J & J Container Manufacturing, Inc. v. Cintas- R. U.S., L.P.
01-14-00933-CV
| Tex. App. | Feb 10, 2015Background
- Cintas sued J & J Container Manufacturing in Harris County for breach of a rental/service agreement; judgment nunc pro tunc: liquidated damages $13,814.52 + unpaid invoices $441.46, attorney fees $2,500, plus interest and costs.
- Cintas requested service “by serving the Secretary of State,” and the Secretary of State mailed certified copy to the company’s listed agent; the mail was returned “Return to Sender, Not Deliverable As Addressed, Unable to Forward.”
- No executed citation or process-return showing attempts to serve the registered agent appears in the trial-court clerk’s record; appellant contends no attempt-return or alias citation naming the Secretary of State appears.
- Cintas filed a motion for default judgment; the court held a hearing (no reporter’s record) and entered final default judgment on June 3, 2014.
- J & J filed a restricted appeal within six months, arguing the default judgment is void because the record shows defective service/substitute service and lack of strict statutory compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction — reasonable diligence before substitute service on Sec. of State | Cintas effectively used Secretary of State after agent could not be located; certificate shows mail returned | J & J: record contains no process server return or other evidence showing reasonable diligence to locate/serve registered agent before resorting to Sec. of State | N/A — (Appellant seeks reversal/remand); record (as filed) lacks the affirmative evidence of reasonable diligence |
| Validity of citation used to effect service | Citation and petition were issued and the Secretary of State processed and forwarded service | J & J: citation is defective because it did not identify the statute authorizing service, and the copy in clerk’s file lacks clerk’s signature and seal | N/A — (Appellant argues citation defective; requests judgment set aside) |
| Compliance with statutory and rule requirements for service via Sec. of State (Tex. R. Civ. P. 15, 99; Bus. Orgs. Code provisions; Civ. Prac. & Rem. Code §17.045) | Cintas relied on statutory procedure by forwarding to Secretary of State, which returned the mailing undeliverable | J & J: plaintiff prematurely requested service on Secretary of State in the original citation instead of first obtaining and filing process-server returns showing attempts, failing to file amended petition/alias citation or a motion/obtained order for substituted service | N/A — (Appellant contends failure to follow required steps invalidates service) |
| Requirement to file motion for substitute service / court order (Tex. R. Civ. P. 106) | Cintas contends substitute service through Sec. of State was authorized by statute and effectuated | J & J: plaintiff did not file a motion for substituted service or obtain a court order explicitly authorizing service on the Secretary of State as a substitute under rule 106(b) and Bus. Orgs. Code §5.253(b)(1) | N/A — (Appellant asks appellate court to find service procedurally defective and vacate default judgment) |
Key Cases Cited
- Questor Invs. v. State of Chiapas, 997 S.W.2d 226 (Tex. 1999) (standards for restricted appeal timeliness and prerequisites)
- Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269 (Tex. 1997) (restricted appeal requirements)
- Fidelity & Guaranty Ins. v. Drewery Constr. Co., 186 S.W.3d 571 (Tex. 2006) (no presumption of valid service in restricted-appeal context)
- Primate Constr. v. Silver, 884 S.W.2d 151 (Tex. 1994) (strict compliance with service rules required for default judgments)
- Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985) (failure of strict compliance with service rules invalidates default judgment)
- Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271 (Tex. App.—Houston [1st Dist.] 2001) (record must affirmatively show reasonable diligence to serve registered agent before substitute service)
- McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965) (strict service compliance required unless defendant voluntary appears)
- Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31 (Tex. App.—Houston [1st Dist.] 2003) (plaintiff must establish reasonable diligence before resorting to substitute service)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (default judgment improper where service not strictly compliant)
- Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286 (Tex. App.—Dallas 2003) (default judgment void if substitute-service rules not strictly followed)