Opinion
No. 01-94-01234-CV
Judgment affirmed and Opinion filed October 24, 1996.
On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 90-13901.
OPINION
This is an appeal from summary judgments granted in a bill of review proceeding. Appellant Global Services, Inc. (Global) sought to set aside a default judgment obtained by appellee GW Leasing Co. (GW). In its petition, Global also asserted several tort claims against GW and appellees Jack Wright and Bert Clardy. The trial court granted appellees' motions for summary judgment and denied Global's motion for summary judgment. We affirm.
Factual and Procedural Background
In 1972, M. Lee Gardner and Jack Wright incorporated Global, a business that sells, leases and maintains office equipment. Gardner and Wright also formed GW, a general partnership involved in commercial leasing. Gardner was Wright's step-father.
Gardner was Global's original registered agent. In 1981, the corporation sent a "Statement of Change of Registered Agent and Registered Office" to the Secretary of State's office. In this statement, Global asked the Secretary of State to change its registered agent from Gardner to Wright, and to change its registered office to 7476 Harwin Drive, Houston, Texas. The statement also provided that the address of both the registered office and the registered agent, Wright, were the same — 7476 Harwin. As will be discussed more thoroughly later in this opinion, the Secretary of State's office changed its records to reflect the new address, but apparently never changed its records to reflect that Wright was now the corporation's registered agent.
In 1983, Global moved to offices at 4545 Groveway. Although it is not entirely clear from the record, it appears that Global vacated the Harwin location entirely when it moved to Groveway. Global leased the Groveway office space from GW Gardner and Wright both signed the lease on behalf of GW and Wright signed for Global. The term of the lease was for 60 months, and it expired August 31, 1988.
Wright resigned from Global in 1985. He remained a partner in GW, however. Neither he nor Global notified the Secretary of State's office that he had resigned from Global and that he was no longer the corporation's registered agent.
On June 20, 1988, Gardner died.
In December 1988, four months after its lease expired, Global moved from its office on Groveway to 2902 West 12th Street. In January 1989, GW filed suit (the underlying lawsuit) against Global for breach of the lease. Appellee Bert Clardy, GW's attorney, filed the lawsuit on GW's behalf. Both Wright and Clardy knew that Gardner was dead and that Global had moved from the Harwin address several years earlier. Both Wright and Clardy also knew that Global's office was now at 2902 West 12th — Wright had sent a number of letters to Global at this address and had visited the office. Nonetheless, Clardy requested service on the late Mr. Gardner, as Global's agent, at 7476 Harwin. The citation was returned unserved. It bore the following notation by the constable:
GW sought additional rent it claimed Global owed pursuant to the holdover provisions of the lease and compensation for alleged damage to the leased premises.
B/A[;] moved out 2 yrs ago[.] No forwarding address[.] Return to court for sec. of st. service per attorney[.]
On June 6, 1989, Clardy, on behalf of GW, filed an amended petition stating that Gardner had died, that, according to the returned citation, Global did not maintain a place of business at its registered address, and that the Secretary of State was the agent for Global for service of citation. The Secretary of State was served with citation and GW's first amended petition on June 9, 1989. The Secretary of State's office forwarded a copy of the citation and petition to Global in care of Gardner at 7476 Harwin. The process was returned to the Secretary of State's office with the notation "FORWARDING ORDER EXPIRED."
GW's original petition specifically provides that Global "may be served by serving the registered agent for service, M. Lee Gardner, at 7476 Harwin Dr. . . ." The citation also reflects that Gardner is Global's agent. Neither document reflects that 7476 Harwin is Global's registered office. However, the amended petition provides that the Secretary of State's records showed that Gardner 3Hwas Global's registered agent and its registered office was at 7476 Harwin.
On August 24, 1989, the trial court signed a default judgment against Global for $196,571. On the day the judgment was signed, Clardy filed a certificate of last known address stating that Global's last known address was 2902 W. 12th Street. Although the district clerk's docket sheet reflects that a postcard notice of the default judgment was sent to Global on August 28, 1989, Global denies receiving notice of the judgment.
