Opinion
No. 05-04-00044-CV
Opinion Filed April 27, 2005.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-2164-03.
Reverse and Remand.
Before BRIDGES, RICHTER, and LANG.
MEMORANDUM OPINION
Employers Reinsurance Corporation (ERC) brings a restricted appeal from a default judgment in favor of American Southwest Insurance Managers, Inc. (ASIMI) in a contract case. In three issues, ERC contends the trial court erred in granting: (1) the default judgment because it did not have jurisdiction, (2) damages because there is no reporter's record of an evidentiary hearing, and (3) incorrect rates for pre-judgment and post-judgment interest. We agree that the trial court was without jurisdiction to render the default judgment. Accordingly, we do not reach ERC's issues regarding the granting of damages and interest, both of which ASIMI concedes, in its brief, were granted improperly by the trial court. We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
I. Factual and Procedural Background
In its original petition, ASIMI described defendant as follows:
Defendant, Employers Reinsurance Corporation, is a Missouri corporation with its home office in Overland Park, Kansas and is authorized to do business in Texas. Defendant may be served with process through its attorney for service, Donna J. Allen, 16479 Dallas Parkway, Suite 710, Addison, Texas 75001.
The citation for personal service is addressed to "Employers Reinsurance Corp by serving Donna J Allen." The sheriff's return indicates "Donna J Allen Employers Reinsurance Corp." was served citation.
ERC failed to answer or appear in the trial court. The trial court granted ASIMI's motion for default judgment. ERC filed no postjudgment motions or requests for findings of fact or conclusions of law, but did file a restricted appeal 91 days after default judgment was signed. On appeal, ERC asserts that the trial court lacked jurisdiction to grant default judgment because the record does not show that ERC was served through its officer or registered agent.
II. Standard of Review
ERC may file a restricted appeal if (1) it filed notice of restricted appeal within six months of judgment, (2) it was a party to the underlying suit, (3) it did not participate in the hearing resulting in the judgment on appeal and did not file timely postjudgment motions or requests for findings of fact and conclusions of law, and (4) it showed error apparent on the face of the record. TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The restriction on the scope of a restricted appeal(formerly writ of error) is that the error must appear on the face of the record. See Norman Communications v. Texas Eastman, 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Alexander, 134 S.W.3d at 849.
III. Applicable Law on Service of Process
It is firmly established in this state that a default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). For the trial court to obtain jurisdiction over a foreign corporation, the record must affirmatively show a strict compliance with the provided mode of service. See Texaco, Inc. v. McEwen 356 S.W.2d 809, 813, (Tex.Civ.App.-Dallas 1962, writ ref'd n.r.e.). The Texas Business Corporation Act article 8.10(A) provides that:
The president and all vice presidents of a foreign corporation authorized to transact business in this State and the registered agent so appointed by a foreign corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.
Tex. Bus. Corp. Act Ann. Art. 8.10 (Vernon 1980). This statute provides that the president, vice presidents and the registered agent of a corporation are the persons who may be served with citation on behalf of a corporation. Whether the person served was in fact such an agent must be affirmatively shown before default judgment can be proper. White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex.Civ.App.-Dallas 1963, no writ). Specifically, the return of service has long been considered prima facie evidence of the facts regarding service. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam).
IV. Discussion
At issue is whether there is error on the face of the record regarding proper service of ERC. In this case, the petition, the citation and the officer's return do not identify Donna J. Allen as an "officer of the corporation" or the "registered agent" for ERC. The petition refers to her as the "attorney for service," the citation addresses "Employer Reinsurance Corp by serving Donna J Allen," and the sheriff's return lists her name and the corporation's name. However, there is no designation in the record that shows that Donna J. Allen is an individual authorized to receive service on behalf of ERC in compliance with article 8.10 of the business corporation act.
The designation in the return of service of an individual's authority to receive service on behalf of a corporation is crucial to showing the corporation was properly served. The supreme court has said, "A return showing delivery of process to a vice-president or president, as authorized by applicable statute, is prima facie evidence that the person served is in fact the officer as designated. It is not necessary for either the petition or citation to designate the officer to be served by name if the face of the record affirmatively shows the person's authority." Pleasant Homes, Inc. v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989) (per curiam) (emphasis added); see also Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789, 793 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (holding that return showing service on "James Barker" does not establish that he was defendant's agent or that Barker CATV Construction, Inc. was served).
In Primate Construction, Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (per curiam), the supreme court considered the defective service in a case where information in the citation conflicted with the information recited in the sheriff's return. The citation indicated that plaintiffs' second amended petition was attached, which included Primate Construction as a defendant in the suit. Id. at 152. The return recited that Primate Construction was served with a copy of the plaintiffs' original petition, which did not name Primate as a party to the suit. Id. When Primate Construction did not answer, the trial court entered a default judgment. Id. The supreme court found the facts of service as recited in the return controlling and that proper service on Primate Construction had not been affirmatively shown. Id. at 153. Accordingly, the supreme court found error on the face of the record and reversed the judgment of the court of appeal upholding the default judgment. Id.
In this case, we have the person's name and the corporation's name on the return of service, but not a showing of her authority as either a president, vice president or registered agent to accept service on behalf of ERC. The reference in the petition to Donna J. Allen as "attorney for service" is not sufficient to affirmatively show that ERC was served through its officer or its registered agent and, therefore, the granting of the default judgment was improper. Id. at 153; see also White Motor Co., 373 S.W.2d at 865.
V. Conclusion
Having determined there is error on the face of the record regarding proper service on ERC, we find the trial court lacked jurisdiction to enter the default judgment against ERC. Finding this error dispositive of this appeal, we do not need to address appellant's remaining issues. We reverse the trial court's judgment and remand this case for further proceedings.