Levent Ulusal v. Lentz Engineering, L C
01-15-00597-CV
| Tex. App. | Nov 12, 2015Background
- Lentz Engineering (Plaintiff) provided surveying and engineering services for a Texas construction project and was not paid by Solidarity Contracting and its president, Levent Ulusal (Defendant).
- Ulusal moved from Texas to New Jersey after the cause of action arose; Plaintiff attempted personal service in Texas, then sought substituted service via the Texas Secretary of State under Tex. Civ. Prac. & Rem. Code §17.044(a)(3).
- The Secretary of State mailed the citation to Ulusal in New Jersey by certified mail; the mail was returned "unclaimed/unable to forward."
- Plaintiff obtained a default judgment in Harris County after presenting business records and an attorney-fee affidavit at a default hearing; judgment was joint and several against Solidarity and Ulusal.
- Ulusal filed a restricted appeal challenging (inter alia) service of process, the sufficiency of the pleadings to support a default judgment, pleading of attorney's fees, and the effect of a corrected citation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service via Secretary of State when certified mail was returned "unclaimed" | Service through SOS was proper; statute makes SOS agent and the returned certificate is conclusive absent fraud | Returned "unclaimed" means no effective service; due process requires actual notice | Court treats SOS service as proper; refusal to claim mail does not defeat jurisdiction where statutorily authorized and certificate shows attempted delivery (constructive notice sufficient) |
| Sufficiency of pleadings to support default judgment (fair notice, fraud and trust claims) | Second Amended Petition pleaded trust-fund and fraud claims and gave fair notice; plaintiff not required to plead every element or marshal evidence | Petition allegedly failed to plead essential elements (e.g., trustee status, date of relocation) | Petition held sufficient for default judgment under liberal pleading/fair-notice standard; plaintiff may use legal conclusions and need not plead exact relocation date |
| Pleading and recovery of attorney's fees | Plaintiff sought fees in the prayer and referenced Tex. Civ. Prac. & Rem. Code §38.001 and asserted entitlement under the Construction Trust Fund Act and as exemplary damages for fraud | Defendant argued fees not properly pleaded or statutory basis not alleged | Request for fees in the prayer plus factual allegations sufficed; fees recoverable under cited statutes/causes and as exemplary damages where properly pleaded/established |
| Effect of filing a corrected citation before default judgment | Plaintiff could correct citation pre-default and trial court implicitly permitted correction; minor name inversion not fatal | Corrected citation or defects in return render service invalid and judgment improper | Corrections permitted pre-default; minor citation errors (name inversion) do not invalidate service where record shows service with reasonable certainty |
Key Cases Cited
- Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399 (Tex. 1986) (Secretary of State certificate prima facie/conclusive absent fraud for substituted service)
- Dole v. LSREF2 APEX 2, LLC, 425 S.W.3d 617 (Tex. App.—Dallas 2014) (returned certified mail marked "unclaimed" does not defeat jurisdiction under long-arm statute)
- Dusenbery v. United States, 534 U.S. 161 (2002) (due process requires reasonable efforts at notice, not actual notice)
- Milliken v. Meyer, 311 U.S. 457 (1940) (residency and related contacts support personal jurisdiction)
- Castleberry v. Goolsby Building Corp., 617 S.W.2d 665 (Tex. 1981) (petition supporting default judgment construed liberally; reasonable inferences drawn for pleader)