On February 28, 1990, GW attempted to collect the judgment by garnishing Global's bank account. Global asserts that it first learned about the default judgment when the bank notified it of the garnishment action. The trial court granted Global's motion to dissolve the writ of garnishment. Global then filed its petition for bill of review. Global sought to have the default judgment set aside, alleging that it was never served with process and had never received notice of the judgment, it had several meritorious defenses, and it was prevented from presenting its meritorious defenses through the fraud and wrongful conduct of GW, Wright, and Clardy, unmixed with any fault or negligence of its own. Global additionally alleged the following causes of action against GW, Wright, and Clardy: fraud, abuse of process, conspiracy to defraud, indemnity, and wrongful garnishment. All parties filed motions for summary judgment. On October 11, 1994, the trial court granted summary judgment in favor of GW, Wright, and Clardy.
Global also sued Martha Gardner, alleging that she breached a fiduciary duty to Global. (Martha Gardner was M. Lee Gardner's widow, Jack Wright's mother, and the co-executrix of Gardner's estate.) Martha Gardner counterclaimed against Global. On June 28, 1994, Global and Martha Gardner nonsuited their claims against one another.
In its first point of error, Global asserts the trial court erred in granting appellees' motions for summary judgment and denying his motion for summary judgment on the issue of the bill of review. In its second point of error, Global asserts that the trial court erred in granting summary judgment for appellees and against it with respect to its tort claims.
Summary Judgment Standard of Review
Summary judgment is proper if the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Wornick v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). In reviewing a summary judgment, we must accept all evidence favorable to the nonmovant as true. Id. We indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Id. A defendant who conclusively negates one of the essential elements of the plaintiff's cause of action is entitled to summary judgment. Id.
When both parties move for summary judgment, this Court may review both the denial as well as the granting of summary judgment. Each party has the burden of clearly proving its right to judgment as a matter of law, and neither may prevail simply because the other failed to discharge its burden. James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex.App.-Houston [1st Dist.] 1987, writ denied). We must resolve all doubts and indulge all reasonable inferences in favor of the losing party. El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987).
When, as here, the trial court's order granting summary judgment does not specify the ground or grounds upon which it relied for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
Bill of Review
A bill of review is an equitable proceeding by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Ortega v. First RepublicBank Fort Worth, 792 S.W.2d 452, 453 (Tex. 1990); Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex.App.-Houston [1st Dist.] 1992, writ denied). It is a new lawsuit filed in the same court that rendered the default judgment. McEwen v. Harrison, 345 S.W.2d 706, 709-10 (Tex. 1961).
A party seeking a bill of review must ordinarily plead and prove: (1) a meritorious claim or defense to the cause of action that supports the judgment; (2) that it was prevented from making by fraud, accident or the wrongful act of the opposing party; (3) unmixed with any fault or negligence of its own. Ortega, 792 S.W.2d at 453; Hill v. Steinberger, 827 S.W.2d 58, 61 (Tex.App.-Houston [1st Dist.] 1992, no writ). A bill of review petitioner who did not receive proper service or proper notice does not need to prove a meritorious defense. Peralta v. Heights Med. Ctr., 485 U.S. 80, 87-88, 108 S.Ct. 896, 900 (1988); LBL Oil Co. v. International Power Serv., 777 S.W.2d 390, 390-91 (Tex. 1989); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); Commission of Contracts of the Gen. Executive Comm. of the Petroleum Workers Union v. Arriba, Ltd, 882 S.W.2d 576, 581 (Tex.App.-Houston [1st Dist.] 1994, no writ). However, the petitioner must demonstrate that it was free from fault or negligence in letting the judgment be taken. Winrock Houston Assoc. Ltd. Partnership v. Bergstrom, 879 S.W.2d 144, 149 (Tex.App.-Houston [14th Dist.] 1994, no writ); Axelrod R D, Inc. v. Ivy, 839 S.W.2d 126, 128 (Tex.App.-Austin 1992, writ denied).
The Business Corporation Act
The Texas Business Corporation Act requires that all corporations shall "have and continuously maintain" a registered office and a registered agent. TEX. BUS. CORP. ACT ANN. art. 2.09 (Vernon 1980). Article 2.10 of the Act provides the means by which a corporation may change its registered office or registered agent, and the means by which a registered agent may resign:
Art. 2.10. Change of Registered Office or Registered Agent
A. A corporation may change its registered office or change its registered agent, or both, upon filing in the office of the Secretary of State a statement setting forth:
(1) The name of the corporation.
