359 S.W.3d 824
Tex. App.2012Background
- This is a restricted appeal from a no-answer default judgment against BLS Development, LLC.
- Lopez sued BLS for unpaid labor and materials on a construction project; citation issued to BLS’s registered agent at a specified Austin address.
- Process server reported the registered address was vacant and the agent reportedly was out of the country; attempts at the registered address continued.
- Citation and petition were served on the secretary of state as substituted service; secretary of state certified delivery occurred (July 2 and July 7, 2009).
- BLS challenged in a restricted appeal that there was defective service and lack of in personam jurisdiction; the trial court’s judgment was affirmed.
- Court held there was no face-of-record error; substituted service complied with Section 5.251(1)(B) and the secretary of state’s certificate established service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service via the secretary of state satisfied due process | Lopez satisfied Section 5.251(1)(B) with reasonable diligence. | BLS argues seven facial defects showing no strict compliance with substitute service rules. | No reversible error; service valid and court had in personam jurisdiction. |
Key Cases Cited
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (no presumptions favoring valid service in restricted appeal)
- Lejeune v. Ins. Co. of State of Pa., 297 S.W.3d 254 (Tex. 2009) (strict compliance with service rules must appear on record)
- Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31 (Tex. App.—Houston [1st Dist.] 2003) (record may show reasonable diligence; one attempt can suffice)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (importance of proper service appearance on the record)
- Campus Invs., Inc. v. Cullever, 144 S.W.3d 464 (Tex. 2004) (secretary of state certificate conclusively establishes service)
- TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706 (Tex. App.—Fort Worth 1982) (indicates independent nature of substituted service statutes)
- G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813 (Tex. App.—Houston [1st Dist.] 1996) (reasonable diligence can be shown by single attempted service at registered office)
- Adver. Displays, Inc. v. Cote, 732 S.W.2d 360 (Tex. App.—Houston [14th Dist.] 1987) (knowledge of alternate addresses does not create service presumption)