 S.W.2d 427, 1999 Tex. App. LEXIS 2171, 1999 WL 162956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/onyx-tv-v-tv-strategy-group-llc-texapp-1999.