                                 NO. 07-07-0173-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL E

                                   APRIL 14, 2009

                         ______________________________


               WESTMONT HOSPITALITY GROUP, INC., APPELLANT

                                           v.

                             HANK MORRIS, APPELLEE


                       _________________________________

          FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY;

               NO. 9415-C; HON. HOWARD S. WARNER, PRESIDING
                      _______________________________

                              MEMORANDUM OPINION

                        _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

      In two issues, appellant Westmont Hospitality Group (Westmont)2 contends the trial

court erred in denying the bill of review it sought after a default judgment in favor of

appellee Hank Morris was entered against it. We agree and reverse the judgment.



      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005).
      2
       Westmont owns, manages, and operates hotels throughout the United States and
worldwide.
                                        Background

       The suit underlying the default judgment arises from an incident that occurred in

1990. At that time, Hank Morris, then a three-year old hotel guest, stuck himself with a

hypodermic needle he found in a room of the Sheraton Town & Country Hotel in Houston,

Texas. This incident gave rise to a lawsuit filed in October 2005 in which it was alleged

that Morris was injured as a result.3 Specifically, Morris alleged there was a concern about

the possibility he was exposed to the HIV virus as a result of the injury. Morris had been

tested on February 7, 1991, February 14, 1991, and again on May 19, 2000. Each test

was negative for the HIV virus. In the suit giving rise to this appeal, Morris alleged his

damages were proximately caused by negligent acts and/or omissions of Westmont.

       On February 14, 2006, Morris filed a motion seeking a default judgment in which he

alleged citation was sent to a constable’s office in Houston. After finding the address to

be incorrect,4 the citation was transferred to another office for service at Westmont’s

corporate office. On December 5, 2005, the constable’s office sent a Rule 106 affidavit to

Morris’ attorney stating that the office was unable to serve the citation. Thereafter, on

December 20, 2005, a new citation was prepared containing the same incorrect address

and served on the Secretary of State. On January 18, 2006, the certificate of service was




       3
        Morris’ parents brought and settled bystander claims against Westmont in 1992.
Morris did not reach the age of majority until 2005. Thus, his claim did not ripen until that
time.
       4
      The citation listed Westmont’s address to be 3535 Timmons Lane, Suite 460,
Houston, Texas 77027. The parties stipulated the correct address for Westmont is 3555
Timmons Lane, Suite 460, Houston, Texas 77027.

                                             2
completed, and the certificate was filed on January 23, 2006, with the County Court at Law

in Hays County.

       In Morris’ motion seeking a default judgment, he alleged that the last date for

Westmont to file an answer was February 13, 2006, and by February 14, 2006, it had

neither responded to the suit nor maintained a registered agent and address for service

of process, and had therefore defaulted. On February 21, 2006, the trial court granted

Morris’ motion and entered a default judgment awarding Morris a total of $107,000.

       On October 13, 2006, Westmont sought a temporary restraining order against

enforcement of the default judgment asserting that it had never received service of Morris’

lawsuit. In seeking the order, Westmont asserted that although Morris correctly identified

its registered agent for service, it had incorrectly listed its address which resulted in

Westmont never receiving notice of Morris’ suit. The temporary restraining order was

granted by the trial court.

       Thereafter, on October 18, 2006, Westmont filed its original petition seeking a bill

of review in which it alleged that the default judgment against it obtained by Morris was

wrongfully obtained. At the hearing on Westmont’s request for a temporary injunction and

temporary relief, noting that Westmont had never posted the required bond,5 the trial court

denied both of those requests by Westmont.          Subsequently, the trial court denied

Westmont’s bill of review. Hence, this appeal.




       5
         At the October 27, 2006 hearing, both parties noted that the failure to post a bond
results in a voidable judgment. See Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987).

                                             3
                                          Discussion

       Westmont argues the trial court erred by: 1) using an informal evidentiary hearing

to deny, rather than grant, its bill of review concerning the dispositive issue of the lack of

proper service on Westmont; 2) failing to provide Westmont 45 days notice of trial; 3)

failing to require Morris to meet all requirements for substituted service on the Secretary

of State; 4) failing to follow notice and hearing requirements for ordinary hearings or trials;

5) penalizing Westmont ten percent of the entire amount of the judgment without evidence

that it sought a temporary restraining order only for the purpose of delay or that the

temporary order actually caused damage to Morris; and 6) penalizing Westmont for ten

percent of the entire judgment without notice to Westmont or a hearing and by

subsequently severing that portion from its factual basis without hearing, notice, or

argument.

