John L. Dole, III & Celia E. Dole v. Lsref2 Apex 2, Llc
2014 Tex. App. LEXIS 2921
Tex. App.2014Background
- California residents John L. Dole III and Celia E. Dole executed a promissory note secured by Texas real property and a guaranty up to $612,500; LSREF2 APEX 2, LLC holds the note and guaranty.
- The property was foreclosed for $634,000, leaving a deficiency claimed at $643,593.46.
- LSR filed suit for breach of contract and served through the Secretary of State at the Doles’ address as home or home office in California.
- Doles did not answer or appear. A default judgment was entered June 25, 2012, awarding damages and attorney’s fees against both Doles jointly and severally.
- This restricted appeal challenges service and jurisdiction, asserting invalid service and improper Secretary of State service; the Court affirms the judgment.
- The court held that service complied with Rule 107 and Texas long-arm service through the Secretary of State was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had personal jurisdiction over the Doles due to service of process. | Doles were properly served via the Secretary of State. | Service was defective or insufficient to confer jurisdiction. | No error; service complied and jurisdiction was proper. |
| Whether service on the Secretary of State was defective. | The petition satisfied long-arm requirements and addressed home address. | Not all addressed addresses shown; service may be defective. | No defect; service through the Secretary of State was proper. |
| Whether the date anomalies in the return of service render service fatally defective. | Discrepancy a clerical error, date discernible from the record. | Typographical error undermines validity. | Not fatally defective; record shows date of service. |
| Whether the petition failed to plead doing business in Texas necessary for long-arm service. | Petition adequately alleges Doles executed Note/Guaranty in Texas and property in Texas. | No explicit itemization of doing-business acts required. | Petition satisfied minimal pleading to confer jurisdiction. |
Key Cases Cited
- Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex. App.—Houston [1st Dist.] 1999) (restrictive appeal requires showing of valid service on face of record)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (default judgment only sustained if record shows proper service)
- McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965) (face-of-record jurisdiction requirement for substituted service)
- Wachovia v. Gilliam, 215 S.W.3d 848 (Tex. 2007) (address/home or home office necessary for doing-business showing)
- Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399 (Tex. 1986) (certificate of service conclusively shows forwarding of process)
- Glynn Corp. v. Precept Bus. Prods., Inc., 1999 WL 403028 (Tex. App.—Dallas 1999) (unpublished; unlisted in official reporter for WL; discussed unclaimed notation)
- Zuyus v. No’Mis Comm., Inc., 930 S.W.2d 743 (Tex. App.—Corpus Christi 1996) (unclaimed certificates do not automatically defeat service)
- Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009) (minimum pleading standard for establishing jurisdiction)
- Mobilevision Imaging Servs., LLC v. Lifecare Hosps., 260 S.W.3d 561 (Tex. App.—Dallas 2008) (petition’s doing-business assertion evaluated to confer jurisdiction)