REVERSE and REMAND; Opinion Filed April 30, 2020




                                     In The
                           Court of Appeals
                    Fifth District of Texas at Dallas
                              No. 05-19-00692-CV

        ADVANCED RESTORATION SOLUTIONS, LLC AND
    ARCHITECTURAL REFINISHING SOLUTIONS, INC., Appellants
                           V.
               RS REMODELING, LLC, Appellee

                    On Appeal from the 95th District Court
                            Dallas County, Texas
                     Trial Court Cause No. DC-l 8-15842

                        MEMORANDUM OPINION
               Before Justices Myers, Partida-Kipness, and Reichek
                             Opinion by Justice Myers
      Advanced Restoration Solutions, LLC and Architectural Refinishing

Solutions, Inc. bring this restricted appeal from the default judgment rendered in

favor of RS Remodeling, LLC on RS’s suit on a sworn account. Appellants bring

three issues contending error is apparent on the face of the record because they

were not properly served. We reverse the trial court’s judgment.

                                BACKGROUND
      Appellants hired RS to perform construction work. When the construction

was completed, RS demanded payment, but appellants failed to pay. RS sued
appellants with a suit on a sworn account alleging causes of action for breach of

contract, quantum meruit, and promissory estoppel and seeking damages of

$64,800.

      RS alleged appellants were foreign companies organized under the laws of

the State of Georgia with their principal office in Georgia. RS requested that

appellants be served through service on the Texas Secretary of State under section

5.251 of the Texas Business Organizations Code and section 17.044(b) of the

Texas Civil Practice and Remedies Code. See TEX. BUS. ORGS. CODE ANN. §

5.251; TEX. CIV. PRAC. & REM. CODE ANN. § 17.044(b).

      On October 22, 2018, the district clerk issued the citations. The process

server swore in the return of service that he received the citation, petition, and

statutory fee for the case on November 8, 2018, and that he served the secretary of

state the same day.     The secretary of state issued certificates of service on

November 5, 2018, reciting that the secretary of state received the petition on

October 29, 2018, forwarded it by certified mail to appellants on October 30, 2018,

and that the return receipt “was received in this office dated November 2, 2018,

bearing signature.”

      RS moved for default judgment on January 2, 2019. The trial court granted

the motion and signed the default judgment on January 4, 2019. Appellants did not

file any postjudgment motions or any requests for findings of fact and conclusions

of law. Appellants filed notice of restricted appeal on June 10, 2019.
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                            RESTRICTED APPEAL

      To prevail on a restricted appeal, the appellant must show:

      (1) it filed notice of the restricted appeal within six months after the
      judgment was signed; (2) it was a party to the underlying lawsuit; (3)
      it did not participate in the hearing that resulted in the judgment
      complained of and did not timely file any postjudgment motions or
      requests for findings of fact and conclusions of law; and (4) error is
      apparent on the face of the record.

Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see TEX. R.

APP. P. 26.1(c), 30. In this case, the record establishes the first three elements.

We must determine whether appellants met the fourth element, that “error is

apparent on the face of the record.” Alexander, 134 S.W.3d at 848.

                                    SERVICE

      In their third issue, appellants contend the trial court erred by granting the

default judgment because of the conflict in the dates of service on the secretary of

state. Appellants argue the record does not show they were properly served.

      “When a default judgment is challenged by restricted appeal, there are no

presumptions in favor of valid service.” Wachovia Bank of Del., N.A. v. Gilliam,

215 S.W.3d 848, 848 (Tex. 2007) (per curiam). If the record on appeal fails to

affirmatively show strict compliance with the rules and statutes governing service

of citation, the attempted service of process is invalid and of no effect. See Uvalde

Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per

curiam). Any failure to comply with the rules renders the attempted service of

process invalid, and the trial court acquires no personal jurisdiction over the
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defendant. See Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.—Dallas

2008, no pet.). A default judgment based on improper service is void. Id. If

proper service is not affirmatively shown, there is error on the face of the record.

Id.

      When a statute permits service on a government official, such as the

secretary of state, instead of the defendant, and the statute requires the official to

forward service to the defendant at a designated address, “the face of the record

must reflect that service was forwarded to the address required by statute.”

