                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00065-CV


ROBERT G. BRYANT D/B/A THE                                         APPELLANT
WESTERN SHOP

                                       V.

LUCCHESE, INC.                                                       APPELLEE


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          FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 2014-003254-3

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                        MEMORANDUM OPINION 1

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      In this restricted appeal in a suit on a sworn account, appellant Robert G.

Bryant d/b/a The Western Shop appeals the default judgment in favor of appellee

Lucchese, Inc. We reverse and remand.




      1
      See Tex. R. App. P. 47.4.
                               Background Facts

      In April 2002, Bryant applied for a line of commercial credit with Lucchese

for his store, The Western Shop. On the application, Bryant listed the street

address and the shipping address as 2833 Castle Hayne Road, Castle Hayne,

North Carolina 28429. He listed only himself as an officer of the company and

provided his home address in Rocky Point, North Carolina. Lucchese provided

goods and sent statements to the Castle Hayne Road address.

      In June 2014, Lucchese sued Bryant for the past due balance of his

account, $37,252.53. Lucchese served Bryant through service on the Secretary

of State of Texas. On July 9, 2014, the Secretary of State forwarded the citation

and petition to Bryant at the Castle Hayne Road address by certified mail, return

receipt requested.    On August 7, 2014, it was returned “Return to Sender,

Unclaimed, Unable to Forward.”

      Bryant failed to appear and answer, and the trial court entered a default

judgment against him on August 27, 2014. On February 27, 2015 Bryant filed his

notice of restricted appeal.

                               Standard of Review

      The law abhors default judgments. Diagnostic Clinic of Longview, P.A. v.

Neurometrix, Inc., 260 S.W.3d 201, 205 (Tex. App.—Texarkana 2008, no pet.)

(citing Titan Indem. Co. v. Old S. Ins. Grp., Inc., 221 S.W.3d 703, 708 (Tex.

App.—San Antonio 2006, no pet.)). In a restricted appeal, an appellant may

directly attack such a judgment.       See Gen. Elec. Co. v. Falcon Ridge

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Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991); Arnell v. Arnell,

281 S.W.3d 549, 551 (Tex. App.—El Paso 2008, no pet.).            To prevail in a

restricted appeal, an appellant must show that (1) a notice of appeal was filed

within six months of the date the complained-of judgment was signed; (2) the

appellant was a party to the suit but did not participate in the hearing that

resulted in the judgment; (3) the appellant did not timely file a postjudgment

motion, request findings of fact and conclusions of law, or file a notice of appeal

within the time permitted under rule of appellate procedure 26.1(a); and (4) the

complained-of error is apparent from the face of the record. See Tex. R. App. P.

26.1(a), (c), 30; Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort Worth

2009, no pet.); Arnell, 281 S.W.3d at 551.

      The long-arm statute allows service of nonresident defendants through the

secretary of state. Tex. Civ. Prac. & Rem. Code Ann. § 17.045 (West 2015) (“If

the secretary of state is served with duplicate copies of process for a

nonresident, the documents shall contain a statement of the name and address

of the nonresident’s home or home office and the secretary of state shall

immediately mail a copy of the process to the nonresident at the address

provided.”). Strict compliance with the long-arm statute is required. Mahon v.

Caldwell, Haddad, Skaggs, Inc., 783 S.W.2d 769, 771 (Tex. App.—Fort Worth

1990, no writ). No presumptions are made in favor of service. Wachovia Bank of

Delaware, N.A. v. Gilliam, 215 S.W.3d 848, 850 (Tex. 2007). If proper service is

not affirmatively shown, error is apparent on the face of the record. Id. “While an

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official’s certificate establishes that process was served and forwarded to the

address provided, unless it certifies that the forwarding address is the one

required by statute, we cannot presume otherwise.”          Id.   Under this court’s

precedent, “the record may be screened to factually determine that the address

provided to the Secretary of State was in fact the home or home office of the

nonresident defendant.” Mahon, 783 S.W.2d at 771.

                                    Discussion

      Bryant argues that the default judgment against him is void because it is

the result of invalid service. He claims that the face of the record fails to reflect

that the forwarding address provided to the Secretary of State was Bryant’s

“home or home office,” as required by the long-arm statute. See Tex. Civ. Prac.

& Rem. Code Ann. § 17.045(a).

      Lucchese acknowledges that the petition does not allege that the Castle

Hayne Road is Bryant’s “home or home office.” The letter sent to the secretary

of state also does not contain “a statement of the name and address of the

nonresident’s home or home office.” Id. But Lucchese argues that because that

address is “the only business address” in the record, service to that address was

proper. Lucchese relies on Mahon, in which we noted that “compliance does not

require the use of magic words, such as ‘home’ or ‘home office.’” 783 S.W.2d at

771. There we held that we can look to the record and when, as in that case,

“[t]here is no other address listed in the contract or on any other documents,” we

can determine that the address given is the “home” or “home office” address. Id.

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      Although the contract in this case lists only one address for The Western

Shop (as both its “Street Address” and its “Shipping Address”), the contract also

contains a different address for Bryant, the party Lucchese sued, labeled as his

“Home Address.”     Screening the record under Mahon does not definitively

resolve this dispute; there is more than one address listed as the defendant’s

address, and the address listed as Bryant’s home address is different than the

one Lucchese provided to the Secretary of State. We therefore cannot presume

that the Castle Hayne Road address was Bryant’s "home or home office” address

as required under the statute. See Wachovia Bank, 215 S.W.3d at 850. The

face of the record does not affirmatively show proper service.       The default

judgment must be set aside. We sustain Bryant’s issue.

                                  Conclusion

      Having sustained Bryant’s issue, we reverse the trial court’s judgment.

Bryant asks that we instruct the trial court that Bryant “must be served with

process before he is required to answer and appear in the suit.” However, our

rules of civil procedure state that when a judgment is reversed on appeal for want

of service, “no new citation shall be issued or served, but the defendant shall be

presumed to have entered his appearance to the term of the court at which the

mandate shall be filed.”   Tex. R. Civ. P. 123; see Kawasaki Steel Corp. v.

Middleton, 699 S.W.2d 199, 202 (Tex. 1985) (stating that remedy for defective

service of process is additional time to answer); Boyd v. Kobierowski,

283 S.W.3d 19, 24 (Tex. App.—San Antonio 2009, no pet.) (stating that after

securing reversal of judgment in restricted appeal based on defective service of

                                        5
process, defendant was effectively served). We remand the cause to the trial

court for further proceedings consistent with this opinion.


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: September 17, 2015




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