                              Fourth Court of Appeals
                                     San Antonio, Texas
                                   DISSENTING OPINION
                                        No. 04-13-00609-CV

                                         Herlinda ARNOLD,
                                              Appellant

                                         v.
                            Worldwide Clinical Trials a/k/a
                   WORLDWIDE CLINICAL TRIALS a/k/a WCT Corporation,
                                     Appellee

                     From the County Court at Law No. 10, Bexar County, Texas
                                      Trial Court No. 381779
                             Honorable Jason Pulliam, Judge Presiding

Opinion by: Catherine Stone, Chief Justice
Dissenting Opinion by: Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 13, 2014

           As noted by the majority, Arnold contends her initial attempt to serve WCT through CT

Corp. was effective service because she served WCT’s registered agent using WCT’s assumed

name — “Worldwide Clinical Trials.” I agree Rule 28 of the Texas Rules of Civil Procedure

allows Arnold to sue WCT in its assumed name. See TEX. R. CIV. P. 28. However, I do not agree

with the majority’s conclusion that Rule 28, by extension, imposes a duty on a registered agent to

know its clients’ assumed or common names or accept service in those names.               See id.

Accordingly, I respectfully dissent. Further, having also examined Arnold’s second appellate issue

and finding it without merit, I would affirm the trial court’s judgment.
Dissenting Opinion                                                                     04-13-00609-CV


                                                Rule 28

          Rule 28 of the Texas Rules of Civil Procedure provides: “[a]ny partnership, unincorporated

association, private corporation, or individual doing business under an assumed name may sue or

be sued in its partnership, assumed or common name for the purpose of enforcing for or against it

a substantive right.” TEX. R. CIV. P. 28 (emphasis added). However, Rule 28 is silent as to whether

a registered agent has a duty to accept service for a represented entity under the entity’s assumed

or common name — or even know that name. Despite this silence, the majority concludes that

“[b]ecause the law permits WCT to be sued in its assumed name, CT Corp. could be served with

process using WCT’s assumed name, and the record reflects that service was effected on CT Corp.,

and thereby on WCT, on November 26, 2012, prior to the expiration of the limitations period.”

Majority Op. at ______.

          To support its conclusion, the majority cites to authority for the proposition that “service

effected on a registered agent within the scope of its agency is imputed to the litigant.” See PNS

Stores, Inc. v. Rivera, 379 S.W.3d 267, 274 (Tex. 2012). The majority believes CT Corp. had a

duty within the scope of its agency relationship with WCT to know and accept service for WCT

under its common or assumed names. I disagree.

          The Texas Business Organizations Code makes it clear the only duties of a registered agent

are to:

          (1) receive or accept, and forward to the represented entity at the address most
          recently provided to the registered agent by the represented entity, or otherwise
          notify the represented entity at that address regarding, any process, notice, or
          demand that is served on or received by the registered agent; and

          (2) provide the notices required or permitted by law to be given to the represented
          entity to the address most recently provided to the registered agent by the
          represented entity.




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Dissenting Opinion                                                                  04-13-00609-CV


TEX. BUS. ORGS. CODE ANN. § 5.206(a)(1)–(2) (West 2013) (emphasis added). Nowhere in section

5.206 is the registered agent required to know the assumed or common names of its represented

entities. See id. Despite Arnold’s argument that “it seems reasonable for a registered agent to be

required to contact its own represented parties to discern which, if any, of those entities use the

assumed or common name indicated on the notice or citation,” such a duty is not apparent from

the face of section 5.206.

        When construing a statute, we presume every word excluded from a statute is excluded for

a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 636, 540 (Tex. 1981); Hardy v. Matter,

350 S.W.3d 329, 335 (Tex. App.—San Antonio 2011, pet. dism’d). “Only when it is necessary to

give effect to the clear legislative intent can we insert additional words or requirements into a

statutory provision.” Cameron, 618 S.W.2d at 540 (emphasis added); see Laidlaw Waste Sys.

(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). The legislative intent as to the

duties imposed on a registered agent is clear from the plain language of section 5.206 — the

legislature intended to impose only certain duties on a registered agent, and those duties do not

include knowing the common or assumed names of represented entities or accepting service in a

represented entity’s common or assumed name. See TEX. BUS. ORGS. CODE ANN. § 5.206(a).