Wachovia Bank, 215 S.W.3d at 850. If the record does not show such service, then

the default judgment will not survive a restricted appeal. Id. If service is on the

secretary of state pursuant to section 5.251 of the Business Organizations Code,

then the secretary of state must “immediately send one of the copies of the process,

notice, or demand to the named entity.” BUS. ORGS. § 5.253(a). Likewise, if

service is on the secretary of state pursuant to section 17.044 of the Civil Practice

and Remedies Code, “the secretary of state shall immediately mail a copy of the

process to the nonresident at the address provided.” CIV. PRAC. § 17.045(a).

      The statements in the return of service are “prima facie evidence of the facts

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

(per curiam). “The weight given to the return is no less when the recitations

impeach the judgment than when they support it.” Id. Similarly, the secretary of



                                         –4–
state’s certificate is “prima facie evidence of the facts stated in the certificate.”

TEX. BUS. ORGS. CODE ANN. § 4.005(a).

      In this case, the secretary of state issued certificates on November 5, 2018,

stating it forwarded service to appellants on October 30, 2018, and that the return

receipts showed appellants received the documents on November 2, 2018.

However, the process server stated under oath in the returns of service that he

served the secretary of state on November 8, 2018. Either the process server’s

returns of service or the secretary of state’s certificates are incorrect, or there was

an earlier service on the secretary of state not shown in the record. If the process

server’s sworn returns of service are correct, and he did not serve the secretary of

state until November 8, then the secretary of state cannot have forwarded the

documents associated with this suit to appellants on October 30. We cannot

presume that service was proper. Wachovia Bank, 215 S.W.3d at 850.

      RS argues that deemed admissions supported the default judgment because

appellants consented to the jurisdiction of the trial court. RS included requests for

admissions with its petition, which included admissions that appellants consented

to the trial court’s jurisdiction.    Appellants did not answer the requests for

admissions. See TEX. R. CIV. P. 198.2(c) (if response to request for admissions is

not timely served, “the request is considered admitted without the necessity of a

court order”). RS cites Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802

(Tex. App.—Waco 2007, no pet.), asserting the court of appeals “ruled that they
                                         –5–
could be employed as proof as part of the default judgment record.” In that case,

the court of appeals determined that the unanswered request for admissions

included in the petition that were deemed by the defendant’s failure to answer

conclusively proved the plaintiff’s damages at a trial before the court on

unliquidated damages. Id. at 805, 811–12. The appeal did not concern the validity

of proof of service, and the court of appeals did not state that the admissions could

be used to establish personal jurisdiction in a default judgment proceeding.

      Even if deemed admissions could waive personal jurisdiction issues in a

default judgment, the request for admissions must be served upon the admitting

party. See TEX. R. CIV. P. 198.1 (“A party may serve on another party . . . .”).

Because the request for admissions was included with the petition, the same

defects of service related to the petition also apply to the request for admissions.

      We conclude the record on appeal fails to affirmatively show strict

compliance with the rules and statutes governing service of citation, which

constitutes error on the face of the record. Therefore, the default judgment in this

case must be reversed.       Wachovia Bank, 215 S.W.3d at 850.             We sustain

appellants’ third issue.

      Having sustained the third issue, we do not address appellants’ first and

second issues. See TEX. R. APP. P. 47.1




                                          –6–
                              CONCLUSION

      We reverse the trial court’s judgment and remand the cause for further

proceedings.




                                          /Lana Myers/
                                          LANA MYERS
                                          JUSTICE



190692F.P05




                                    –7–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

ADVANCED RESTORATION                           On Appeal from the 95th District
SOLUTIONS, LLC AND                             Court, Dallas County, Texas
ARCHITECTURAL REFINISHING                      Trial Court Cause No. DC-l 8-15842.
SOLUTIONS, INC., Appellants                    Opinion delivered by Justice Myers.
                                               Justices Partida-Kipness and Reichek
No. 05-19-00692-CV          V.                 participating.

RS REMODELING, LLC, Appellee

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.

      It is ORDERED that appellants ADVANCED RESTORATION
SOLUTIONS, LLC AND ARCHITECTURAL REFINISHING SOLUTIONS,
INC. recover their costs of this appeal from appellee RS REMODELING, LLC.


Judgment entered this 30th day of April, 2020.




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