                                                                                    ACCEPTED
                                                                                05-17-01126-CV
                                                                      FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                             5/21/2018 12:33 PM
                                                                                     LISA MATZ
                                                                                         CLERK

                           No. 05-17-01126-CV
                             _____________
                                                              FILED IN
                                                       5th COURT OF APPEALS
                                 IN THE                     DALLAS, TEXAS
                                                       5/21/2018 12:33:19 PM
                 FIFTH DISTRICT COURT OF       APPEALS        LISA MATZ
                                                                Clerk

                          AT DALLAS, TEXAS

                       WWLC INVESTMENT, L.P.,

                                Appellant,

                                    vs.

                            SORAB MIRAKI,

                                 Appellee.
                              _____________

    Appealed from the 416th Judicial District Court of Collin County, Texas
__________________________________________________________________

       REPLY BRIEF OF APPELLANT WWLC INVESTMENT, L.P.
__________________________________________________________________

                                  PALMER & MANUEL, PLLC

                                  By: /s/ Jeffrey R. Sandberg
                                  Jeffrey R. Sandberg
                                  State Bar No. 00790051
                                  jsandberg@pamlaw.com
                                  8350 N. Central Expressway; Suite 1111
                                  Dallas, Texas 75206
                                  (214) 242-6444/Fax (214) 265-1950
                                  COUNSEL FOR APPELLANT WWLC
                                  INVESTMENT, L.P.,

                   ORAL ARGUMENT REQUESTED
                                       TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ..................................................................................... v

INTRODUCTION...................................................................................................... 1

REPLY ISSUES PRESENTED FOR REVIEW ........................................................ 2

REPLY - SUMMARY OF ARGUMENT ................................................................. 3

BRIEF OF ARGUMENT ........................................................................................... 3

REPLY ISSUE ONE (Restated) ................................................................................ 5
The Trial Court Erred When It Sua Sponte Entered the Final Judgment That
WWLC’s Petition for Bill of Review Was Denied Because There Was No
Consent by WWLC’s Counsel. (CR136; RR2 6-9)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE ONE ............................ 5

REPLY ISSUE TWO (Restated) ............................................................................... 6
Because the Order Authorizing Substituted Service and Return of Service Do
Not State the Nature of the Address for Substituted Service, the Substituted
Service is Defective. (CR131, 132)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE TWO ........................... 6

ISSUE THREE (Restated) ......................................................................................... 7
The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Citation Did Not Comply with Texas
Law –Service Upon a Limited Partnership Is Not Properly Addressed to an
“Owner.” (CR 136)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE THREE ....................... 7
A.  The Citation Is Addressed to Wendy Chen, Owner and Is Not Addressed
    to Wendy Chen, President as Argued by Appellee. ......................................... 7




                                                        ii
B.      Because the Corporate General Partner Was Not Defunct at the Time
        of the Issuance of the Citation and Its Receipt by the Process Server,
        the Citation to “Owner” Failed to Comply with Texas Law. ........................... 8

C.      Because the Citation is Defective - The Citation is Improperly Addressed
        to “Wendy Chen, Owner” - Service Is Defective. ........................................... 9

D.      The Information Regarding the Corporate General Partner’s Charter
        Being Revoked Was Not Filed in the Underlying Case and Was Not Filed
        in the Petition for Review Proceeding Until 2017 – More Than a Year
        After the Default Judgment Was Entered in 2016. .......................................... 9

REPLY ISSUE FOUR (Restated) ............................................................................ 10
The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Attempted Service Before the
Substituted Service Did Not Comply with Texas Law – There Was No
Attempted Service Upon a Registered Agent or Partner Before the Substituted
Service. (CR 136; App.)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FOUR........................ 10
A.  No Service Was Attempted at the Address of the Registered Agent or
    Another Person Authorized to Be Served by Texas Law. ............................. 10

B.      The Information Regarding the Corporate General Partner’s Charter
        Being Revoked Was Not Filed in the Underlying Case and Was Not Filed
        in the Petition for Review Proceeding Until 2017 – More Than a Year
        After the Default Judgment Was Entered in 2016. ....................................... .12

