Opinion
NO. 01-14-01028-CV
01-05-2016
BROWSERWEB MEDIA AGENCY, Appellant v. MAXUS ENERGY CORPORATION, Appellee
On Appeal from the 11th District Court Harris County, Texas
Trial Court Case No. 2014-63727
MEMORANDUM OPINION
The trial court confirmed an arbitrator's award of damages and attorney's fees to Maxus Energy Corporation against Browserweb Media Agency. On appeal, Browserweb argues that Maxus did not provide the required service of its motion to confirm the arbitrator's award and, therefore, the trial court erred in confirming the arbitration award. We affirm.
Browserweb argues that it has one "main issue" in the "issues presented" section of its brief implying that there may be other issues that received less focus in the brief. The "issues presented" section of a brief must list all of the issues that are presented on appeal. TEX. R. APP. P. 38.1(f). Even if we were to liberally construe Browserrweb's brief to raise additional issues such as the partiality of the arbitrator or other potential challenges to the arbitration proceedings, we cannot reach those issues because Browserweb did not argue them in the trial court to preserve them for appeal. See TEX. R. APP. P. 33.1(a) ("As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court . . . . "); Karaali v. Petroleum Wholesale, L.P., No. 14-11-00577-CV, 2013 WL 6198349, at *5 (Tex. App.—Houston [14th Dist.] Nov. 26, 2013, no pet.) (mem. op.) (holding that party challenging arbitration did not preserve issues for appellate review because party did not present issues to trial court).
Background
Browserweb is a website development company that entered into a contract to build websites for Maxus, an oil and gas exploration company. The contract permitted Maxus to terminate the agreement without cause upon 30 days' notice and provided that any intellectual property created by Browserweb belonged to Maxus provided that Maxus had paid Browserweb its hourly fee. After Browserweb began developing the website, Maxus terminated the agreement. Browserweb refused to "return to Maxus the intellectual property it had created pursuant to the Agreement, including the domain-name-registration rights for [Maxus's] website." Maxus filed an arbitration demand against Browserweb. Browserweb responded with a counterclaim for breach of contract, alleging that Maxus wrongfully terminated the agreement and seeking future lost revenue.
The arbitrator granted Maxus relief on all of its claims, rejected all of Browserweb's counterclaims, and awarded Maxus damages and attorney's fees and costs. Maxus then filed an "application and motion to confirm arbitration award" in the trial court.
Maxus hired Frankie Dial to serve the application and citation on Browserweb. In his sworn affidavit, Dial said: "The [application and citation] were delivered to: Browserweb Media Agency, by delivering to Mark Burke . . . by Corporate Service." Burke responded by returning the citation to the court, with a hand-written note on the citation that said, "I do not accept this offer to contract and I do not consent to these proceedings, signed Mark Stephen Burke without prejudice."
After a hearing, the trial court entered a judgment confirming the arbitration award except one provision that Maxus elected to abandon. Nothing in the record indicates that Browserweb responded to Maxus's application or raised any objections or arguments either in the pleadings or at the hearing, aside from Burke's refusal to "contract." Nor did Browserweb file any post-judgment motion seeking relief, except for his notice of appeal.
Service of Process
Browserweb argues that the trial court "had no jurisdiction to rule in this case, which is a Constitutional requirement under Texas Law" because "the service of process [was] invalid and of no effect." Browserweb argues that Maxus did not serve its CEO, Burke, personally. Instead, Burke "picked up 'a bundle of papers' [the application and citation] that were left at his residence's front door at some point over the weekend."
A. Standard of review
A court must possess personal jurisdiction over a party to issue a judgment binding that party. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). For a court to have personal jurisdiction over a defendant, "the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant." Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985).
The existence of personal jurisdiction is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Therefore, we review de novo the existence of personal jurisdiction. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
B. Analysis
Texas law requires that, "[u]nless the citation or an order of the court otherwise directs," a person must be served "by any person authorized by Rule 103 by delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto." TEX. R. CIV. P. 106(a)(i). The person who serves the document must file a return, which must include, among other information, "the manner of delivery of service or attempted service." TEX. R. CIV. P. 107(b)(8). "In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules." TEX. R. CIV. P. 124. Even if, like in this case, the defendant admits that he received actual service, such actual service does not substitute for the requirements of service of process. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
Texas also authorizes service by "mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto." TEX. R. CIV. P. 106(a)(2).
Although Browserweb did not file any objections to service in the trial court, "a defendant may raise a defective-service complaint for the first time on appeal," like Browserweb did here. Lee Hoffpauir, Inc. v. Kretz, 431 S.W.3d 776, 780 (Tex. App.—Austin 2014, no pet.); All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 725-26 (Tex. App.—Fort Worth 2003, no pet.).
