Lee Hoffpauir, Inc. v. Kenneth Kretz and Elayne Kretz
2014 Tex. App. LEXIS 4805
| Tex. App. | 2014Background
- Kretzes sued Hoffpauir Inc. after alleged negligent, delayed, and shoddy repairs to their fifth-wheel trailer and alleged improper storage that caused mold and interior damage; they sought DTPA damages, treble damages, and attorney’s fees.
- The Kretzes attempted service on Hoffpauir Inc.’s registered agent, Lee Hoffpauir, by certified/registered mail; the return receipt was signed by office manager Alice Bird, not Lee Hoffpauir.
- Hoffpauir Inc. did not file an answer; the trial court entered a no-answer default judgment after a damages hearing, awarding the Kretzes over $500,000 plus fees.
- Hoffpauir Inc. filed a timely motion for new trial asserting Craddock relief (excusable default, meritorious defense, and due diligence) but did not challenge service in that motion.
- The district court denied the motion for new trial without a hearing; Hoffpauir Inc. appealed, arguing primarily that service was defective and the court therefore lacked personal jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defective service may be raised for the first time on appeal | Kretzes: TRAP changes require preservation by post-judgment motion; Wilson has been abrogated | Hoffpauir: Service was defective (served agent’s office manager, not registered agent); lack of service defeats personal jurisdiction and may be raised on appeal | Court: Wilson remains good law for defective service challenges; defendant may raise lack of proper service for first time on appeal; preserved and meritorious |
| Whether service on Hoffpauir Inc. complied with rules for serving a registered agent | Served via certified/registered mail to corporate agent; return receipt signed by office manager suffices | Hoffpauir: Agent named in statute (Lee Hoffpauir) was not actually served; signature by employee is not compliance | Court: Service was defective because it was not shown that the registered agent was served in strict conformity; treated as no service |
| Whether denial of new trial should be reversed under Craddock (excusable default) | N/A (Kretzes did not contest defective service) | Hoffpauir: Presented affidavits to satisfy Craddock but district court denied without hearing | Court: Did not reach Craddock merits because defective service compelled reversal; remanded for further proceedings |
| Whether there was sufficient evidence to support damages award | Kretzes: Presented evidence at damages trial supporting award | Hoffpauir: Challenges sufficiency of evidence | Court: Did not address sufficiency because reversal on jurisdictional grounds was dispositive |
Key Cases Cited
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (defective service defeats default judgment and may be raised on appeal)
- Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (standards for setting aside default judgments for excusable neglect, meritorious defense, and diligence)
- PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012) (lack of service deprives trial court of personal jurisdiction)
- Elite Towing, Inc. v. LSI Fin. Grp., 985 S.W.2d 635 (Tex. App.—Austin 1999) (discussing preservation under appellate rules; distinguished in this opinion)