In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00211-CV ___________________________
RELIQ HEALTH TECHNOLOGIES, INC., Appellant
V.
RESURGENCE PARTNERS, LLC (ORGANIZED UNDER THE LAW OF THE STATE OF WASHINGTON) AND RESURGENCE PARTNERS, LLC (ORGANIZED UNDER THE LAW OF THE STATE OF WYOMING), Appellees
On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-330341-21
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
Appellant Reliq Health Technologies, Inc. filed this restricted appeal after the
trial court rendered a no-answer default judgment in favor of appellees Resurgence
Partners, LLC, a Washington entity, and Resurgence Partners, LLC, a Wyoming entity
(collectively, Resurgence). In three issues, Reliq contends that there is error apparent
on the face of the record because (1) there is no proof that the Texas Secretary of
State forwarded process to Reliq as required by the Texas long-arm statute, (2) there is
no proof that Reliq, a Canadian company, was served in accordance with the Hague
Convention, and (3) Resurgence’s jurisdictional allegations were insufficient, as a
matter of law, to bring Reliq under the purview of the long-arm statute. Because we
agree that the record does not affirmatively show that the Secretary of State
forwarded a copy of process to Reliq, we reverse the default judgment and remand
the case for further proceedings.
I. BACKGROUND
The underlying dispute concerns fraud and breach-of-contract claims1 asserted
by Resurgence against Reliq and its purported agent Giancarlo DeLio. Resurgence,
which claims to be a Dallas-based venture-capital firm, alleged that it was defrauded in
April 2016 when Reliq, a telemedicine-focused health technology company,
1 Reliq claims that Resurgence asserted only a fraud claim, not a breach-of- contract claim, against it. While we need not address this issue, we note that the default judgment expressly recites the trial court’s finding “that [Reliq] and [DeLio] breached their contract with [Resurgence].”
2 supposedly misrepresented its software capabilities. But according to Reliq,
Resurgence’s CEO Patrick Earles fabricated the purported business relationship
between Resurgence and Reliq as part of a scheme to defraud his own investors, one
of whom—Michael Urbach—obtained a $1.9 million judgment against Earles based
on his fraudulent misrepresentations.
In June 2021, Resurgence filed suit seeking declaratory and monetary relief
against Reliq and DeLio and solely nonmonetary declaratory relief against Urbach.
Because Resurgence’s claims for declaratory relief against Urbach involved the same
subject matter as Urbach’s previously filed lawsuit against Earles, the trial court
dismissed with prejudice Resurgence’s claims against Urbach pursuant to Rule 91a,
and we affirmed this dismissal. See generally Resurgence Partners, LLC v. Urbach,
No. 02-21-00418-CV, 2023 WL 2033945 (Tex. App.—Fort Worth Feb. 16, 2023, no
pet.) (mem. op.).
After Resurgence’s claims against Urbach were dismissed, the trial court
severed Resurgence’s claims against Reliq and DeLio into a new lawsuit.
In October 2022, Resurgence filed a motion for default judgment against Reliq
and DeLio. On December 8, 2022, following a hearing, the trial court granted
Resurgence a default judgment against Reliq and DeLio for $1,050,000 plus an
additional $10,000 in attorney’s fees. 2 This restricted appeal followed.
2 In February 2023, the trial court signed a corrected final judgment because the original judgment incorrectly recited Resurgence’s name as “Resurgent.”
3 II. DISCUSSION
A. The Standard for Restricted Appeals
A restricted appeal is a direct attack on a trial court’s judgment. Aero at Sp.
Z.O.O. v. Gartman, 469 S.W.3d 314, 315 (Tex. App.—Fort Worth 2015, no pet.). To
prevail on a restricted appeal, an appellant must establish that (1) it filed its notice of
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 post-judgment motions or
requests for findings of fact and conclusions of law, and (4) error is apparent on the
face of the record. See Tex. R. App. P. 26.1(c), 30; Clamon v. DeLong, 477 S.W.3d 823,
825 (Tex. App.—Fort Worth 2015, no pet.). The first three requirements are
necessary to invoke our restricted-appeal jurisdiction, but the fourth is not. Ex parte
E.H., 602 S.W.3d 486, 496–97 (Tex. 2020).
Additionally, “[w]hile ordinarily presumptions are made in support of a
judgment (including presumptions of due service of citation when the judgment so
recites), no such presumptions are made in a direct attack upon a [no-answer] default
judgment.” McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); U.S. Bank, N.A. v.
