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Campus Investments, Inc. v. Cullever

Supreme Court of Texas
Oct 15, 2004
144 S.W.3d 464 (Tex. 2004)

Summary

holding in default judgment case that certification by the Secretary of State conclusively establishes there has been proper citation and service, even if the secretary of state's certificate reflects that the process was returned undelivered

Summary of this case from Capital Credit Inc. v. Mainspring Am., Inc.

Opinion

No. 03-0819.

September 3, 2004. Rehearing Denied October 15, 2004.

Petition for review from the Houston Court of Appeals.

George W. Vie III, Mills Shirley L.L.P., Galveston, for petitioner.

Bradford Neal Oesch, Harold B. Jarnigan Jr., Bradford N. Oesch, P.C., Houston, for respondent.


The evidence at the trial of this bill of review showed that a certificate of service from the Secretary of State was on file ten days before the underlying default judgment was granted, but citation and return were not. See Tex.R. Civ. P. 107. Relying on its opinion in G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813 (Tex.App.-Houston [1st Dist.] 1996, no writ), the First Court of Appeals held this was sufficient. 141 S.W.3d 641. Petitioner points out that this opinion conflicts with the Sixth Court of Appeals' opinion to the contrary in Onyx TV v. TV Strategy Group, LLC, 990 S.W.2d 427 (Tex.App.-Texarkana 1999, no pet.). Finding the First Court's analysis correct, we approve the former, disapprove the latter, and affirm.

Anthony Sean Cullever and Kevin Michael Els brought suit alleging they suffered injuries during a robbery that took place at the adult book store where they allege they were employees of Campus Investments, Inc. After several unsuccessful attempts to serve the latter's registered agent, they requested service on the Secretary of State. Tex. Bus. Corp. Act art. 2.11, § B. The Secretary subsequently issued a certificate that he had received and forwarded a copy of the citation and Second Amended Original Petition to Campus by certified mail, which was returned marked "Attempted — Not Known."

Rule 107 prohibits a default judgment until citation and proof of service have been on file for ten days. Tex.R. Civ. P. 107. In Whitney v. L L Realty Corp., we reversed a default judgment because the record included proof of service on the Secretary of State, but not a certificate that the Secretary had forwarded process to the defendant. 500 S.W.2d 94, 95-96 (Tex. 1973). There was such a certificate in Capitol Brick, Inc. v. Fleming Mfg. Co., so we held that "[a]bsent fraud or mistake, the Secretary of State's certificate is conclusive evidence that the Secretary of State, as agent of [the defendant], received service of process for [the defendant] and forwarded the service as required by the statute." 722 S.W.2d 399, 401 (Tex. 1986); see also TEX. BUS. CORP. ACT art. 9.05, § A (providing that certificates issued by the Secretary are prima facie evidence of facts recited therein).

The First Court of Appeals interpreted Capitol Brick to dispense with any requirement that the default judgment record include the citation and return. 141 S.W.3d 641; G.F.S. Ventures, 934 S.W.2d at 818. The Sixth Court of Appeals noted, however, that without the citation it will be impossible to tell whether the defendant was informed of the many details necessary to respond to the lawsuit. Onyx TV, 990 S.W.2d at 430-31; see Tex.R. Civ. P. 99 (requiring citation to contain 12 discrete items, including time when answer is due and warning regarding default).

We agree with the First Court. When substituted service on a statutory agent is allowed, the designee is not an agent for serving but for receiving process on the defendant's behalf. See Capitol Brick, 722 S.W.2d at 401; World Distribs. v. Knox, 968 S.W.2d 474, 479 (Tex.App.-El Paso 1998, no pet.). A certificate like the one here from the Secretary of State conclusively establishes that process was served. Capitol Brick, 722 S.W.2d at 401. As the purpose of Rule 107 is to establish whether there has been proper citation and service, the Secretary's certificate fulfills that purpose.

We recognize that service of a defective citation through substituted service on the Secretary of State could mislead a defendant and lead to an improper default judgment. In such cases, a defendant may bring a bill of review and establish those facts. Caldwell v. Barnes, 975 S.W.2d 535, 537, 539 (Tex. 1998) (holding affidavits filed in bill of review proceeding corroborating lack of service raised fact question for trial). But Campus was not misled here because — as it had failed to update addresses for its registered agent and registered office — it never received anything the Secretary sent. Accordingly, Campus was negligent in failing to comply with its statutory duties. See, e.g., Tex. Bus. Corp. Act arts 2.10, 2.10-1, 8.09. We hold there is some evidence to support the trial court's denial of the bill of review. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam) (holding that bill of review claimant must show prior judgment did not result from own fault or negligence).

Campus also asserts that the Second Amended Original Petition did not allege a "registered office." We disagree, as the pleading alleged the corporation's registered agent "could not be found at the registered office located at 4920 Center, Houston, Harris County, Texas 77007." According to the Secretary's affidavit, this was the address to which he directed process.

