      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-09-00002-CV



                          Watts Water Technologies, Inc., Appellant

                                                v.

                           Farmers Insurance Exchange, Appellee


              FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
       NO. C-1-CV-05-000260, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Appellee Farmers Insurance Exchange obtained a no-answer default judgment against

appellant Watts Water Technologies, Inc. The county court at law’s personal jurisdiction against

Watts was based on service on the Texas Secretary of State. Watts asserts that the record does not

affirmatively show compliance with the applicable statute governing service. We agree. We reverse

the judgment of the county court at law and remand for further proceedings.

               On September 15, 2005, Farmers filed suit in county court at law against Watts,

a foreign corporation. Farmers alleges that Watts is liable, based on theories of negligence

and implied warranty, for damages caused to the dwelling of Charles Harlan, Farmers’s insured

and subrogor, by the failure of a dishwasher water hose. After its initial attempt to serve Watts

failed, Farmers amended its petition on November 4, 2005, to provide for service of Watts via
the Texas Secretary of State. The secretary of state forwarded a copy of the citation and petition to

Watts’s mailing address in Massachusetts.

               Watts did not appear or answer in the lawsuit. On September 24, 2008, the

county court at law entered default judgment in favor of Farmers and awarded damages against

Watts in the amount of $10,979.32 plus interest. On January 2, 2009, Watts filed a notice of

restricted appeal. See Tex. R. App. P. 26.1(c), 30.

               To prevail on a restricted appeal, Watts must establish that (1) its filing was within

six months after the judgment was signed, (2) it was a party to the underlying suit, (3) it did not

participate in the hearing that resulted in the default judgment or timely file any post-judgment

motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the

face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the

fourth element is at issue here.

               For a trial court to acquire jurisdiction necessary to support a default judgment upon

substituted service, the pleadings must allege all facts necessary to support the statutory method

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

Redwood Group, L.L.C. v. Louiseau, 113 S.W.3d 866, 868 (Tex. App.—Austin 2003, no pet.). The

relevant portion of Farmers’s pleadings states as follows:


       WATTS is a foreign corporation and may be served with citation by serving the
       Texas Secretary of State via the long arm statute for sending to the defendant for
       service at its home/home address at 815 Chestnut St., North Andover, MA 01845-
       6098.




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                Section 17.044 of the Texas Civil Practice and Remedies Code governs the

substituted service on the secretary of state in this case. See Tex. Civ. Prac. & Rem. Code Ann.

§ 17.044 (West 2008). Subsection (a)(1) of the statute provides for service via the secretary of state

if Watts “is required by statute to designate or maintain a resident agent or engages in business in

this state, but has not designated or maintained a resident agent for service of process.” Id.

§ 17.044(a)(1). However, Farmers has not alleged in its pleadings that Watts has not designated or

maintained a resident agent for service of process. Therefore, Farmers’s pleadings are not sufficient

to support the default judgment based on section 17.044(a)(1). See MobileVision Imaging Servs.,

L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 565-67 (Tex. App.—Dallas 2008,

no pet.); Lozano v. Hayes Wheels Int’l, Inc., 933 S.W.2d 245, 248 (Tex. App.—Corpus Christi 1996,

no writ). Alternatively, subsection (b) of section 17.044 may provide for service on Watts via the

secretary of state in this case if Watts “engages in business in this state, but does not maintain

a regular place of business in this state or a designated agent for service of process.” Tex. Civ. Prac.

& Rem. Code Ann. § 17.044(b). However, Farmers has not alleged in its pleadings that Watts

does not maintain a regular place of business or a designated agent for service of process in Texas.

Therefore, Farmers’s pleadings are also insufficient to support the default judgment based on

section 17.044(b). See MobileVision Imaging Servs., 260 S.W.3d at 565-67; Onnela v. Medina,

785 S.W.2d 423, 425 (Tex. App.—Corpus Christi 1990, no writ).

                Farmers contends that a letter in the record from Farmers’s counsel to the judge

contains allegations sufficient to show that Watts could be properly served in accordance with the

long arm statute by serving the secretary of state. Even if Farmers is correct regarding the contents



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of the letter, however, such evidence cannot support service pursuant to section 17.044 of the

long arm statute and a default judgment based on that service because the applicable facts supporting

service under the long arm statute must be alleged in the pleadings themselves. See Capitol Brick,

722 S.W.2d at 401; Copystatics, Inc. v. Bourn, 694 S.W.2d 613, 614-15 (Tex. App.—Texarkana

1985, writ ref’d n.r.e.); Gourmet, Inc. v. Hurley, 552 S.W.2d 509, 511-13 (Tex. Civ. App.—Dallas

1977, no writ).

                  Farmers’s pleadings fail to allege the required elements of the applicable long arm

statute. Therefore, based on the face of the record, we conclude that the county court at law did not

acquire personal jurisdiction over Watts for the purpose of entering the default judgment at issue.1

We reverse the judgment of the county court at law and remand for further proceedings.




                                                __________________________________________

                                                G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Reversed and Remanded

Filed: May 14, 2010




       1
          Having concluded that Farmers failed to plead facts sufficient to invoke the provisions of
the long arm statute, we need not address Watts’s additional argument that the unliquidated damages
awarded are not supported by legally or factually sufficient evidence.

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