REVERSE and REMAND; and Opinion Filed March 18, 2014.




                                           Court of Appeals
                                                            S      In The


                                    Fifth District of Texas at Dallas
                                                        No. 05-13-00162-CV

                                                GREYSTAR, LLC, Appellant
                                                          V.
                                                MELISSA ADAMS, Appellee

                                  On Appeal from the 68th Judicial District Court
                                              Dallas County, Texas
                                       Trial Court Cause No. DC-12-06022

                                                              OPINION
                                        Before Justices O’Neill, Myers, and Brown
                                                Opinion by Justice O’Neill
           The underlying lawsuit in this appeal involves the circumstances surrounding Appellee

Melissa Adams’s termination from employment with appellant Greystar, LLC. 1                                                        Appellee

allegedly served appellant; however, appellant failed to answer. The trial court entered default

judgment on August 23, 2012 and final judgment was entered on September 17, 2012. Appellant

timely filed this restricted appeal.

           In a single issue, appellant argues it was not properly served. Specifically, it contends

error is apparent from the face of the record because (1) the return citation reflects delivery on an

individual other than the registered agent as identified in the citation, and (2) the return of

citation does not affirmatively show that the person who accepted service had authority to do so

     1
       The Original Petition identified Greystar without any corporate designation; however, the text of her pleadings refers to “Greystar, LLC.”
The notice of appeal states, “Defendant, Greystar Management, L.P., incorrectly named as ‘Greystar, LLC’ (‘Defendant’), files this Notice of
Restricted Appeal . . . .”
on its behalf. Appellee argues the appeal should be dismissed for want of jurisdiction, or

alternatively, appellant was properly served.

       We deny appellee’s motion to dismiss. Because appellant has shown error on the face of

the record and was not properly served, we reverse the trial court’s judgment and remand to the

trial court for further proceedings.

                                           Background

       Appellee worked as a community manager for appellant at an apartment complex in

Plano, Texas. In October of 2010, appellee informed appellant she was pregnant. A month later,

she received a review and was then demoted to an assistant manager at a different apartment

complex. Appellee believed she was being retaliated against because of her pregnancy in

violation of the Texas Labor Code. After she was terminated, she filed suit against “Greystar,”

even though she referred to appellee as “Greystar, LLC” in the body of the original petition.

       Citation was issued on May 31, 2012 in the matter of “Melissa Adams vs. Greystar LLC”

and was addressed as follows:

               To:     Greystar LLC
                       Its registered agent CT Corporation System
                       350 N St Paul St STE 2900
                       Dallas, Texas 75201

An affidavit of service was filed on June 11, 2012 stating in relevant part:

               Came to hand on Friday, June 1, 2012 at 10:15 AM,
               Executed at : 1705 COIT ROAD 2900, PLANO, TX 75075
               within the county of COLLIN at 4:15 PM, on Tuesday, June 5,
               2012, by delivering to the within named:

                                       GREYSTAR LLC

               By delivering to its Office Manager, JAMIE DAITCH
               Each, in person a true copy of this

                       CITATION     AND    PLAINTIFF’S                 ORIGINAL
                       PETITION with EXHIBIT A


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Appellant did not answer or otherwise respond to the original petition.

       Appellee filed a motion for default judgment, which the trial court granted on August 23,

2012. A hearing was set for the trial court to hear evidence as to unliquidated damages on

September 17, 2012.      After hearing evidence, the trial court entered a final judgment on

September 17, 2012 awarding appellee $19,925 in past lost earnings, $12,740 for future lost

earnings, $50,000 for compensatory damages, and $5,000 in attorneys’ fees.

       Appellant did not timely file any post-judgment motions, request for findings of fact and

conclusions of law, or a notice of appeal. However, it timely filed a notice of restricted appeal

on January 22, 2013. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (a

party must file notice of a restricted appeal within six months after the judgment was signed).

                         Appellee’s Motion to File Separate Appendix

       Before addressing the merits of the appeal, we must address appellee’s motion to file a

separate appendix. The appendix contains documents from the Equal Employment Opportunity

Commission (“EEOC”), documents from the Secretary of State, and an affidavit. Appellant filed

a response arguing the motion should be denied because appellee did not present these

documents as evidence to the trial court; therefore, they are not a part of the appellate record for

our consideration.

       It is well-established an appellate court may not consider matters outside the record,

which includes documents attached to a brief as an exhibit or an appendix that were not before

the trial court. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas

1987, no writ); see also Robb v. Horizon Cmty. Improvement Ass’n, 417 S.W.3d 585, 589 (Tex.

App.—El Paso 2013, no pet.). However, we may consider submitted documents that are outside

the record for the limited purpose of determining our own jurisdiction. TEX. GOV’T CODE ANN.




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§ 22.220(c) (West Supp. 2013); Harlow Land Co. v. City of Melissa, 314 S.W.3d 713, 717 n. 4

(Tex. App.—Dallas 2010, no pet.).