       In considering the grant or denial of a bill of review, we may not disturb the trial

court’s ruling absent an abuse of discretion. Interaction, Inc. v. State, 17 S.W.3d 775, 778

(Tex. App.–Austin 2000, pet. denied). A trial court abuses its discretion if it has acted in

an unreasonable or arbitrary manner, or without reference to any guiding rules or

principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). In applying

the abuse of discretion standard, reviewing courts defer to the trial court’s factual

determinations, and the reviewing court does not engage in its own factual review, but

rather, it decides whether the record supports the trial court’s resolution of factual matters.

Garza v. Attorney General of Tex., 166 S.W.3d 799, 808 (Tex. App.–Corpus Christi 2005,

no pet.), citing Goode v. Shoukfeh, 943 S.W.2d 441 (Tex. 1997). If the record supports

the trial court’s evidentiary findings, the reviewing court is not at liberty to disturb them, and

                                                4
is relegated to determining whether the trial court properly applied the law to the facts in

arriving at its decision. Id. at 808, citing State v. $217,590.00 in U.S. Currency, 18 S.W.3d

631, 633-34 (Tex. 2000).

       A bill of review is an equitable proceeding by which a party to a former action seeks

to set aside a judgment that is no longer appealable or subject to a motion for new trial.

Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). To be entitled to a bill of review,

a complainant must prove that he: 1) has a meritorious defense; 2) was prevented from

asserting that defense by the fraud, accident, or wrongful act of his opponent or by official

mistake; and 3) was not guilty of fraud or negligence. Caldwell v. Barnes, 154 S.W.3d 93,

96 (Tex. 2004).

       However, bill of review plaintiffs that claim non-service are relieved of two elements

that otherwise would be required to be proved in such a proceeding. Id. at 96. First, if a

plaintiff was not served, constitutional due process relieves the plaintiff from the necessity

of the need to show a meritorious defense. Id. Second, the plaintiff is relieved from

showing that fraud, accident, wrongful act or official mistake prevented him from presenting

a meritorious defense. Id. at 96-97. Even so, the bill of review plaintiff alleging non-service

must still establish the third and final element required in a bill of review proceeding,

namely, that the judgment was rendered unmixed with any fault or negligence on his part.

Id. One who was not served with process cannot be at fault or negligent in allowing a

default judgment to be rendered. Id.

       In this case, the trial judge found that the county court issued its default judgment

against Westmont on February 21, 2006, based upon a showing by Morris that the



                                              5
following occurred: 1) attempted service was made by Deputy Constable I. Jiminez on at

least two separate days at the Registered Office for Service of Process, at 3555 Timmons

Lane, Suite 460, Houston, Texas 77027, and that neither Nasuad Kermali nor Jerry Burrell

were found to be present; 2) attempted service was made by Deputy Constable Debra

Powers at Westmont’s principal office at 5847 San Felipe, #4650, Houston, Texas, on at

least four separate days and she was advised by the receptionist that no one who would

accept service was in; 3) service was made on the Texas Secretary of State on January

18, 2006, for forwarding to Westmont at 3535 Timmons Lane, Suite 460, Houston, Texas

77027. Westmont has not offered evidence to refute those facts.6

       In advancing its appeal, and based upon the fact that Morris listed and attempted

to serve it at an incorrect address, Westmont contends that the trial court failed to require

Morris to comply with all the requirements for permissible substituted service of the

Secretary of State. Specifically, Westmont emphasizes that the record reveals the

Secretary of State’s certificate lists the incorrect address for Westmont’s registered agent

and reflects that process was returned on January 18, 2006, with the notation ”Not

Deliverable As Addressed, Unable To Forward.”