(2) The post-office address of its then registered office.
(3) If the post-office address of its registered address is to be changed, the post-office address to which the registered office is changed.
(4) The name of its then registered agent.
(5) If the registered agent is to be changed, the name of its successor registered agent.
. . . .
B. The statement required by this article shall be executed on behalf of the corporation by an officer. The original and a copy of the statement shall be delivered to the Secretary of State. If the Secretary of State finds that such statement conforms to the provisions of this Act, he shall . . .:
(1) Endorse on the original and the copy the word "Filed," and the month, day, and year of the filing thereof.
(2) File the original in his office.
(3) Return the copy to the corporation or its representative.
C. Upon such filing, the change of address of the registered office, or the appointment of a new registered agent, or both, as the case may be, shall become effective.
D. Any registered agent of a corporation may resign
(1) by giving written notice to the corporation at its last known address
(2) and by giving written notice, in duplicate . . . to the Secretary of State within ten days after mailing or delivery of said notice to the corporation. Such notice shall include the last known address of the corporation and shall include the statement that written notice of resignation has been given to the corporation and the date thereof. Upon compliance with the requirements as to written notice, the appointment of such agent shall terminate upon the expiration of thirty (30) days after receipt of such notice by the Secretary of State.
If the Secretary of State finds that such written notice conforms to the provisions of this Act, he shall:
(1) Endorse on the original and copy the word "filed" and the month, day, and year of the filing thereof.
(2) File the original in his office.
(3) Return the copy to such resigning registered agent.
(4) Notify the corporation of the resignation of the registered agent.
TEX. BUS. CORP. ACT ANN. art. 2.10 (Vernon 1980 Supp. 1996). Article 2.10 is followed by a form promulgated by the Secretary of State called, "Statement of Change of Registered Office or Registered Agent or Both by a Profit Corporation." TEX. BUS. CORP. ACT ANN. art. 2.10 form (Vernon Supp. 1996). This form is for use by the corporation in reporting a change of its registered office or registered agent to the Secretary of State. The Act does not contain a form for a registered agent to use when resigning as registered agent.
The Act also provides the rules for service of process on a corporation:
A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of the corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.
B. Whenever a corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand shall be made by delivering to and leaving with him . . . duplicate copies of such process, notice, or demand. . . .
TEX. BUS. CORP. ACT ANN. art. 2.11 (Vernon 1980).
The Secretary of State's Records
The following facts are uncontroverted. On June 29, 1981, Global filed a notice with the Secretary of State's office, changing its registered agent from Gardner to Wright, and changing its registered office to 7476 Harwin. This notice bears the stamped notation "FILED in the Office of the Secretary of State of Texas JUN [sic] 29 1981." Global filed nothing else with the Secretary of State's office until April 5, 1990, when the Secretary of State's office filed Global's request to change its registered agent to Steve Eifert. Additionally, Wright never notified the Secretary of State's office that he resigned from Global in 1985.
Thus, when GW filed the underlying lawsuit in 1989, the Secretary of State's records should have reflected the information in Global's June 1981 filing — that Wright was Global's registered agent and that 7476 Harwin was its registered office. It is clear, however, that although the Secretary of State's records reflected that 7476 Harwin was Global's registered office, the records indicated that Gardner was Global's registered agent. The summary judgment evidence includes certified copies of two pages of the microfiche of the Secretary of State's records for August 12, 1988, and March 31, 1989. Both show that Global's registered agent was M. Lee Gardner and its registered office was 7476 Harwin. The summary judgment evidence also includes a copy of a form letter sent from the Secretary of State's office to Global's attorneys. The form letter is dated March 30, 1990, and is in response to Global's request to change its registered agent to Steve Eifert. The letter provides in part:
The following corrections are necessary for approval and filing of the documents submitted on behalf of [Global]. . . .
. . . .
4. ____ Please state the name of the registered agent as presently shown on the records of this office. The registered agent as shown on our records is: M. LEE GARDNER.
In response to this letter, Global's attorney sent a letter to the Secretary of State's office that provided in part:
Please note that the last filing appointed Jack Wright as the registered agent of the Company and the current filing recites that fact. I believe your records are in error.