Because a registered agent does not have a statutory duty to know the assumed or common names

of its represented entities, it likewise cannot have a duty to accept service attempted under those

assumed names. See id. Therefore, the majority’s conclusion that “CT. Corp. had the duty to

receive or accept and forward the process or lawsuit to WCT” is unsupported as CT Corp. could

not accept and forward process to WCT when it had no duty to know, and the record reflects in

fact did not know, who Arnold was attempting to serve. See Majority Op. at ______.




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Dissenting Opinion                                                                           04-13-00609-CV


        The consequences of the majority’s decision create a troubling world for registered agents

because it places a duty on registered agents to know each and every assumed name of their

represented entities to avoid running afoul of the requirements of the agency relationship. Aside

from the obvious burden of knowing each and every assumed or common name of their represented

entities, a registered agent will also have to cope with the practical consequences of representing

multiple entities with the same assumed or common name.

        For instance, a plaintiff could, under Rule 28, name “Delta” as a defendant and attempt

service on a registered agent that represents: Delta Airlines, Delta Faucets, Delta Dental, Delta

College, Delta Marine, Delta Power Equipment, Delta Waterfowl Foundation, Delta Consolidated

Industries, Delta Institute, or Delta Children. What mechanism exists to address this situation if,

after doing its due diligence, the registered agent is unsure which “Delta” the plaintiff meant to

sue? According to the majority, it would not be sufficient to advise the plaintiff that the agent

represents one or more entities with that common name. What happens if a plaintiff is attempting

to sue a single franchise of a larger corporation that allows thousands of individual operators to

work under the same assumed name, e.g. McDonald’s and one of its over 3,000 U.S. franchises? 1

How is a registered agent that represents possibly hundreds or thousands of McDonald’s franchises

supposed to know which one the plaintiff meant by the assumed name of “McDonald’s”? The

answer is simple, the registered agent has no duty to know such things. See TEX. BUS. ORGS. CODE

ANN. § 5.206(a)(1)–(2). Accordingly, the registered agent cannot be expected to accept service

under the assumed name of one of its represented entities. See TEX. R. CIV. P. 28.

        I recognize the court has also cited other authority to support its holding. See Majority Op.

at ______. However, each of those cases is distinguishable. In neither Cummings, Chilkewitz, nor


1
  Data re: McDonald’s U.S. Franchising, http://www.aboutmcdonalds.com/mcd/franchising/us_franchising.html
(last visited Jul. 30, 2014).

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Dissenting Opinion                                                                    04-13-00609-CV


Northwest Sign Co. did the registered agent refuse service due to confusion with whom the plaintiff

intended to sue using an assumed name. See Cummings, 799 S.W.2d at 407; Chilkewitz, 22 S.W.3d

at 830; Nw. Sign Co., 680 S.W.2d at 809. Accordingly, none of these cases are relevant to the

current facts surrounding Arnold’s attempted service with CT Corp., and none of these cases

address my concerns with the majority’s holding. For the reasons set forth above, I would hold

Arnold did not serve WCT in a timely manner.

                                          Due Diligence

        Because I disagree with the majority’s conclusion with regard to service under Rule 28, I

must consider whether Arnold diligently accomplished service on WCT after the limitations period

expired. If so, the judgment should be reversed, albeit for a reason different than that relied upon

by the majority.

        In the event service is diligently accomplished after a limitations period has expired, the

date of service relates back to the date of filing the suit. See Proulx v. Wells, 235 S.W.3d 213, 215

(Tex. 2007). The plaintiff bears the burden of presenting evidence regarding the efforts that were

made to serve the defendant and must explain every lapse in effort or period of delay. Id. at 216.

This court assesses diligence by determining “whether the plaintiff acted as an ordinarily prudent

person would have acted under the same or similar circumstance and was diligent up until the time

the defendant was served.” Id. In order to make this factual determination, this court examines

the time it took to secure service and the effort or lack thereof expended by the plaintiff in

procuring service. See id. In some instances, a plaintiff’s explanation of its efforts to serve the

defendant may demonstrate a lack of due diligence as a matter of law, such as when one or more

lapses between service efforts are patently unreasonable or unexplained. See id.




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Dissenting Opinion                                                                   04-13-00609-CV


        Here, it is undisputed that Arnold’s sixty-day window to bring suit against WCT closed in

mid-December 2012, and service through the Texas Secretary of State was accomplished in early

March, 2013. After what I consider Arnold’s first failed attempt at service on November 26, 2012,

she made two other efforts at service: (1) she attempted to serve WCT’s registered agent on January

10, 2013, and (2) she sent service through the Texas Secretary of State on February 27, 2013.

