Comal & Co. LLC v. Michelle Mays
03-17-00746-CV
| Tex. App. | Jan 5, 2018Background
- Plaintiff Michelle Mays sued Comal & Co., LLC for roof-repair related claims and filed an original petition on January 9, 2017.
- Multiple attempts at service were made: county clerk mailings, certified mail to the Secretary of State, and an affidavit by a process server — but the record shows incomplete/incorrect returns and an incorrect address used by the server (197 vs. 1597 Acacia Parkway).
- Mays moved for substituted service under Tex. R. Civ. P. 106; the motion did not include the affidavit required by Rule 106(b) specifying the defendant’s usual place of business/abode and specific failed attempts at service.
- The trial court granted substituted service, deeming service on the Secretary of State (May 10, 2017) sufficient; a default judgment was entered August 9, 2017, for damages, treble DTPA relief, and attorney’s fees.
- Comal & Co. filed a restricted appeal within six months, arguing the default judgment is void because service and substituted service were not authorized by the Rules and the Business Organizations Code.
Issues
| Issue | Plaintiff's Argument (Mays) | Defendant's Argument (Comal) | Held |
|---|---|---|---|
| Whether substituted service under Tex. R. Civ. P. 106 was properly authorized | Mays argued substituted service was appropriate and that service via the Secretary of State was valid under the Business Organizations Code | Comal argued Mays failed to file the affidavit required by Rule 106(b), the process-server affidavit was defective and used the wrong address, and the Secretary of State was not the proper agent because reasonable diligence to find the registered agent was not shown | The record shows no compliant 106(b) affidavit and insufficient evidence of reasonable diligence; substituted service and resulting default judgment are improperly authorized on the face of the record |
| Whether service on the Secretary of State was effective under Tex. Bus. Orgs. Code § 5.251–.252 | Mays relied on the Secretary of State forwarding procedure as adequate | Comal showed it had a registered agent on file and Mays did not show the agent could not be found with reasonable diligence; return forms were incomplete or incorrect | Secretary of State treatment did not apply because Comal maintained a registered agent and Mays did not prove reasonable diligence to locate that agent |
| Whether the record contained the required returns/proofs under Tex. R. Civ. P. 107 for default judgment | Mays pointed to the Secretary of State certificate and process-server affidavit as proof | Comal pointed out missing/blank return forms, noncompliant returns, and lack of required diligence language under Rule 107(d) and (f) | Proof of service as required by Rule 107 was not properly on file; the record is deficient for entry of default judgment |
| Whether the default judgment should be reversed on restricted appeal | Mays implicitly argued procedural sufficiency | Comal contended error was apparent on the face of the record and satisfied restricted-appeal requirements | The errors (lack of compliant 106 affidavit; improper substituted service; inadequate proof of service) are apparent on the face of the record and warrant reversal and remand |
Key Cases Cited
- Fid. & Guar. Ins. Co. v. Drewery Const. Co., 186 S.W.3d 571 (Tex. 2006) (no appellate presumptions for valid issuance, service, and return of citation where record fails to show compliance)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (Rule 106(b) requires a supporting affidavit before substitute service may be authorized)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (party seeking service must ensure service is properly accomplished and reflected in the record)
- Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex. App.—San Antonio 2002) (courts disfavor defaults; strict compliance with service rules required)
- Torres v. Haynes, 432 S.W.3d 370 (Tex. App.—San Antonio 2014) (trial court lacks jurisdiction to render default judgment when service rules aren’t strictly followed)
- C.W. Bollinger Ins. Co. v. Fish, 699 S.W.2d 645 (Tex. App.—Austin 1985) (distinguishing statutory service regimes; relied on for limited propositions but not controlling here)
- Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226 (Tex. App.—Houston [1st Dist.] 2013) (discusses requirements for demonstrating reasonable diligence in attempting service)