Clardy's legal assistant stated in his affidavit that before the underlying lawsuit was filed, he called the Secretary of State's office and was told that Gardner was Global's registered agent and that 7476 Harwin was its registered office. Clardy testified in his deposition that he called the Secretary of State's office to verify this information. He double-checked because he knew Global was no longer at the Harwin address, and because Wright had told him that he had at one time been Global's registered agent.
Clardy and Wright knew Gardner — Wright's step-father — was dead and that Global had moved from the Harwin location years before they filed the lawsuit. They requested service upon Gardner, the person listed in the Secretary of State's records as Global's registered agent, at the address listed in the Secretary of State's records as Global's registered office. These records did not accurately reflect Global's last filing. Had the Secretary of State's records reflected the June 1981 filing, they would have indicated that Wright was Global's registered agent.
Global's Negligence
In its first point of error, Global asserts the trial court erred in granting appellees' motions for summary judgment and in denying its motion for summary judgment on the bill of review issue. The appellees moved for summary judgment on the basis that because Global was negligent, it was not entitled to a bill of review. Specifically, the appellees alleged that Global was negligent because it did not notify the Secretary of State of the change to its registered agent and registered office. In connection with this argument, the appellees noted that in the years between Wright's resignation and Gardner's death, Global had been sued three times by other parties. The plaintiffs in these unrelated lawsuits all initially sought service on Global at the Harwin address; in each case, either the original petition or return indicated that Gardner was the registered agent. In each case, the constable's return indicated that the Harwin address was vacant, and contained a handwritten address at which Gardner could be located. Also in each case, Gardner was ultimately served at either the Groveway address or at his home. The appellees asserted that by virtue of these lawsuits, Global had express notice of the incorrect information contained in the Secretary of State's records.
Global argues that it could not be negligent because it had no duty to file an answer. This argument is premised on its assertion that Jack Wright was its registered agent. Global contends that because GW did not attempt to serve Wright or any other person who could, pursuant to the Business Corporation Act, be served, Global was never served and the default judgment is void.
We first address Global's contention that Jack Wright was its registered agent when GW filed the underlying lawsuit. Global bases this assertion on the fact that Wright never notified the Secretary of State that he was resigning as Global's registered agent. Global relies on article 2.10(D) of the Act, which provides that a registered agent of a corporation may resign by giving written notice to the corporation and to the Secretary of State. Global asserts that Wright's resignation from Global did not "effectuate a termination of his appointment as registered agent" and that because Wright did not notify the Secretary of State in writing that he was resigning as Global's registered agent, he was still Global's registered agent for service of process at the time GW's lawsuit was filed. Put another way, Global asserts that the Act imposes an affirmative duty on a resigning registered agent to notify the Secretary of State of the resignation, and that the resignation is not effective unless the registered agent notifies the Secretary of State.
The summary judgment evidence includes a copy of the letter Wright sent to Global, notifying the corporation of his resignation. The letter provides in part:
Please be advised that as of April 19, 1985, I resign and relinquish all positions I currently hold or may have held with Global Services, Inc. . . ., including, but not limited to, any position as an officer of director of Global.
Article 2.10(D) gives registered agents the option of resigning their agency, and provides a procedure for doing so; the registered agent may resign by giving written notice to the corporation and the Secretary of State. It is uncontroverted that although Wright notified Global of his resignation from all positions he held with Global, he did not comply with the statutory requirement that he notify the Secretary of State.
It is equally clear that Global did not comply the duties imposed upon it by the Act. The Act requires a corporation to maintain a registered agent and office and to notify the Secretary of State of any change to either. RWL Constr., Inc. v. Erickson, 877 S.W.2d 449, 451 (Tex.App.-Houston [1st Dist.] 1994, no writ); Tankard-Smith, Inc. v. Thursby, 663 S.W.2d 473, 475 (Tex.App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.); TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 708 (Tex.App.-Fort Worth 1982, no writ); see also TEX. BUS. CORP. ACT ANN. arts. 2.09-.10 (Vernon 1980 Supp. 1996). Thus, Global had an affirmative duty to notify the Secretary of State that Wright resigned and that the corporation had moved. However, although Wright resigned in 1985 and the corporation moved from 7476 Harwin many years before the underlying lawsuit was filed in 1989, Global did not notify the Secretary of State of any change to its registered agent or registered office until 1990. This was the first time since 1981 that Global had notified the Secretary of State of any changes.