Accordingly, without hearing oral argument, we grant the petition for review, and affirm the judgment of the court of appeals. Tex.R.App. P. 59.1.


Summaries of

Campus Investments, Inc. v. Cullever

Supreme Court of Texas
Oct 15, 2004
144 S.W.3d 464 (Tex. 2004)

holding in default judgment case that certification by the Secretary of State conclusively establishes there has been proper citation and service, even if the secretary of state's certificate reflects that the process was returned undelivered

Summary of this case from Capital Credit Inc. v. Mainspring Am., Inc.

holding that when bill of review plaintiffs are properly served with process, they must show they were not at fault or negligent in allowing a default judgment to be rendered

Summary of this case from Caldwell v. Barnes

holding bill-of-review plaintiff not served with process because of failure to update the address of registered agent for service of process was not entitled to bill-of-review relief based on own fault or negligence

Summary of this case from Nussbaum v. Builders Bank

holding bill-of-review plaintiff not served with process because of failure to update the address of registered agent for service of process was not entitled to bill-of-review relief based on own fault or negligence

Summary of this case from Nussbaum v. Builders Bank

holding bill-of-review plaintiff not served with process not entitled to bill-of-review relief based on own fault or negligence

Summary of this case from Nussbaum v. Builders Bank

holding that "[w]hen substituted service on a statutory agent is allowed, the designee is not an agent for serving but for receiving process on the defendant's behalf"

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holding a certificate from the Secretary of State conclusively established that process was served

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holding in bill of review proceeding that Secretary of State certificate that process was forwarded per statute is sufficient proof of service even if defendant never received it

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holding that Secretary of State's certificate of service fulfills Rule 107's purpose of ensuring that there has been proper citation and service

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holding service on Secretary of State proper; Campus could not complain about not receiving forward from Secretary of State after proper service because it did not update address

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concluding defendant negligent in failing to follow statutory directives

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concluding some evidence supported trial court's denial of bill of review when plaintiff's failure to update address of registered office and agent resulted in not receiving notice of judgment

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concluding failure to update address as required by statute is negligence barring relief by bill of review

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concluding failure to update addresses as required by statute is negligence barring relief by bill of review

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affirming the trial court's denial of a bill of review where the petitioner never received service that was properly sent by the Texas Secretary of State because the petitioner was negligent in failing to update the addresses for its registered agent and registered office

Summary of this case from Mabon Ltd. v. Afri–Carib Enters., Inc.

affirming the trial court's denial of a bill of review where the petitioner never received service that was properly sent by the Texas Secretary of State because the petitioner was negligent in failing to update the addresses for its registered agent and registered office

Summary of this case from Mabon Ltd. v. Afri-Carib Enters., Inc.

affirming denial of a bill of review when petitioner never received service that was properly sent by the Texas Secretary of State because petitioner was negligent in failing to update addresses for its registered agent and registered office

Summary of this case from Barnes v. Deadrick

affirming denial of a bill of review when petitioner never received service that was properly sent by the Texas Secretary of State because petitioner was negligent in failing to update addresses for its registered agent and registered office

Summary of this case from Barnes v. Deadrick

In Cullever, after several attempts to serve the defendant's registered agent failed, the plaintiffs served process on the Texas Secretary of State.

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In Cullever, after several unsuccessful attempts to personally serve the defendant's registered agent, the plaintiffs requested substitute service on the registered agent via the Secretary of State.

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stating that certificate from secretary of state conclusively establishes that process was served

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stating that certificate from secretary of state conclusively establishes that process was served

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In Cullever, the supreme court held a default judgment was proper where the secretary of state's certificate recited it had received a copy of the citation and plaintiff's petition and had forwarded them by certified mail, but the process had been returned with the notation "Attempted—Not Known."

Summary of this case from SRMOF II 2012-1 Tr., U.S. Bank Tr. v. Alaimo

In Cullever, the supreme court stated that the bill of review petitioner could not have been misled by a defective citation when, because of its own negligence in failing to comply with its statutory duties to update the addresses for its registered agent and registered office, it never received the process from the secretary of state.

Summary of this case from SRMOF II 2012-1 Tr., U.S. Bank Tr. v. Alaimo

In Cullever, the corporate defendant was statutorily required to have its current address on file with the Secretary of State. Cullever, 144 S.W.3d at 466;seeTex.

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Case details for

Campus Investments, Inc. v. Cullever

Case Details

Full title:CAMPUS INVESTMENTS, INC., Petitioner v. Anthony Sean CULLEVER and Kevin…

Court:Supreme Court of Texas

Date published: Oct 15, 2004

Citations

144 S.W.3d 464 (Tex. 2004)

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