


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00066-CV
 
WTW Americas, Inc.,
                                                                                    Appellant
 v.
 
Systems Integration, Inc.,
                                                                                    Appellee
 
 
 

From the 40th District Court
Ellis County, Texas
Trial Court No. 70849
 

O p i n i o n

 
Systems Integration, Inc. obtained a default
judgment against WTW Americas, Inc., a Canadian entity, after serving the
Secretary of State with process under the Texas long-arm statute.  See Tex. Civ. Prac. & Rem. Code Ann. §
17.044 (Vernon 1997).  The trial court denied WTW’s motion for new trial, and
WTW raises three issues in this appeal.  We will reverse and remand.
After the default judgment had been entered, WTW,
unaware of the default judgment, filed an answer and a counterclaim and a
third-party petition against Holcim Texas Limited Partnership, which then
counterclaimed against WTW.  WTW claims that when the default judgment was
entered, the default judgment disposed of, and the trial court intended to
dispose of, all claims and parties.[1]  We
agree.
“A judgment is final for purposes of appeal if it
disposes of all pending parties and claims in the record, except as necessary
to carry out the decree.”  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001).  No presumption of finality follows a default judgment.  See id.
at 199-200.  But a default judgment is deemed final if it expresses an
unequivocal intent to finally dispose of the case.  In re Burlington Coat
Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005).  Absent
a conventional trial on the merits, a judgment is final “if and only if either
it actually disposes of all claims and parties then before the court,
regardless of its language, or it states with unmistakable clarity that it is a
final judgment as to all claims and all parties.”  Lehmann, 39 S.W.3d at
192-93.  Because the trial court indisputably did dispose of, and intended to
dispose of, all parties and claims at the time it entered the default
judgment, we have jurisdiction to address the merits of this appeal.
The record shows that Systems duly served the
Secretary of State.  Upon being served, the long-arm statute requires the
Secretary of State to mail a copy of the process to the nonresident by
registered mail or by certified mail, return receipt requested.  Tex. Civ. Prac. & Rem. Code Ann.
§ 17.045(a), (d) (Vernon Supp. 2006).
For the trial court to have personal jurisdiction
over the defendant, the record must affirmatively show that the Secretary of
State forwarded a copy of the citation and attached original petition to the
defendant.  See Whitney v. L & L Realty Corp., 500 S.W.2d 94,
96-97 (Tex. 1973); Redwood Group, L.L.C. v. Louiseau, 113 S.W.3d 866,
870 (Tex. App.—Austin 2003, no pet.).  This requirement is typically met by
filing with the trial court what has become known as a Whitney certificate. 
See Whitney, 500 S.W.2d at 96; Wright Bros. Energy, Inc. v. Krough, 67
S.W.3d 271, 274 n.1 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
In its first issue, WTW contends that the record
is silent on the question of whether the Secretary of State forwarded the
documents as required.  Systems concedes that there was no Whitney
certificate or any other form of proof of mailing by the Secretary of State in
the record before the default judgment was obtained.  Instead, Systems, principally
citing Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990), argues that WTW
waived its complaint about the absence of a Whitney certificate because WTW
did not bring it to the trial court’s attention and, in its motion for new
trial and appellate brief, judicially admitted that it had been served by the
Secretary of State.
WTW was not required to raise the absence of the Whitney
certificate in its motion for new trial.  See Wilson, 800 S.W.2d at 837
(citing Tex. R. Civ. P. 324). 
And we decline to find waiver based on alleged judicial admissions that WTW was
served by the Secretary of State.  See Benefit
Planners, L.L.P. v. RenCare, Ltd., 81
S.W.3d 855, 861 (Tex. App.—San Antonio 2002, pet. denied) (referring to strict
standards governing judicial admissions in default judgment context); see
also Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex. 1993) (testimony constituting conclusive judicial admission must be, inter alia,
deliberate, clear and unequivocal).  WTW did not judicially admit that it was duly
served in accordance with section 17.045 by registered mail or by
certified mail, return receipt requested, and we will
not use an implication or inference to create a judicial admission,
particularly in the default judgment context.  See Benefit Planners, 81
S.W.3d at 861; see also Anderson v. Vaughn, 2006 WL 1211094, at *2 (Tex. App.—Amarillo May 3, 2006, no pet. h.) (mem. op.) (rejecting waiver and judicial
admission argument in default judgment context).
The trial court erred in entering the default
judgment against WTW because it did not have personal jurisdiction over WTW.  See
Roberts v. Niekerk, 730 S.W.2d 341, 343 (Tex. App.—Dallas 1987, writ
ref’d).  WTW’s first issue is sustained.  Because the first issue is
dispositive, we do not consider the remaining two issues.  We reverse the
default judgment and remand the cause for further proceedings.
 
 
 
BILL VANCE
Justice
 
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed
and remanded
Opinion
delivered and filed March 14, 2007
[CV06]
 




[1]               WTW filed a response to our request
for briefing on whether the default judgment was interlocutory, but Systems did
not file a reply to WTW’s response.