REPLY ISSUE FIVE (Restated) .............................................................................. 13
Service is Defective Because the Return of Service States the Petition, Not the First
Amended Petition, Was Attached to the Front Door. (CR131)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FIVE ......................... 13

REPLY ISSUE SIX (Restated) ................................................................................ 14
WWLC Requests Rendition of Judgment on the Threshold Petition for Bill of
Review Issue – Defective Service – and a Remand on the Substantive Issues in
the Underlying Litigation. (CR136)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE SIX ............................ 14

                                                    iii
A.       There Are No Presumptions in Favor of Compliance with Texas Law
         Regarding Service When A Default Judgment is Directly Attacked. ............ 14

B.       The Justice Court Eviction Petition Does Not Make Wendy Chen an
         “Agent” for Service of Process. .................................................................... .14

C.       The Justice Court Eviction Petition Was Not Filed in the Underlying
         Case and Was Not Filed in the Petition for Review Proceeding
         Until 2017 – More Than a Year After the Default Judgment Was
         Entered in 2016. ............................................................................................. 15

PRAYER .................................................................................................................. 15

CERTIFICATE OF SERVICE ................................................................................ 16

CERTIFICATE OF COMPLIANCE – WORD COUNT ........................................ 17




                                                            iv
                                     TABLE OF AUTHORITIES

CASES:                                                                                                      PAGE

Bailey’s Furniture, Inc. v. Graham-Rutledge & Co.,
      No. 05-11-0071 0-CV, 2012 WL 6554420
      (Tex. App.—Dallas 2012, no pet.). ................................................ 9, 10, 12, 15

Brown v. Magnetic Media, Inc.,
     795 S.W.2d 41(Tex. App.—Houston [1st Dist.] 1990, no writ). ..................... 7

Davis v. Martin,
      No. 01-07-00831-CV, 2009 Tex. App. LEXIS 1040
      (Tex. App.--Houston [1st Dist.] Feb. 12, 2009, no pet.).................................. 7

Hurd v. D.E. Goldsmith Chem. Metal Corp.,
      600 S.W.2d 345 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ). .......... 7

Lytle v. Cunningham,
       261 S.W.3d 83 (Tex. App.—Dallas 2008, no pet.). ......................................... 3

Marrot Commns., Inc. v. Town & Countrv P’ship,
     227 S.W.3d 372 (Tex. App.—Houston [1st Dist.1 2007,
     pet. denied). ........................................................................................ 10, 12, 15

McKanna v. Edgar,
    388 S.W.2d 927 (Tex.1965)........................................................................... 14

Primate Constr., Inc. v. Silver,
     884 S.W.2d 151 (Tex. 1994).......................................................................... 13

Shamrock Oil Co. v. Gulf Coast Nat. Gas, Inc.,
     68 S.W.3d 737 (Tex. App.—Houston [14th Dist.] 2001, pet denied). .......... 13

Titus v. Southern Cnty. Mut. Ins. as Subrogee for T.W. Sales,
       No. 03-05-00310-CV (Tex. App.—Austin 2009, no pet.). .............................. 7

Uvalde Country Club v. Martin Linen Supply Co.,
     690 S.W.2d 884 (Tex.1985)........................................................................... 14


                                                          v
Wilson v. Dunn,
      800 S.W.2d 833 (Tex.1990)....................................................................... 3, 14



STATUTES                                                                                                       PAGE

TEX. BUS. ORGS. CODE § 5.201. ........................................................................... 9, 11

TEX. BUS. ORGS. CODE § 5.251. ........................................................................... 9, 11

TEX. BUS. ORGS. CODE § 5.255. ........................................................................... 9, 11

TEX. CIV. PRAC. & REM. CODE § 17.022. ............................................................. 9, 11

TEX. R. CIV. P. 106 ............................................................................................... 6, 11




                                                          vi
                              No. 05-17-01126-CV
                                _____________

                                    IN THE

                   FIFTH DISTRICT COURT OF APPEALS

                             AT DALLAS, TEXAS

                         WWLC INVESTMENT, L.P.,

                                   Appellant,

                                       vs.

                               SORAB MIRAKI,

                                   Appellee.