Browserweb argues that service was defective for two reasons. First, the return did not state the "exact manner of service." As we construe its argument, Browserweb contends that the statement that the motion and citation were "delivered to" Burke does not adequately describe the "manner of delivery." See TEX. R. CIV. P. 107(b)(8). Second, service was "ineffective because of defects in the citation," namely, as we understand its argument, the citation did not support the reason for serving Mark Burke on behalf of Browserweb.
The word "deliver" is sufficient to denote personal service on the defendant. In Wohler v. La Buena Vida in Western Hills, Inc., the return of citation stated that the officer executed service "by delivering to the within named [defendant] a true copy of this Citation" together with a copy of the petition, "having first endorsed on same the date of delivery; by serving [defendant]." 855 S.W.2d 891, 892 (Tex. App.—Fort Worth 1993, no writ). This return satisfied the requirements of the Texas Rules of Civil Procedure because it stated that "delivery" was made to the defendant. Id.
Similarly, in Tavarez v. Smith, the return of citation stated that the defendant was served "a true copy of the documents" by "delivering" them. No. 03-02-00118-CV, 2002 WL 31525282, at *3 (Tex. App.—Austin Nov. 15, 2002, no pet.) (not designated for publication). The defendant argued that the word "delivery" was not specific enough to indicate the "manner of service." Id. The court rejected the defendant's argument, holding that the word "delivery" indicates that the defendant was served in person and concluding "that the return of citation properly reflects the manner of service of process, that is delivery of the documents to . . . the named defendant in the proceeding." Id. at *4.
The affidavit filed as part of the return of service in this case states that the application and citation "were delivered to" Burke. This language is similar to that in Wohler and Tavarez and sufficiently describes the manner of delivery as required by the statute: Dial personally served Burke.
Browserweb cites Curry Motor Freight, Inc. v. Ralston Purina Company as an example of a return of service that was insufficient. 565 S.W.2d 105, 106-07 (Tex. Civ. App.—Amarillo 1978, no writ). That return affidavit, which the court found was "fatally defective because it did not state the manner of serving" the defendant, said that the officer served process "by delivering to the within named [corporation-defendant]: by serving [its] vice-president in person a true copy of this writ . . . . " Id. at 106. The affidavit was fatally defective because it gave "only the legal conclusion of the officer as to the compliance of his acts with the requirements of the statute . . . [with] the manner of service left untold." Id. at 107.
Curry is distinguishable because the affidavit in this case used the word "delivery" rather than the word "serving." The word "serving" is, like noted in Curry, conclusory: it indicates that the officer followed the law without giving a description of how he did so. The word "delivery," however, indicates that the officer personally gave the required papers to the defendant. See Wohler, 855 S.W.2d at 892; Tavarez, 2002 WL 31525282, at *3.
Browserweb also cites three other cases, which all held that service of process was defective because no verification of return of citation was filed. Armendariz v. Barragan, 143 S.W.3d 853, 856 (Tex. App.—El Paso 2004, no pet.); Fazio v. Newman, 113 S.W.3d 747, 749 (Tex. App.—Eastland 2003, pet. denied); Carmona v. Bunzi Distribution, 76 S.W.3d 566, 569 (Tex. App.—Corpus Christi 2002, no pet.). These cases are not relevant because Dial filed an affidavit of return of citation.
Browserweb's second argument is that the citation was "defective," apparently because the citation does not state that Browserweb can be served through Burke.
A citation must be "directed to the defendant." Pete Singh Produce, Inc. v. Macias, 608 S.W.2d 822, 823 (Tex. Civ. App.—El Paso 1980, no writ). The record must show the designated officer or registered agent of the corporation to be served with process. Ponca Wholesale Mercantile Co. v. Alley, 378 S.W.2d 129, 132-33 (Tex. Civ. App.—Amarillo 1964, writ ref'd n.r.e.). "As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on the defendant in the suit, service of process will not be invalidated." Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.—Austin 2004, pet. denied); see G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 817 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (looking to petition and citation to determine whether person was designated officer of corporation); Charles Cohen, Inc. v. Adams, 516 S.W.2d 464, 466-67 (Tex. Civ. App.—Tyler 1974, no writ) (same); Ponca, 378 S.W.2d at 132-33 (same).
The citation in this case does not state that Burke is Browserweb's designated officer or registered agent. It only reads "To: Browserweb Media Agency by serving Mark Burke." Looking at the petition, however, we find ample support that the citation was "directed toward" Browserweb because the petition alleges both Burke's position at Browserweb, that of "CEO," and that Browserweb "can be served with process through" Burke. Thus, in looking at the "record as a whole," Maxus alleged sufficient facts to support service of Browserweb through Burke. Thus, we overrule Browserweb's sole issue.
Browserweb also argues that "[t]he return of service must be on file for at least ten days before a default can be taken." The citation was issued over thirty days before the judgment against Browserweb was entered; thus, the trial court did not err in granting a default judgment against it. --------
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown.