Opinion
No. 04-03-00420-CV.
Delivered and Filed: March 31, 2004.
Appeal from the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2002-CI-14691, Honorable Martha Tanner, Judge Presiding.
The Honorable Frank Montalvo was the presiding judge of the 288th Judicial District Court, Bexar County, Texas in 2002. The Honorable Martha Tanner, presiding judge of the 166th Judicial District Court, however, granted the default judgment at issue in this matter.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Robert Morrow ("Morrow") files this restricted appeal to set aside a default judgment asserting that service was defective under the Texas Long Arm Statute. See Tex. Civ. Prac. Rem. Code Ann. §§ 17.041-17.044 (Vernon 1997), § 17.045 (Vernon Supp. 2004). We affirm.
Background
Rockwald Joint Venture I and Charles Krause (collectively, the "plaintiffs") sued Morrow, R. Jet Fellows, and United Western Development Corporation in a dispute regarding the distribution of proceeds from a real estate transaction.
The plaintiffs sued two additional defendants, Broadway National Bank and Rogers Title Company in their capacity as stakeholders. They were subsequently non-suited.
Plaintiffs' Original Petition ("original petition") alleged that Morrow "is a resident of the State of Nevada, and may be served at 4355 S. Durango Dr., Las Vegas, Nevada 89147." No form of substitute service was requested.
Plaintiffs' First Amended Original Petition ("amended petition"), alleged that:
Defendant Robert Morrow is a non-resident. The Secretary of State is the agent for service on Morrow pursuant to § 17.044, Tex. Civ. Prac. Rem. Code because Morrow engaged in business in Texas, Morrow does not maintain a regular place of business in Texas, Morrow does not have a designated agent for service of process, and this lawsuit arises out of Morrow's business in Texas. Morrow's home or home office address is 4700 Paradise Road, Las Vegas, Nevada 89109.
Citation directed to Morrow, together with a copy of the amended petition, was served on the Texas Secretary of State on November 4, 2002. Subsequently, the Secretary of State certified that the citation and amended petition were forwarded by certified mail, return receipt requested, to "Robert Morrow, 4700 Paradise Road, Las Vegas, NV 89109," on November 12, 2002, and that "the RETURN RECEIPT was received in this office dated November 14, 2002, bearing the Signature of Addressee's Agent" (emphasis in original).
After Morrow failed to appear or file an answer in the action, an interlocutory default judgment was entered against him on December 18, 2002. The judgment includes specific findings regarding compliance with the statutory requirements for service of process on Morrow pursuant to § 17.044 of the Texas Civil Practice Remedies Code ("Texas Long Arm Statute"). The judgment also recites that Morrow was served with process in the manner required by law and therefore, the trial court had personal jurisdiction over him. The interlocutory default judgment became a final judgment when the plaintiffs non-suited the remaining defendants. This restricted appeal followed.
Analysis
In one issue, Morrow alleges that service of the amended petition was faulty because the address provided to the Secretary of State for service under the Texas Long Arm statute was not the "home address" stated in the original petition as the address where Morrow could be served.
To successfully attack this default judgment by restricted appeal, Morrow must establish: 1) he filed the notice of appeal within six months of the date of judgment; 2) he was a party to the suit; 3) he did not participate at trial; and 4) a lack of jurisdiction apparent from the record that would vitiate the trial court's jurisdiction. See Tex.R.App.P. 26.1(c), 30; Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985). The plaintiff bears the burden to show strict compliance with the rules for issuance of citation and service of process. McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex. 1965). When serving a nonresident defendant by service on the Secretary of State, the record must affirmatively show the plaintiff provided the Secretary of State with the defendant's "home or home office" address. World Distribs., Inc. v. Knox, 968 S.W.2d 474, 477-78 (Tex. App.-El Paso 1998, no pet.). Absent fraud or mistake, which Morrow does not assert, a certificate from the Secretary of State's office is conclusive evidence that the Secretary of State, as Morrow's agent, received service of process and forwarded it as required by the Texas Long Arm Statute. Capital Brick, Inc. v. Fleming Manufacturing Co., Inc., 722 S.W.2d 399, 401 (Tex. 1986).
The record here shows that the original petition was superceded by the filing of the first amended petition. The amended petition alleges the necessary facts which, if true, would establish Morrow's amenability to substitute service. The certificate of the Secretary of State certifies that Morrow was served with the citation and amended petition at the home or home office address stated in the amended petition. See Tex. Civ. Prac. Rem. Code Ann. § 17.045; Capital Brick, 722 S.W.2d at 401. Thus, the trial court acquired in personam jurisdiction over Morrow necessary to support a default judgment upon substituted service. Whitney v. L L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973) (explaining service under the Texas Long Arm Statute).
Morrow argues the Durango Drive address used in the original petition was his "home address"; therefore, the Paradise Road address could not also be his "home or home office" address as stated in the amended petition. We do not agree. The words "home address" were not used anywhere in the original petition. The original petition simply states "Defendant Robert Morrow ("Morrow") is a resident of the State of Nevada, and may be served at 4355 S. Durango Dr., Las Vegas, Nevada 89147." It does not assert, nor will we infer, the Durango Drive address listed in the original petition was Morrow's home address. Furthermore, Morrow acknowledges in his brief before this court that the Durango Drive address was not his home address.
Morrow also complains that the plaintiffs failed to serve his counsel with a copy of the amended petition. He appears to argue that the Texas Long Arm Statute requires a plaintiff who has properly served a nonresident defendant through the Secretary of State to also prove, as a part of the record, that the defendant's counsel has been served. Morrow cites no authority for such a proposition. Therefore, the alleged error has been waived and presents nothing for review. See Tex.R.App.P. 38.1(h); Kosowska v. Kahn, 929 S.W.2d 505, 508-09 (Tex. App.-San Antonio 1996, writ denied).
Morrow has failed to discharge his burden to show a lack of jurisdiction apparent on the face of the record. On the contrary, the record shows that the plaintiffs strictly complied with the requirements of the Texas Long Arm Statute and that the Secretary of State's notice to Morrow was forwarded in compliance with the requirements of § 17.045(a), Tex. Civ. Prac. Rem. Code Ann. Accordingly, we overrule Morrow's sole issue on appeal, and affirm the trial court's judgment.