__________________________________________________________________

     REPLY BRIEF OF APPELLANT WWLC INVESTMENT, L.P.
__________________________________________________________________

      TO THE COURT OF APPEALS:

      Appellant WWLC Investment, L.P., (“WWLC” or “Appellant”) submits this

Appellant’s Reply Brief. Appellee Sorab Miraki will be referred to as “Miraki” or

“Appellee.”




                                       1
                 REPLY ISSUES PRESENTED FOR REVIEW

                                REPLY ISSUE ONE

The Trial Court Erred When It Sua Sponte Entered the Final Judgment That WWLC’s
Petition for Bill of Review Was Denied Because There Was No Consent by WWLC’s
Counsel. (CR136; RR2 6-9)

                               REPLY ISSUE TWO

Because the Order Authorizing Substituted Service and Return of Service Do Not State
the Nature of the Address for Substituted Service, the Substituted Service is Defective.
(CR131, 132)

                              REPLY ISSUE THREE

The Trial Court Erred When It Entered the Final Judgment Dismissing the Petition for
Bill of Review Because the Citation Did Not Comply with Texas Law –Service Upon a
Limited Partnership Is Not Properly Addressed to an “Owner.” (CR 136)

                               REPLY ISSUE FOUR

The Trial Court Erred When It Entered the Final Judgment Dismissing the Petition for
Bill of Review Because the Attempted Service Before the Substituted Service Did Not
Comply with Texas Law – There Was No Attempted Service Upon a Registered Agent
or Partner Before the Substituted Service. (CR 136; App.)

                               REPLY ISSUE FIVE

Service is Defective Because the Return of Service States the Petition, Not the First
Amended Petition, Was Attached to the Front Door. (CR131)

                                REPLY ISSUE SIX

WWLC Requests Rendition of Judgment on the Threshold Petition for Bill of Review
Issue – Defective Service – and a Remand on the Substantive Issues in the Underlying
Litigation. (CR136)

                                           2
                     REPLY - SUMMARY OF ARGUMENT

      If the record fails to affirmatively show strict compliance with the rules of civil

procedure governing issuance, service, and return of citation, there is error apparent on

the face of the record and attempted service of process is invalid and of no effect.

Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.—Dallas 2008, no pet.).

      In response to the service defects requiring a reversal that are described in

WWLC’s Brief, Appellee wholly fails to show that the attempted service upon

WWLC’s “owner” was somehow proper under Texas law. Without multiple attempts

at service in compliance with Texas law - upon the registered agent or some other

person authorized by Texas law to be served with process - there was no attempted

compliant service before substituted service was requested and authorized. Further,

Appellee wholly fails to explain why an attempted service at a business entity’s place

of business might somehow comply with Texas law before Appellee moved for

alternative service. Instead, on page 18 of Appellee’s Brief, Appellee argues that

WWLC had “actual notice” of the lawsuit no later than December 15, 2015. Actual

notice of a lawsuit is not a substitute for service that complies with the requirements

mandated by Texas law, and “actual notice” is also not a substitute for the return of

service information that is required by Texas law. Even if a defendant has received

actual notice of a pending lawsuit, a default judgment rendered upon defective service

will not stand. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
                                           3
      On pages 15 and 19 of Appellee’s Brief, Appellee points this Court to the

forfeiture of the charter of WWLC’s general partner. Appellee summarily concludes

that this somehow authorizes service upon Wendy Chen as “owner” of WWLC, but

Appellee points to no Texas law in support of Appellee’s conclusion. If Appellee is

arguing that Wendy Chen could be served as a replacement general partner, then the

Citation would be required to expressly state that Wendy Chen was being served in her

capacity as a partner. Of course, the citation does not state that Wendy Chen is being

served in her capacity as a partner. (CR133)




                                          4
                              BRIEF OF ARGUMENT

                                 REPLY ISSUE ONE

                                       (Restated)

The Trial Court Erred When It Sua Sponte Entered the Final Judgment That
WWLC’s Petition for Bill of Review Was Denied Because There Was No Consent
by WWLC’s Counsel. (CR136; RR2 6-9)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE ONE

      On page 20 of Appellee’s Brief, Appellee points to the statement by the trial

court at the conclusion of the hearing that WWLC’s counsel consented to the June 14,

