Opinion issued August 9, 2012




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-10-01118-CV
                           ———————————
                        DAVE MARQUEZ, Appellant
                                       V.
   NIKKI GREIG, ON BEHALF OF TEXAS STARS CHEERLEADING,
                          Appellee



                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 09-DCV-176744



                         MEMORANDUM OPINION

      Appellant Dave Marquez brings this restricted appeal from a default

judgment rendered in favor of appellee Nikki Greig on behalf of Texas Stars

Cheerleading. Marquez argues that error appears on the face of the record because
the Secretary of State’s certificate of service of process indicates that the citation

and original petition were delivered to an incorrect address. We reverse the default

judgment and remand for further proceedings.

                                    Background

      Nikki Greig filed a petition in district court alleging that Dave Marquez had

contracted with her to provide dance and cheerleading choreography services. She

alleged that Marquez performed pursuant to that contract, but his services were not

of the grade and quality that he had represented. The petition asserted multiple

causes of action including breach of contract, violations of the Texas Deceptive

Trade Practices Act, and fraud.

      In the petition, Greig identified the Texas Secretary of State as the agent for

service of process because Marquez lived at “2155 North Fairview” in Santa Ana,

California. The citation likewise reflects that Marquez’s street address was “2155

North Fairview.”     However, the Secretary of State’s certificate of service of

process reflects that copies of the citation and petition were forwarded by certified

mail to “2155 Northfairview” in Santa Ana, California. The certificate further

reflects that the return receipt bore a notation of “unclaimed.” Marquez never

answered or otherwise appeared in the trial court until filing his notice of appeal.

      Several weeks after the Secretary of State’s certificate was filed in the trial

court, Greig filed a motion for default judgment.             Although the motion

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acknowledged that the return receipt bore a notation of “unclaimed,” it asserted

that the Secretary of State had served Marquez with copies of the citation and

petition. The motion stated that Marquez’s last known address was “2155 North

Fairview” in Santa Ana, California. A “Plaintiff’s Certificate of Last Known

Address” signed by Greig’s counsel reflects that same address.

      The trial court held a hearing on Greig’s motion for default judgment.

Following the hearing, the trial court signed an order granting the motion and

rendering against Marquez a money judgment of $11,048.87 for damages,

$4,125.00 for attorney’s fees, and court costs. A notice of default judgment was

sent to Marquez at “2155 North Fairview” in Santa Ana, California.

      After the default judgment was signed by the trial court, Marquez timely

filed notice of a restricted appeal.

                                       Analysis

      In his sole issue, Marquez argues that error is apparent on the face of the

record because it shows that the Secretary of State forwarded the citation and

petition to an incorrect address. He contends that “2155 North Fairview,” as his

address appears in Greig’s petition, is not the same as “2155 Northfairview,” as his

address appears in the Secretary of State’s certificate of service of process.

Therefore, Marquez argues, the record does not show compliance with the rules




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governing service of process, the default judgment must be reversed, and the case

must be remanded for a new trial.

      Although Greig has not filed an appellee’s brief, she has filed a motion to

dismiss the appeal. She contends that the record demonstrates that Marquez was

properly served at his home address. This court ordered that Greig’s motion be

carried with submission of the case.

      Generally, if a defendant does not timely file an answer and a return of

service has been on file for ten days, the plaintiff may take judgment by default.

See TEX. R. CIV. P. 107(h) & 239. The defendant can prevail on a restricted appeal

only if (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. TEX. R.

APP. P. 26.1(c) & 30; Ins. Co. of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009)

(per curiam). The only matter at issue in this restricted appeal is whether error is

apparent on the face of the record. The face of the record consists of all the papers

on file in the appeal. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269,

270 (Tex. 1997) (per curiam).




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      For a trial court to have jurisdiction over a nonresident defendant, the

Secretary of State must forward copies of the citation and petition to the defendant

as required by the long-arm statute. Comm’n of Contracts of Gen. Exec. Comm. v.

Arriba, Ltd., 882 S.W.2d 576, 585 (Tex. App.—Houston [1st Dist.] 1994, no pet.)

(citing Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973)). Under the

long-arm statute, the Texas Secretary of State is an agent for service of process on

a nonresident defendant who 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,

in any proceeding arising out of business done in Texas and to which the

nonresident defendant is a party.      See TEX. CIV. PRAC. & REM. CODE ANN.

§ 17.044(b) (West 2008). Once the Secretary of State is served with duplicate

copies of process for a nonresident defendant that reflect the nonresident’s name

and home or home office address, it must immediately mail to the provided address

a copy of the process by registered or certified mail with return receipt requested.

See id. § 17.045(a), (d).

      In a restricted appeal, there is no presumption in favor of valid service of

process. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per

curiam); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885

(Tex. 1985) (per curiam). The failure to affirmatively show strict compliance with

the rules governing service of process renders the attempted service invalid and of

                                          5
no effect. Uvalde Country Club, 690 S.W.2d at 885. However, absent fraud or

mistake, the Secretary of State’s certificate of service of process is conclusive

evidence that it received and forwarded service as required by statute. Capitol

Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986).

      Marquez analogizes this case to Royal Surplus Lines Insurance Co. v.

Samaria Baptist Church, 840 S.W.2d 382 (Tex. 1992) (per curiam). In that case,

the plaintiff unsuccessfully attempted service of process on the defendant’s

registered agent. Id. at 382. Pursuant to the Texas Non-Profit Corporation Act, the

plaintiff then attempted service through the Secretary of State. Id. The address of

the defendant’s registered agent was listed in the Secretary’s public records as

“1201 Bessie.” Id. at 383. However, the Secretary’s certificate reflected that it

sent the citation and petition to “1201 Bassie,” and the letter was returned with the

notation “unclaimed.”    Id. The defendant did not appear, and the trial court

rendered a default judgment. Id. at 382. On appeal, the court of appeals reversed

the default judgment and remanded for a new trial. Id. at 383. In denying the

plaintiff’s application for writ of error, the Supreme Court noted that “[a]

typographical error in the forwarding address typed by the Secretary is grounds to

set aside a default judgment based on substituted service.” Id.

      This case is analogous to Royal Surplus Lines.          There are numerous

indications in the record that Marquez’s address is “2155 North Fairview,” but the

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Secretary of State’s certificate indicates that the citation and petition were

forwarded to “2155 Northfairview.” The return receipt, like the one in Royal

Surplus Lines, indicates that the process sent to that address was “unclaimed.”

Given the notation on the return receipt and the multiple indications in the record

that Marquez’s actual address differed, if only slightly, from the address to which

the Secretary of State forwarded service of process, we hold that the record does

not affirmatively show strict compliance with the rules governing service of

process. See Uvalde Country Club, 690 S.W.2d at 885. Accordingly, we sustain

Marquez’s issue on appeal, reverse the default judgment, and remand the case for

further proceedings. See Royal Surplus Lines, 840 S.W.2d at 383.

                                   Conclusion

      We deny as moot Greig’s motion to dismiss the appeal. We reverse the

judgment and remand the case for further proceedings.




                                            Michael Massengale
                                            Justice

Panel consists of Justices Bland, Massengale, and Brown.




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