       We agree with appellee that exhibits B and C, the documents from the Secretary of State,

are relevant to our determination of jurisdiction as raised in her motion to dismiss. In order to

determine which sections of the Texas Business Organizations Code apply, we must know the

structures of the business organizations involved and whether they are properly registered in this

State. Accordingly, we grant her motion to file a separate appendix as to these documents only.

       However, the EEOC documents and the affidavit of the process server are not relevant to

any issue for the purpose of determining our jurisdiction. Moreover, although appellee argues

the EEOC documents were “referenced in the record” because “The Notice of Right to File a

Civil Action recites that the case was processed by the EEOC,” we refuse to allow in ninety-

seven pages of information regarding the EEOC investigation that the trial court never

considered and was merely “referenced” in another document. Accordingly, we deny appellant’s

motion to include Exhibits A and D. We now turn to appellee’s motion to dismiss.

                                        Motion to Dismiss

       In her brief and in a separate motion, appellee challenges this court’s jurisdiction and

requests dismissal of the appeal. She contends because appellant’s general partner, GREP

General Partner, LLC, has never registered with the Secretary of State to conduct business in

Texas, appellant has violated provisions of the Texas Business Organizations Code and cannot

maintain this appeal. Appellant responds Greystar Management Services, L.P. is a properly

registered entity in Texas, and the Texas Business Organizations Code requires nothing more of

it; therefore, appellee’s argument is without merit.

       Section 9.001 of the Texas Business Organizations Code requires a foreign entity to

register with the Secretary of State in order to “transact business in this state.” TEX. BUS. ORG.


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CODE ANN. § 9.001(a) (West 2012). Attached to her motion to dismiss, appellee included a

“Certificate of Fact” from the Office of the Secretary of State stating a “diligent search of the

records of this office was performed on the name of GREP General Partners, LLC,” and no

records of any filings on behalf of the LLC were located. Based on this information, appellee

asserts appellant has violated section 9.001(a) because “A limited partnership can legally act

only through its General Partner,” citing Texas Business Organizations Code Annotated section

153.152.

        Section 153.152 states the following:

                (a)     Except as provided by this chapter, the other limited
                partnership provisions, or a partnership agreement, a general
                partner of a limited partnership:

                        (1)      has the rights and powers and is subject to the
                        restrictions of a partner in a partnership without limited
                        partners; and

                        (2)    has the liabilities of a partner in a partnership
                        without limited partners to the partnership and to the other
                        partners.

                (b)    Except as provided by this chapter or the other limited
                partnership provisions, a general partner of a limited partnership
                has the liabilities of a partner in a partnership without limited
                partners to a person other than the partnership and the other
                partners.

TEX. BUS. ORG. CODE ANN. § 153.152 (West 2012). We agree with appellant that this provision

has no bearing on whether or how a limited partnership conducts business in this State,

particularly in regards to whether appellant can maintain this appeal.

        Because appellant is organized under the laws of Delaware, it is considered a “foreign

entity.” Id. § 1.002(28). Section 9.051(a) prevents a foreign filing entity from maintaining “an

action, suit, or proceeding in a court of this state . . . unless the foreign filing entity is registered

in accordance with this chapter.” Documentation attached to appellee’s motion to dismiss

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confirms appellant is registered to conduct business in this State; therefore, appellant is not in

violation of sections 9.001 and 9.051. As such, contrary to appellee’s assertion, appellant is not

prohibited by section 9.051(a) from maintaining this appeal. Moreover, even if we were to

conclude that GREP General Partners, LLC’s failure to register impacted appellant’s ability to

maintain a suit, section 9.051(c) specifically states that “the failure of a foreign filing entity to

register does not: . . . (2) prevent the entity from defending an action, suit, or proceeding in a

court in this state.” Id. § 9.051(c)(2). As such, appellant would not have been prevented from

defending the underlying lawsuit, and therefore, we will not prevent it from bringing this appeal.

            Appellee’s motion to dismiss is denied.

                     Standard of Review for a Restricted Appeal and Default Judgment

            To prevail on its restricted appeal, appellant must establish: (1) it filed its notice of

restricted appeal 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 judgment complained

of and did not timely file any post-judgment motions or request findings of fact and conclusions

of law; and (4) error is apparent on the face of the record. Alexander, 134 S.W.3d at 848; Lytle

v. Cunningham, 261 S.W.3d 837, 839 (Tex. App.—Dallas 2008, no pet.) (citing TEX. R. APP. P.

26.1(c)). For purposes of a restricted appeal, the record consists of all papers filed in the appeal,

including the reporter’s record. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.—Dallas

2011, no pet.). 2

            There is no presumption in favor of proper issuance, service, and return of citation.

Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Lytle, 261 S.W.3d at 841. If

the record fails to affirmatively show strict compliance with the rules of civil procedure

governing issuance, service, and return of citation, there is error apparent on the face of the

    2
        There is no reporter’s record in this case.



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record and attempted service of process is invalid and of no effect. Lytle, 261 S.W.3d at 840.

When the attempted service of process is invalid, the trial court acquires no personal jurisdiction

over the defendant, and the default judgment is void. Id.

                                             Discussion

       We first acknowledge that the original petition and citation was addressed to “Greystar”

and “Greystar, LLC,” rather than Greystar Management Services, L.P. However, neither party

has contested that Greystar Management, Services, L.P. is the appropriate entity involved in the

underlying lawsuit. In fact, in its brief, appellant acknowledges “Greystar was misnamed in the

Original Petition and Citation . . ., but not misidentified; Greystar does not contend that there is

another entity named ‘Greystar’ or ‘Greystar LLC’ that was actually but unintentionally served

with process in this matter.” It further admits appellee attempted service on the correct entity,

but did so improperly. Because appellant has not argued misnomer as error apparent on the face

of the record, we need not address the discrepancy between the petition, citation, and party name

on appeal.

       To the extent appellee argues appellant participated in the underlying proceedings, we

find her argument without merit. Appellee admits appellant did not answer or participate in the

court hearing that resulted in the default judgment at issue, but contends appellant participated in

the EEOC proceeding that resulted in the suit. Appellee seems to imply that because appellant

allegedly participated in those proceedings and received notice of the State of Texas right to sue

letter, that somehow equates to participation and notice of the underlying lawsuit. We cannot

agree. The right to sue letter simply advised appellee of her right to bring a private civil action in

state court within sixty days.     By simply receiving this notice, appellant would not know if

appellee did in fact file a lawsuit against it. Moreover, the law is well-settled that actual notice to

a defendant, without proper service, is not sufficient to convey jurisdiction upon a court to render


                                                 –7–
default judgment. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); MobileVision Imaging

Servs., L.L.C. v. LifeCare Hosp. of N. Tex, L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008,

no pet.). As such, the only element of a restricted appeal at issue is whether appellant has shown

error on the face of the record because of defective service and return of citation.

       Appellant first argues error is apparent on the face of the record because the return of

citation reflects delivery on an individual other than the registered agent identified in the citation.

Appellee responds the citation reflects service on a manager qualified to accept service on behalf

of appellant.

       A mistake in stating the defendant’s name in the citation has been consistently held to be

fatally defective. Pharmakinetics Lab., Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.—San

Antonio 1986, no writ). The same rule likewise applies where the citation states one name, but

then was served on a person with a different name. Id.; Sw. Sec. Sevs., Inc. v. Gamboa, 172

S.W.3d 90, 93 (Tex. App.—El Paso 2005, no pet.) (finding service defective when the return

receipt was signed by Guillermo Montes but Jesus Morales was the individual designated to

receive service); Bank v. Miller, No. 05-95-01477-CV, 1996 WL 730592, at *3 (Tex. App.—

Dallas Dec. 16, 1996, writ denied) (not designated for publication) (finding service defective

when return receipt was not signed by the person appointed or by the authorized agent).

       Here, the citation was addressed to Greystar LLC “its registered agent CT Corporation

System.” Thus, CT Corporation System is the only agent whose authority is apparent from the

face of the record to receive service. However, the affidavit of service provides service was

obtained by delivering citation to Greystar LLC “by delivering to its’ Office Manager, JAMIE

DAITCH.” Although appellee argues in its brief that the petition and citation were delivered to

Jamie Daitch because “CT refused to accept service,” appellee relies on a process server’s




                                                 –8–
affidavit attached to her appendix that is not proper evidence before this court for consideration.

See Perry, 741 S.W.2d at 534.

       Because the record shows the person who accepted service was not the entity stated on

the citation, the service of process is fatally defective. Pharmakinetics Labs, 717 S.W.2d at 706.

Without affirmatively showing on the face of the record that appellant was properly served, the

trial court had no personal jurisdiction to enter a default judgment. Having found error on the

face of the record, we need not address appellant’s second argument regarding whether Jamie

Daitch had authority to accept service. We sustain appellant’s sole issue.

                                           Conclusion

       The judgment of the trial court is reversed and the cause is remanded for further

proceedings.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE


130162F.P05




                                               –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

GREYSTAR, LLC, Appellant                            On Appeal from the 68th Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-00162-CV         V.                       Trial Court Cause No. DC-12-06022.
                                                    Opinion delivered by Justice O’Neill.
MELISSA ADAMS, Appellee                             Justices Myers and Brown participating.

        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 appellant GREYSTAR, LLC recover its costs of this appeal from
appellee MELISSA ADAMS.


Judgment entered this 18th day of March, 2014.




                                                  /Michael J. O'Neill/
                                                  MICHAEL J. O'NEILL
                                                  JUSTICE




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