2017 trial on the petition for review. (CR256-57, RR2 67-68) To be clear, this is what

the trial court stated on the record at the conclusion of the hearing/trial. (RR2 67-68) It

is also clear that the Court was prepared to re-set the hearing on the temporary

injunction to mid-July, which would have resulted in a writ of execution being issued

and WWLC’s property sold. (RR2 68) WWLC had no real choice here, and this is not

“consent.” (RR2 68) Further, the trial court judge requested that the proceedings “go

off the record” following WWLC’s attorney repeated requests, and before WWLC

called its first witness. (RR2 6-9)




                                            5
                                REPLY ISSUE TWO

                                       (Restated)

Because the Order Authorizing Substituted Service and Return of Service Do Not
State the Nature of the Address for Substituted Service, the Substituted Service is
Defective. (CR131, 132)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE TWO

      On page 20 of Appellee’s Brief, Appellee argues that Rule 106 permits an

affidavit seeking to support alternative service to identify any place where the

defendant can probably be found. See TEX. R. CIV. P. 106.        Contrary to Appellee’s

argument, the order authorizing substituted service and the return of service also fail to

state that the address is one where the defendant can probably be found. (CR131, 132)

Appellee’s argument fails – the legal requirement relied upon by Appellee is not met

due to the omission of this language from the order authorizing substituted service and

return of service. Further, these are two different issues – language requirements for

the affidavit versus the order authorizing substituted service and return of service.

Rule 106’s requirements for the affidavit, on its face, do not mean that the omission of

the “nature of the address” from the order authorizing substituted service and return of

service is somehow excused.

      Again, Texas law is clear - the order authorizing substituted service and return

of service must state the nature of the address being utilized for substituted service:



                                            6
      Furthermore, neither the trial court's order nor Smith's return of service
      states that the address for substituted service was Titus's usual place of
      abode or other place where she could probably be found. This, too, is an
      error on the face of the record that requires reversal. See Brown v.
      Magnetic Media, Inc., 795 S.W.2d 41, 43 (Tex. App.—Houston [1st
      Dist.] 1990, no writ) (trial court's order and return of service must
      specifically state that address for service was defendant's usual place of
      business in order to comply with Rule 106); Hurd v. D.E. Goldsmith
      Chem. Metal Corp., 600 S.W.2d 345, 346 (Tex. Civ. App.—Houston [1st
      Dist.] 1980, no writ) (reversing default judgment where neither
      constable's return nor trial court's order authorizing substitute service
      under Rule 106(b) stated that address for substituted service was
      defendant's usual place of business); see also Davis v. Martin, No. 01-07-
      00831-CV, 2009 Tex. App. LEXIS 1040, at *17 n.7 (Tex. App.—
      Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem. op.).

Titus v. Southern Cnty. Mut. Ins. as Subrogee for T.W. Sales, No. 03-05-00310-CV,

n.4 (Tex. App.—Austin 2009, no pet.).

                             REPLY ISSUE THREE

                                     (Restated)

The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Citation Did Not Comply with Texas Law
–Service Upon a Limited Partnership Is Not Properly Addressed to an “Owner.”
(CR 136)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE THREE

A.    The Citation Is Addressed to Wendy Chen, Owner and Is Not Addressed to
      Wendy Chen, President as Argued by Appellee.

      On page 21 of Appellee’s Brief, Appellee apparently is arguing that the Citation

is not defective because, according to Appellee, Wendy Chen was served in her

capacity as “President of Appellant’s defunct (at the time of attempted and completed

                                          7
service of process) general partner.” This is false – the Citation states that Ms. Chen

was served as “Owner” and not in her capacity as “President.” (CR136)

B.    Because the Corporate General Partner Was Not Defunct at the Time of
      the Issuance of the Citation and Its Receipt by the Process Server, the
      Citation to “Owner” Failed to Comply with Texas Law.