Between service attempts, Arnold attests she attempted to discover WCT’s correct legal name by

searching: LexisNexis, the Texas Secretary of State’s website, and WCT’s own website. However,

my review of the summary judgment evidence reveals Arnold’s lapses between her efforts to serve

WCT were patently unreasonable. Specifically, Arnold’s attempt at service on January 10, 2013,

was unreasonable; therefore, an unjustified lapse between service efforts exists in the over two

month span of mid-December 2012 and February 27, 2013.

        On January 10, 2013, Arnold informed CT Corp. that she specifically intended to serve a

party known as “WORLDWIDE CLINICAL TRIALS, INC.”                        Arnold affirmed she had

researched LexisNexis to determine the proper name of WCT for purposes of service. However,

Arnold’s own summary judgment evidence, consisting of a copy of a LexisNexis search of the

corporate filings under the name “Worldwide Clinical Trial” in the state of Texas, reveals that the

specific entity she wished to serve had a status listed as both “inactive” and “terminated.” I would

hold it is patently unreasonable to attempt to serve an entity that one knows or should have known

is “inactive” and “terminated” in the state of Texas. Accordingly, there is no summary judgment

evidence to explain the two month lapse in Arnold’s reasonable efforts at serving WCT between

the limitations deadline of mid-December and February 27, 2013. Therefore, I would reject

Arnold’s argument and hold she did not meet her burden to show she diligently accomplished




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Dissenting Opinion                                                                    04-13-00609-CV


service on WCT after the expiration of the sixty-day window to bring a civil action against WCT

under section 21.254. See Proulx, 235 S.W.3d at 215; See TEX. LAB. CODE ANN. § 21.254.

        Arnold, however, contends her efforts were analogous to those found diligent by the Sixth

Court of Appeals in Sibley v. Kaiser Found. Health Plan of Texas. See 998 S.W.2d 399, 405–06

(Tex. App.—Texarkana 1999, no pet.). In Sibley, as here, the plaintiff made multiple attempts at

personal service through a registered agent that were refused by the registered agent because it did

not know to which version of the represented entity the documents should be provided. Id. at 405.

Two months after attempted service failed, the plaintiff in Sibley received permission to utilize

substituted service and completed service via that method. Id. at 406. After considering the efforts

of the plaintiff, the Sixth Court of Appeals noted:

        It is clear that Sibley took reasonable and timely steps to attempt to obtain service.
        It is equally clear that any confusion was caused by [the defendant’s] use of
        multiple names for its various organizations and the apparent inability of its
        registered agent to provide information that would permit a party to pinpoint the
        actual name of its opponent. In such a situation, it would be unfair to penalize
        Sibley. . .

Id. Sibley is distinguishable from the present case. Unlike Sibley, the record in this case reflects

Arnold did not take reasonable steps to serve WCT through its registered agent. Specifically, as

discussed above, Arnold undertook the patently unreasonable step of attempting to serve an entity

she knew or should have known was both “inactive” and “terminated.”

        Moreover, I disagree with a portion of the court’s reasoning in Sibley. In that case, the

court seemed to criticize and take into account “the apparent inability of [the] registered agent to

provide information that would permit a party to pinpoint the actual name of its opponent.” Id.

However, as discussed above, I would hold a registered agent has no duty to know the assumed or

common names of its represented entities under a plain reading of section 5.206, and I would

acknowledge the statute likewise does not create a duty to provide an aspiring plaintiff information

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Dissenting Opinion                                                                 04-13-00609-CV


to facilitate service. See TEX. BUS. ORGS. CODE ANN. § 5.206(a). Accordingly, I would decline

to follow Sibley or reach a similar result regarding Arnold’s diligence.

                                          CONCLUSION

        Because I believe the majority erred by interpreting Rule 28 in such a way as to impose

new burdens on registered agents. Given the foregoing belief, I contend the majority’s decision to

hold Arnold’s November 26, 2012 attempted service on WCT effective and timely was also

erroneous. It follows that the majority should have addressed Arnold’s second issue regarding due

diligence and find it without merit. In sum, because I believe Arnold’s attempted service was not

effective and she did not exercise due diligence in serving WCT, I would overrule her issues and

affirm the trial court’s judgment.



                                                  Marialyn Barnard, Justice




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