TFHSP LLC Series 6481, 487 S.W.3d 715, 718 (Tex. App.—Fort Worth 2016, no
pet.). The Texas Supreme Court has long “required that strict compliance with the
rules for service of citation affirmatively appear on the record in order for a default
judgment to withstand a direct attack.” Primate Constr. Inc. v. Silver, 884 S.W.2d 151,
4 152–53 (Tex. 1994) (noting that plaintiff’s responsibility of accomplishing service
“extends to seeing that service is properly reflected in the record” and holding that
there was error on face of the record because it did not affirmatively show proper
service); see also Bartonplace Condos. Homeowners Ass’n v. Keup, No. 03-14-00453-CV, 2016
WL 1294797, at *4 (Tex. App.—Austin Mar. 31, 2016, no pet.) (mem. op.) (reversing
default judgment because the record did not demonstrate that defendant was
amenable to service through the Secretary of State).
Whether service strictly complied with the statutes and rules is a question of
law that we review de novo. LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 866 (Tex.
App.—Fort Worth 2013, no pet.).
B. Analysis of the First Three Requirements
Regarding the first requirement, the record reflects that although Reliq did not
file its notice of restricted appeal within the six-month deadline set by Texas Rule of
Appellate Procedure 26.1(c), it filed its notice of restricted appeal and a proper motion
for extension within fifteen days after the six-month deadline.3 See Tex. R. App. P.
10.5(b), 26.1(c), 26.3, 30; FJR Sand, Inc. v. Essez Ins. Co., No. 01-16-00441-CV, 2016
3 The trial court signed the default judgment on December 8, 2022. Accordingly, Reliq’s notice of restricted appeal was due by June 9, 2023, and the fifteen-day extension deadline expired on June 24, 2023. See Tex. R. App. P. 26.1(c), 26.3; Verburgt v.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00211-CV ___________________________
RELIQ HEALTH TECHNOLOGIES, INC., Appellant
V.
RESURGENCE PARTNERS, LLC (ORGANIZED UNDER THE LAW OF THE STATE OF WASHINGTON) AND RESURGENCE PARTNERS, LLC (ORGANIZED UNDER THE LAW OF THE STATE OF WYOMING), Appellees
On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-330341-21
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
Appellant Reliq Health Technologies, Inc. filed this restricted appeal after the
trial court rendered a no-answer default judgment in favor of appellees Resurgence
Partners, LLC, a Washington entity, and Resurgence Partners, LLC, a Wyoming entity
(collectively, Resurgence). In three issues, Reliq contends that there is error apparent
on the face of the record because (1) there is no proof that the Texas Secretary of
State forwarded process to Reliq as required by the Texas long-arm statute, (2) there is
no proof that Reliq, a Canadian company, was served in accordance with the Hague
Convention, and (3) Resurgence’s jurisdictional allegations were insufficient, as a
matter of law, to bring Reliq under the purview of the long-arm statute. Because we
agree that the record does not affirmatively show that the Secretary of State
forwarded a copy of process to Reliq, we reverse the default judgment and remand
the case for further proceedings.
I. BACKGROUND
The underlying dispute concerns fraud and breach-of-contract claims1 asserted
by Resurgence against Reliq and its purported agent Giancarlo DeLio. Resurgence,
which claims to be a Dallas-based venture-capital firm, alleged that it was defrauded in
April 2016 when Reliq, a telemedicine-focused health technology company,
1 Reliq claims that Resurgence asserted only a fraud claim, not a breach-of- contract claim, against it. While we need not address this issue, we note that the default judgment expressly recites the trial court’s finding “that [Reliq] and [DeLio] breached their contract with [Resurgence].”
2 supposedly misrepresented its software capabilities. But according to Reliq,
Resurgence’s CEO Patrick Earles fabricated the purported business relationship
between Resurgence and Reliq as part of a scheme to defraud his own investors, one
of whom—Michael Urbach—obtained a $1.9 million judgment against Earles based
on his fraudulent misrepresentations.
In June 2021, Resurgence filed suit seeking declaratory and monetary relief
against Reliq and DeLio and solely nonmonetary declaratory relief against Urbach.
Because Resurgence’s claims for declaratory relief against Urbach involved the same
subject matter as Urbach’s previously filed lawsuit against Earles, the trial court
dismissed with prejudice Resurgence’s claims against Urbach pursuant to Rule 91a,
and we affirmed this dismissal. See generally Resurgence Partners, LLC v. Urbach,
No. 02-21-00418-CV, 2023 WL 2033945 (Tex. App.—Fort Worth Feb. 16, 2023, no
pet.) (mem. op.).