      The Certificate of Amendment and the Assumed Name Certificate indicate that

WWLC’s registered agent is HPZ International, Inc., 100 N. Central Expressway, Suite

813, Richardson, Texas 75080. (RR5, pp. 36 &40/49; PX1)

      The Citation was issued on January 13, 2016. (CR133) On page 15 of

Appellee’s Brief, Appellee asserts that “[o]n January 29, 2016, the corporate charter of

the entity Appellant alleges is its general partner was forfeited involuntarily by the

Texas Secretary of State. (CR189) Further, the Return of Service states that the

Citation was received by the process server on January 20, 2016 (CR131), and thus

before the forfeiture of the corporate charter on January 29, 2016. (CR189)

      Clearly, the Citation was defective when it was issued by the clerk’s office and

received by the process server – the corporate general partner’s charter had not yet

been forfeited. As a result, and contrary to Appellee’s argument that the forfeiture of

the charter somehow permits service upon an “Owner,” the Citation is not addressed to

a person that Texas law provides may be properly served with process.




                                           8
C.    Because the Citation is Defective - The Citation is Improperly Addressed
      to “Wendy Chen, Owner” - Service Is Defective.

      “Owner” is not an appropriate person for service of citation upon a limited

partnership. TEX. BUS. ORGS. CODE §§ 5.201(b), 5.251, 5.255; TEX. CIV. PRAC. &

REM. CODE § 17.022. As a result, the Citation is defective and WWLC was never

properly served with process.

D.    The Information Regarding the Corporate General Partner’s Charter
      Being Revoked Was Not Filed in the Underlying Case and Was Not Filed in
      the Petition for Review Proceeding Until 2017 – More Than a Year After
      the Default Judgment Was Entered in 2016.

      As shown above, the forfeiture of the corporate general partner’s charter

occurred after the Citation was issued by the clerk’s office and received by the process

server. Further, the documents regarding the corporate forfeiture were not filed in the

underlying litigation and were instead filed in the Petition for Bill of Review

proceeding on August 1, 2017 – when Appellee filed the document as supplemental

exhibits to Appellee’s Response to WWLC’s Motion for New Trial. (CR186, 189) As

a result, the corporate charter documents were not before the trial court at the time the

default judgment was entered on April 27, 2016. (CR15)

      “Unless the record affirmatively shows, ‘at the time the default judgment is

entered,’ either an appearance by the defendant, proper service of citation, or a written

memorandum of waiver, the trial court does not have in personam jurisdiction to

render a default judgment against the defendant.” Bailey’s Furniture, Inc. v. Graham-
                                           9
Rutledge & Co., No. 05-11-0071 0-CV, *4; 2012 WL 6554420 (Tex. App.—Dallas

2012, no pet.) (quoting Marrot Commns., Inc. v. Town & Countrv P’ship, 227 S.W.3d

372, 376 (Tex. App.—Houston [1st Dist.1 2007, pet. denied).

      In conclusion, the forfeiture of the corporate charter is not relevant to this

Court’s analysis of whether the Citation complied with Texas law. See Bailey’s

Furniture, Inc., No. 05-11-0071 0-CV, *4.

                             REPLY ISSUE FOUR

                                    (Restated)

The Trial Court Erred When It Entered the Final Judgment Dismissing the
Petition for Bill of Review Because the Attempted Service Before the Substituted
Service Did Not Comply with Texas Law – There Was No Attempted Service
Upon a Registered Agent or Partner Before the Substituted Service. (CR 136;
App.)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FOUR

A.    No Service Was Attempted at the Address of the Registered Agent or
      Another Person Authorized to Be Served by Texas Law.

      On page 21, Appellee argues that Texas law does not require that service be

attempted at multiple locations before substituted service may be authorized. While

this is a correct statement of law, Appellee fails to show that there were multiple

attempts to effect service before the substituted service was requested. The service

attempts by the process server upon “Wendy Chen, Owner” began on January 20, 2016

and concluded on January 29, 2016. (CR130) On page 15 of Appellee’s Brief,


                                        10
Appellee asserts that “[o]n January 29, 2016, the corporate charter of the entity

Appellant alleges is its general partner was forfeited involuntarily by the Texas

Secretary of State. (CR189)

         “Owner” is not an appropriate person for service of citation upon a limited

partnership. TEX. BUS. ORGS. CODE §§ 5.201(b), 5.251, 5.255; TEX. CIV. PRAC. & REM.

CODE § 17.022. As a result, the attempted service on and before January 29, 02016 is

defective, making the substituted service defective as well. Again, before a motion for

substituted service may be granted, service must be attempted under Rule 106(a). TEX.