       6
        Even though the trial court’s order denying Westmont’s quest for a bill of review
was accompanied by findings of fact and conclusions of law, we are not bound by its
findings of fact because we have a complete reporter’s record. Garza v. Attorney General
of Tex., 166 S.W.3d 799, 814 n.15 (Tex. App.–Corpus Christi 2005, no pet.); Tucker v.
Tucker, 908 S.W.2d 530, 532 (Tex. App.–San Antonio 1995, writ denied). Thus, we review
the legal and factual sufficiency of the evidence to support those findings in the same
manner as we review jury findings. Garza v. Attorney General of Tex., 166 S.W.3d at 814
n.15. The final analysis as to whether the trial court erred in denying the petition for a bill
of review remains subject to the abuse of discretion standard of review.


                                              6
       In advancing its argument of lack of citation service, Westmont must show by a

preponderance of the evidence that the judgment was rendered without fault or negligence

on its part. Caldwell v. Barnes, 154 S.W.3d at 96-97. Service of process on corporations

is governed by the Texas Business Corporation Act. That act requires corporations to

maintain a registered agent and registered office and requires that changes in the

registered agent or office be made by filing a statement with the Secretary of State. Tex.

Bus. Corp. Act Ann. art. 2.10 (Vernon Supp. 2008). In instances in which a corporation

has failed to maintain a registered agent in Texas or whenever its registered agent cannot

be found with reasonable diligence at the registered office, the Secretary of State may be

served with process as an agent of the corporation. Id. art. 2.11.

       Here, the record reflects that Morris contacted the Secretary of State to ascertain

the office of Westmont’s registered agent and attempted to serve the agent at the address

provided by the Secretary of State. Although this may have been in compliance with a

literal interpretation of article 2.11 of the Texas Business Corporation Act,7 process was not

actually completed because 3535 Timmons Lane was an incorrect address. Morris then

attempted a new citation on the Secretary of State using the same incorrect address

previously used for service.

       The general presumptions of due service of citation in support of a default judgment

will not be indulged, and the record must show strict compliance with the provided manner

and mode of service of process. TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 707

(Tex. App.–Fort Worth 1982, no writ), citing Whitney v. L & L Realty Corp., 500 S.W.2d 94



       7
           See Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986).

                                              7
(Tex. 1973). However, in determining whether there has been strict compliance with article

2.11, the reviewing court looks to the face of the record and, if the record shows that the

defendant was served in the required manner, and the record shows pleadings which, if

true, would require the defendant to answer, the court may uphold the default. Id. In

TXXN, the court found the pleadings in question were sufficient to require an answer, that

a constable had been unable to serve citation at the corporation’s last known mailing

address, and that another, and subsequent citation, was properly served upon the

Secretary of State as agent for service of process. A certificate of the Secretary of State

showed that a copy of the citation was forwarded by registered mail to the address of the

appellant’s registered office but that it was returned marked “Not Deliverable As

Addressed, Unable To Forward.” Id. The reviewing court found the plaintiff’s pleadings

were sufficient to require an answer and that the citations of service and the certification

by the Secretary of State were sufficient to show that the appellant had been properly

served in compliance with article 2.11. Id. at 708. The court also noted that the manner

of service in that case was the result of the appellant’s failure to comply with the statutory

requirements that were designed to assure it of proper notice of pending suits and not

because of fault on the part of the appellee. Id.

       However, in this case, the record reveals that Westmont had provided the Secretary

of State with the correct name and address of its registered agent. The address listed with

the Secretary of State was 3555 Timmons Lane, Suite 460, Houston, Texas. However,

each citation in the record reflects an incorrect address as 3535 Timmons Lane. Thus, the

record shows that the incorrect address utilized was not the fault of Westmont but that it

was Morris that utilized the incorrect address in each citation, even after being informed

                                              8
that no building existed at 3535 Timmons and that 3555 Timmons was the correct address

for Westmont’s registered agent.

       That being true, no proper service was made upon Westmont, and we are obligated

to hold that the trial court abused its discretion in denying Westmont’s petition for bill of

review. This holding obviates the necessity for discussion of Westmont’s remaining

contentions. Tex. R. App. P. 47.1. The judgment of the trial court is reversed and the

cause remanded to the trial court.



                                      John T. Boyd
                                      Senior Justice




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