The Act permits service upon the Secretary of State whenever the corporation's registered agent cannot with reasonable diligence be found at the registered office. TEX. BUS. CORP. ACT ANN. art. 2.11 (Vernon 1980). Clardy contacted the Secretary of State to ascertain Global's registered agent and registered office. He was informed that Gardner was the registered agent and that 7476 Harwin was the registered office. He attempted to serve Gardner at the registered office address provided by the Secretary of State. When the citation was returned unserved, Clardy served the Secretary of State.
We reject Global's argument that it was not served and that it was therefore denied due process of law. Clardy complied with the statutory method of service authorized by article 2.11. Global was the victim of its own negligence in not notifying the Secretary of State of any change to its registered agent or registered office. We hold that "the failure of the method of service was the result of the corporation's own failure to comply with the statutory requirements which are designed to assure it of notice of pending suits." Tankard-Smith, 663 S.W.2d at 476.
The primary reason why the Act places a duty upon a corporation to maintain a registered agent and registered office is so that aggrieved parties can serve the corporation in a lawsuit. Houston's Wild West, Inc. v. Salinas, 690 S.W.2d 30, 32 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). Had the opposing party in the underlying lawsuit been a stranger to Global, we would have had no difficulty in concluding that because Global did not maintain a registered agent and could not with reasonable diligence be found at its registered office, substituted service on the Secretary of State was proper. We must reach the same conclusion even though Wright and Clardy knew Gardner was dead, that Global had moved from the Harwin location years before the underlying lawsuit was filed, and that Global maintained offices at 2902 W. 12th.
We note that Harold-Elliott Co., Inc. v. K.P./Miller Realty Growth Fund I, 853 S.W.2d 752 (Tex.App.-Houston [1st Dist.] 1993, no writ), is a case with similar (though less egregious) facts. The plaintiff initially attempted to serve Harold-Elliott by serving the registered agent at the registered address contained in the Secretary of State's records. The citation was returned unserved, and contained a notation that Harold-Elliott had moved two years earlier; the new address was noted on the citation. The plaintiff then amended its petition to serve the Secretary of State. The Secretary of State forwarded the petition to the incorrect address; the citation was returned as not forwardable. Id. at 753. The plaintiff in Harold-Elliott knew the correct address; not only was the correct, current address written on the unserved citation, the plaintiff had also corresponded with Harold-Elliott's president at that address several times before the lawsuit was filed. This Court reluctantly overruled the point of error in which Harold-Elliott asserted the petition did not reflect that the plaintiff attempted service on the registered agent with reasonable diligence, noting:
While we agree that the appellee complied with the literal interpretation of the statute, we cannot conceive that the legislature intended this result. The consequence of the appellee's actions is that a party to a lawsuit has the complete and absolute right to ignore information it has concerning the proper address of the office of the registered agent and then deny that party its day in court by obtaining a no-notice default judgment. If the legislature intended such a result, without redress, then the statute needs to be amended to prevent such abuses by litigants.
Id. at 755. Here, the appellees — like the plaintiff in Harold-Elliott — complied with the statute. However unfair the result, they were not required to do more.
We find that the appellees established as a matter of law that Global's own negligence in not complying with the duties imposed upon it by the Act prevented it from raising a defense to GW's cause of action.
Global complains that appellees negotiated for a resolution of the disputes between the parties without telling Global about the pending lawsuit. However, neither Wright nor Clardy had a duty to do more than serve Global in the manner provided by statute.
In Central Airlines, Inc. v. Kahle, 419 S.W.2d 873 (Tex.Civ.App.-Fort Worth 1967, writ ref'd n.r.e.), the airline sought a bill of review to set aside the default judgment in favor of Kahle. The airline was properly served but its attorney misread the date on the citation and filed an answer after the default judgment was signed. Neither Kahle nor his attorney advised the airline of the default judgment until over two months after the judgment became final. Id. at 874-75. The court of appeals noted:
When its lawful agent was served with citation [the airline] was legally "on notice" in all material respects from that time forward. That is the very purpose for having a system for the serving of citations. And should a plaintiff in a discussion with the defendant, upon whom he has caused citation to be served in the suit he has filed, discover that the defendant has overlooked or forgotten about the fact that he is exposed to a default judgment, there is no duty cast upon the plaintiff to point out the true state of affairs to him. The parties are dealing "at arms length" and there is no fiduciary relationship of any character or degree. Such a plaintiff will not have his default judgment taken away in the equitable proceeding for bill of review unless he prevents the defendant from making his defense. Conduct on his part that merely permits a defendant to fail to defend is not sufficient.