R. CIV. P. 106(b). There must be a supporting affidavit establishing that service was

attempted more than once that complies with the personal service requirements of Rule

106(a)(1) or the mailing requirement of Rule 106(a)(2). TEX. R. CIV. P. 106(b).

         The Certificate of Amendment and the Assumed Name Certificate indicate that

WWLC’s registered agent is HPZ International, Inc., 100 N. Central Expressway, Suite

813, Richardson, Texas 75080. (RR5, pp. 36 &40/49; PX1) The affidavit in support of

Miraki’s Motion for Substituted Service describes service attempts solely at the “above

mentioned address” – 5610 Eastside Ave., Dallas, Texas 75214. (CR129) With no

attempt to serve the registered agent or another person in compliance with Texas law,

Appellee’s substituted service was not proper, and the default judgment must be set

aside.



                                          11
B.    The Information Regarding the Corporate General Partner’s Charter
      Being Revoked Was Not Filed in the Underlying Case and Was Not Filed in
      the Petition for Review Proceeding Until 2017 – More Than a Year After
      the Default Judgment Was Entered in 2016.

      As shown above, the forfeiture of the corporate general partner’s charter

occurred after the Citation was issued by the clerk’s office and received by the process

server. Further, the documents regarding the corporate forfeiture were not filed in the

underlying litigation and were instead filed in the Petition for Bill of Review

proceeding on August 1, 2017 – when Appellee filed the document as supplemental

exhibits to Appellee’s Response to WWLC’s Motion for New Trial. (CR186, 189) As

a result, the corporate charter documents were not before the trial court at the time the

default judgment was entered on April 27, 2016. (CR15)

      “Unless the record affirmatively shows, ‘at the time the default judgment is

entered,’ either an appearance by the defendant, proper service of citation, or a written

memorandum of waiver, the trial court does not have in personam jurisdiction to

render a default judgment against the defendant.” Bailey’s Furniture, Inc., No. 05-11-

0071 0-CV, *4 (quoting Marrot Commns., Inc., 227 S.W.3d at 376). In conclusion,

the forfeiture of the corporate charter is not relevant to this Court’s analysis of whether

the attempted service complied with Texas law. See Bailey’s Furniture, Inc., No. 05-

11-0071 0-CV, *4.




                                            12
                                REPLY ISSUE FIVE

                                      (Restated)

Service is Defective Because the Return of Service States the Petition, Not the
First Amended Petition, Was Attached to the Front Door. (CR131)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE FIVE

      The return of service must correctly identify the petition served on the

defendant. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)

(recitation that petition, instead of second amended petition, was served, was error).

Shamrock Oil Co. v. Gulf Coast Nat. Gas, Inc., 68 S.W.3d 737, 738-39 (Tex. App.—

Houston [14th Dist.] 2001, pet denied) (recitation that petition was served, without

correctly stating which petition was served, was error).

      On page 22 of Appellee’s Brief, Appellee argues that the Return of Service, by

describing the Amended Petition as being “delivered,” shows that it was the Amended

Petition, and not the Original Petition, that was served. (CR131) While the Return of

Service states the Amended Petition was “delivered,” it also states the facts describing

the process server’s action: “By attaching a true copy of the Citation to Defendant

WLC Investment, LP, with a copy of the Petition [not the Amended Petition]

attached.” (CR131) The failure to accurately state that the First Amended Petition was

attached to the door is error. See Primate Constr., Inc., 884 S.W.2d at152; Shamrock

Oil Co., 68 S.W.3d at 738-39.


                                          13
                                REPLY ISSUE SIX

WWLC Requests Rendition of Judgment on the Threshold Petition for Bill of
Review Issue – Defective Service – and a Remand on the Substantive Issues in the
Underlying Litigation. (CR136)

ARGUMENT AND AUTHORITIES FOR REPLY ISSUE SIX

A.    There Are No Presumptions in Favor of Compliance with Texas Law
      Regarding Service When A Default Judgment is Directly Attacked.

      Strict compliance with the rules for service of citation must affirmatively appear

on the record in order for a default judgment to withstand direct attack. Wilson v.

Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply

Co., 690 S.W.2d 884, 886 (Tex.1985). There are no presumptions in favor of valid

issuance, service, and return of citation in the face of a direct attack on a default

judgment. Uvalde, 690 S.W.2d at 836; McKanna v. Edgar, 388 S.W.2d 927, 929

(Tex.1965). Contrary to Texas law, Appellee argues on pages 22 and 23 of Appellee’s

Brief that this Court should imply findings in support of the service of process and

apply a “factual sufficiency” standard of review. This is not the applicable standard of

review.

B.    The Justice Court Eviction Petition Does Not Make Wendy Chen an
      “Agent” for Service of Process.

      On page 24 of Appellee’s Brief, Appellee argues that the Justice Court Eviction

Petition somehow makes Wendy Chen an appropriate agent for service because Wendy

Chen signed the Eviction Petition above the signature line for “Plaintiff

                                          14
(Landlord/Property Owner) or Agent.” (CR122) Notably Appellee does not provide

any authorities or argument in support of Appellee’s conclusion, and the reason is

simple – there aren’t any.

C.    The Justice Court Eviction Petition Was Not Filed in the Underlying Case
      and Was Not Filed in the Petition for Review Proceeding Until 2017 –
      More Than a Year After the Default Judgment Was Entered in 2016.

      “Unless the record affirmatively shows, ‘at the time the default judgment is

entered,’ either an appearance by the defendant, proper service of citation, or a written

memorandum of waiver, the trial court does not have in personam jurisdiction to

render a default judgment against the defendant.” Bailey’s Furniture, Inc., No. 05-11-

0071 0-CV, *4 (quoting Marrot Commns., Inc., 227 S.W.3d at 376). On June 14, 2017

(CR60), Appellee filed a Brief in support of Appellee’s opposition to the injunctive

relief requested by WWLC and included the Justice Court Eviction Petition as an

exhibit. (CR122) The Eviction Petition is not relevant to this Court’s analysis, as it was

not timely before the trial court at the time of the default judgment. See Bailey’s

Furniture, Inc., No. 05-11-0071 0-CV, *4.

                                       PRAYER

      For all the reasons stated in Appellant’s Brief and this Reply Brief, Appellant

WWLC Investment, L.P. asks that this Court reverse the judgment of the trial court,

partially render judgment in favor of WWLC that the default judgment is void and

remand this cause for further proceedings.
                                           15
                                    Respectfully submitted,

                                    PALMER & MANUEL, PLLC

                                    By: /s/ Jeffrey R. Sandberg_
                                    Jeffrey R. Sandberg
                                    State Bar No. 00790051
                                    jsandberg@pamlaw.com
                                    8350 N. Central Expressway; Suite 1111
                                    Dallas, Texas 75206
                                    (214) 242-6444/ (214) 265-1950 – Fax
                                    COUNSEL FOR APPELLANT
                                    WWLC INVESTMENT, L.P.

                        CERTIFICATE OF SERVICE

      The undersigned certifies that a true and correct copy of the foregoing
instrument was served upon opposing counsel, on the 21st day of May, 2018, upon:

      Via E-Filing and Email (ewalker@mwtrialfirm.com):
      Eric D. Walker, Esq.
      MORALES |WALKER PLLC
      6060 N. Central Expy., Suite 500
      Dallas, Texas 75206
      Telephone: 972.948.3646
      Facsimile: 972.361.8005
      Attorneys for Appellee Sorab Miraki

                                           /s/ Jeffrey R. Sandberg
                                           Jeffrey R. Sandberg




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             CERTIFICATE OF COMPLIANCE – WORD COUNT

      Appellants file this Tex. R. App. P. 9.4 Certificate of Compliance regarding the

Appellant’s Reply Brief filed on this date. Counsel for Appellants certifies that

Appellant’s Reply Brief was generated by a computer using Microsoft Word 2007

which indicates that after excluding the caption, identity of parties and counsel,

statement regarding oral argument, table of contents, index of authorities, statement of

the case, statement of issues presented, statement of jurisdiction, statement of

procedural history, signature, proof of service, certification, certificate of compliance,

and appendix, as permitted under Rule 9.4(i)(1) of the Texas Rules of Civil Procedure,

the word count of this document is 2,950.

                                         /s/ Jeffrey R. Sandberg_
                                         Jeffrey R. Sandberg




                                           17