After Resurgence’s claims against Urbach were dismissed, the trial court
severed Resurgence’s claims against Reliq and DeLio into a new lawsuit.
In October 2022, Resurgence filed a motion for default judgment against Reliq
and DeLio. On December 8, 2022, following a hearing, the trial court granted
Resurgence a default judgment against Reliq and DeLio for $1,050,000 plus an
additional $10,000 in attorney’s fees. 2 This restricted appeal followed.
2 In February 2023, the trial court signed a corrected final judgment because the original judgment incorrectly recited Resurgence’s name as “Resurgent.”
3 II. DISCUSSION
A. The Standard for Restricted Appeals
A restricted appeal is a direct attack on a trial court’s judgment. Aero at Sp.
Z.O.O. v. Gartman, 469 S.W.3d 314, 315 (Tex. App.—Fort Worth 2015, no pet.). To
prevail on a restricted appeal, an appellant must establish that (1) it filed its notice of
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 post-judgment motions or
requests for findings of fact and conclusions of law, and (4) error is apparent on the
face of the record. See Tex. R. App. P. 26.1(c), 30; Clamon v. DeLong, 477 S.W.3d 823,
825 (Tex. App.—Fort Worth 2015, no pet.). The first three requirements are
necessary to invoke our restricted-appeal jurisdiction, but the fourth is not. Ex parte
E.H., 602 S.W.3d 486, 496–97 (Tex. 2020).
Additionally, “[w]hile ordinarily presumptions are made in support of a
judgment (including presumptions of due service of citation when the judgment so
recites), no such presumptions are made in a direct attack upon a [no-answer] default
judgment.” McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); U.S. Bank, N.A. v.
TFHSP LLC Series 6481, 487 S.W.3d 715, 718 (Tex. App.—Fort Worth 2016, no
pet.). The Texas Supreme Court has long “required that strict compliance with the
rules for service of citation affirmatively appear on the record in order for a default
judgment to withstand a direct attack.” Primate Constr. Inc. v. Silver, 884 S.W.2d 151,
4 152–53 (Tex. 1994) (noting that plaintiff’s responsibility of accomplishing service
“extends to seeing that service is properly reflected in the record” and holding that
there was error on face of the record because it did not affirmatively show proper
service); see also Bartonplace Condos. Homeowners Ass’n v. Keup, No. 03-14-00453-CV, 2016
WL 1294797, at *4 (Tex. App.—Austin Mar. 31, 2016, no pet.) (mem. op.) (reversing
default judgment because the record did not demonstrate that defendant was
amenable to service through the Secretary of State).
Whether service strictly complied with the statutes and rules is a question of
law that we review de novo. LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 866 (Tex.
App.—Fort Worth 2013, no pet.).
B. Analysis of the First Three Requirements
Regarding the first requirement, the record reflects that although Reliq did not
file its notice of restricted appeal within the six-month deadline set by Texas Rule of
Appellate Procedure 26.1(c), it filed its notice of restricted appeal and a proper motion
for extension within fifteen days after the six-month deadline.3 See Tex. R. App. P.
10.5(b), 26.1(c), 26.3, 30; FJR Sand, Inc. v. Essez Ins. Co., No. 01-16-00441-CV, 2016
3 The trial court signed the default judgment on December 8, 2022. Accordingly, Reliq’s notice of restricted appeal was due by June 9, 2023, and the fifteen-day extension deadline expired on June 24, 2023. See Tex. R. App. P. 26.1(c), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); see also Clopton v. Pak, 66 S.W.3d 513, 515–16 (Tex. App.—Fort Worth 2001, pet. denied) (concluding, under Texas Rule of Appellate Procedure 4.1(a), that the day the order was signed was not included in calculating the deadline for notice of appeal). Reliq filed its notice of appeal on June 20, 2023, and filed its motion to extend the time to file the notice of appeal the following day. Thus, both were timely filed. See Tex. R. App. P. 26.3.
5 WL 7104022, at *1 (Tex. App.—Houston [1st Dist.] Dec. 6, 2016, no pet.) (per
curiam) (mem. op.). Having granted Reliq’s motion to extend the deadline to file its
notice of restricted appeal, we conclude that the first requirement is satisfied. See Tex.
R. App. P. 10.5(b), 26.1(c), 26.3. With regard to the second requirement,
Resurgence’s petition listed Reliq as a defendant, so it was necessarily a party to the
underlying suit. As to the third requirement, the record reflects that Reliq did not
participate in the hearing on Resurgence’s motion for default judgment and did not
timely file any post-judgment motions. Accordingly, Reliq has met the three
requirements necessary to invoke our restricted-appeal jurisdiction.
C. Analysis of the Fourth Requirement: Error on the Face of the Record
In its first issue, Reliq argues that there is error on the face of the record
because it contains no proof of valid service. We agree.
Resurgence purported to serve Reliq pursuant to the Texas long-arm statute,
which provides that the Texas Secretary of State is an agent for service of process of a
nonresident defendant that engages in certain actions in the state. See Tex. Civ. Prac.
& Rem. Code Ann. § 17.044. Service of process on a nonresident defendant through
the long-arm statute involves two essential steps: (1) the plaintiff must properly serve
the Secretary of State with process and (2) the Secretary of State must forward process
to the nonresident defendant. Id. § 17.045; see Whitney v. L&L Realty Corp., 500
S.W.2d 94, 95 (Tex. 1973); Eco Gen. Contractors LLC v. Goodale, No. 02-18-00146-CV,
2019 WL 1179409, at *4 (Tex. App.—Fort Worth Mar. 14, 2019, no pet.) (mem. op.)
6 (“For purposes of obtaining a default judgment . . . , the record must affirmatively
show that the secretary of state forwarded a copy of process to the defendant.”).
Thus, to support a default judgment, the record must affirmatively show that the
Secretary of State forwarded a copy of the process to the defendant. Whitney, 500
S.W.2d at 95–97.
Here, the only evidence regarding service upon Reliq is a return of service
indicating that a citation and a copy of the petition were mailed to the Secretary of
State. Crucially, the record contains no evidence that the Secretary of State actually
forwarded a copy of the process to Reliq. Therefore, the record does not support the
default judgment. See id. at 96–97; Eco Gen. Contractors LLC, 2019 WL 1179409, at *4;
see also Fountain Powerboats, Inc. v. Speed Boats of Tex., LP, No. 05-13-00657-CV, 2014
WL 1483591, at *3 (Tex. App.—Dallas Apr. 15, 2014, no pet.) (mem. op.) (reversing
default judgment because “the record [did] not affirmatively demonstrate that the
secretary of state forwarded a copy of the citation and petition to appellant”).
Accordingly, we sustain Reliq’s first issue. Having done so, we need not
address its second or third issues. See Tex. R. App. P. 47.1.
7 III. CONCLUSION
Having sustained Reliq’s dispositive issue, we reverse the trial court’s default
judgment against Reliq and remand this case to the trial court for further
proceedings. 4
/s/ Dabney Bassel
Dabney Bassel Justice
Delivered: December 7, 2023
4 Based on its assertion that Resurgence failed to plead sufficient jurisdictional allegations to bring Reliq within the provisions of the long-arm statute, Reliq asks that we render judgment in its favor rather than remand the case for further proceedings. However, because Reliq was never properly served, it never entered a special appearance challenging the trial court’s exercise of personal jurisdiction. Thus, even assuming without deciding that Resurgence failed to plead sufficient jurisdictional allegations, we believe that remanding this case for further proceedings is appropriate to allow the trial court to decide, in the first instance, whether it has personal jurisdiction and to allow this determination to be based on evidence rather than mere allegations. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 (Tex. 2010) (instructing that when a plaintiff’s petition “is wholly devoid of jurisdictional facts,” it should “amend the pleading to include the necessary factual allegations” so that jurisdiction can “be decided based on evidence rather than allegations, as it should be”); see also In re J.A.J., No. 04-14-00684-CV, 2014 WL 7444340, at *3 (Tex. App.— San Antonio Dec. 31, 2014, no pet.) (mem. op.) (recognizing appellate courts’ “broad discretion” to remand a case for further proceedings rather than render judgment “when there is a probability that a case has not been fully developed for any reason” (citing In re J.E.H., 384 S.W.3d 864, 872 (Tex. App.—San Antonio 2012, no pet.))). Upon remand, Reliq can enter a special appearance, see Boyd v. Kobierowski, 283 S.W.3d 19, 24 (Tex. App.—San Antonio 2009, no pet.); see also Tex. R. Civ. P. 120a, 123, which will give the trial court the opportunity to determine whether it has personal jurisdiction in accordance with the established burden-shifting procedure, see Kelly, 301 S.W.3d at 658–59 (describing burden-shifting procedure for establishing or challenging personal jurisdiction).