Id. at 876. Here, the appellees properly served Global when they served the Secretary of State in accordance with the Business Corporation Act. Global had constructive notice of the underlying lawsuit. Appellees did nothing to prevent Global from answering and defending the lawsuit.
The trial court did not err in granting summary judgment in favor of the appellees. We overrule Global's first point of error.
Global's Tort Claims
In its second point of error, Global asserts that the trial court erred in granting summary judgment on its tort claims against the appellees. Global asserts that the trial court's dismissal of those claims was dependant on its denial of the bill of review, and the summary judgments as to both the bill of review and the tort claims must therefore be reversed. Because we have held that the trial court did not err in denying Global's bill of review, we reject this argument.
Alternatively, Global argues that the tort claims were not derivative of its bill of review action, as appellees argued in their motions for summary judgment, but are causes of action that could have been brought as an independent suit.
A. Fraud, abuse of process, conspiracy to defraud, and indemnity
These causes of action were based primarily on Global's assertion that the appellees "intentionally served a person known to be dead at an address known to be outdated for five years," and on its allegation that Jack Wright was Global's registered agent. Global further asserted that the appellees attempted to serve Gardner at the Harwin address in an effort to conceal the lawsuit from Global, and that they "continued to communicate orally and in correspondence with Global as if the parties were resolving any dispute amongst themselves."
With respect to its cause of action for fraud, Global alleged that it had "paid monies to G W which it would not have paid if it had known the truth." Global's abuse of process claim is based on the appellees' "illegal, improper and perverted use of process" in serving Gardner when they knew that Wright was Global's registered agent. With respect to its conspiracy to defraud claim, Global alleged that the appellees "entered into an agreement amongst themselves the purpose of which was to conceal the existence of the [underlying] lawsuit while simultaneously seeking to obtain monetary benefit from Global." Global alleged that in furtherance of the conspiracy, the appellees made misrepresentations that the issues between the parties had been resolved.
In their motions for summary judgment, GW, Wright, and Clardy asserted that all of Global's causes of action were predicated on the facts relating to its bill of review, and that if the underlying judgment was valid and enforceable and not subject to collateral attack, Global's other causes of action could not be sustained. Clardy also argued that he had no duty to Global to inform it of the lawsuit.
In its brief, Global asserts that Wright was Global's registered agent, and that by intentionally not advising Global of the underlying lawsuit, he violated his fiduciary duties and engaged in fraud. Global also asserts that Clardy participated in a conspiracy to defraud by not serving Global in order to obtain a default judgment without notice. As we have noted, however, Wright was not Global's registered agent when the underlying lawsuit was filed, and Clardy strictly complied with the provisions of the Business Corporation Act relating to service of process.
Global also asserts that while the appellees were proceeding with the underlying lawsuit, they were representing to Global that their disputes could be resolved amicably, and actually received money from Global that they also sought in the underlying lawsuit.
Even assuming that Global's tort claims constitute independent claims that could have been brought as an independent suit, the trial court did not err in granting summary judgment as to these claims. We agree with appellees that Global's causes of action for fraud, abuse of process, conspiracy to defraud and indemnity are based on the same facts upon which it based its petition for bill of review. We have held that the appellees established as a matter of law that they strictly complied with the statutory requirements for service of process, that Global's failure to comply with the requirements of the Business Corporation Act prevented it from receiving notice of the underlying lawsuit, and that appellees had no duty to inform Global of the pendency of the underlying lawsuit in any manner other than that prescribed by the Business Corporation Act. The trial court did not err in granting summary judgment in favor of appellees on Global's causes of action for fraud, abuse of process, conspiracy to defraud, and indemnity.
B. Wrongful garnishment
With respect to the wrongful garnishment claim, Global asserts on appeal that a claim for wrongful garnishment is not dependant upon the bill of review but can exist without having to set aside the judgment. Global has provided no authority and has offered no additional argument to this contention. We find that Global has waived any argument on appeal. TEX. R. APP. P. 74(f).