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Lucio v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Jun 29, 2017
NUMBER 13-15-00349-CV (Tex. App. Jun. 29, 2017)

Opinion

NUMBER 13-15-00349-CV

06-29-2017

MARCOS LUCIO D/B/A LIGHTHOUSE CREDIT SOLUTIONS, Appellant, v. THE STATE OF TEXAS, Appellee.


On appeal from the 430th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Chief Justice Valdez

Appellant Marcos Lucio d/b/a Lighthouse Credit Solutions ("Lucio" and "Lighthouse," respectively) appeals the trial court's rendition of default judgment against Lucio. Lucio contends that appellee, State of Texas (the State) failed to obtain effective service upon Lucio. Lucio argues the court never obtained in personam jurisdiction whereby it could render a judgment against him. We reverse and remand for further proceedings.

I. BACKGROUND

Marcos Lucio operated Lighthouse Credit Solutions, a credit repair business, in Hidalgo County, Texas. Utilizing internet and radio advertisements, Lighthouse Credit Solutions guaranteed customers that it could improve their credit ratings. Lucio's business, however, was not properly registered as a credit services organization, and Lucio failed to perform according to his business's guarantees. On February 8, 2011, the State filed its original petition and application for temporary and permanent injunction against Lucio for violations of Chapter 393 of the Texas Finance Code, see TEX. FIN. CODE § 393.001—.628 (West, Westlaw through Ch. 34 2017 R. S.), and the Deceptive Trade Practices—Consumer Protection Act, see TEX. BUS. & COM. CODE ANN. § 17.41—.63 (West, Westlaw through Ch. 34 2017 R. S.).

The trial court signed an agreed final judgment and permanent injunction. The permanent injunction prohibited Lucio from (1) engaging in business as a credit services organization unless he holds a credit services organization certificate of registration and bond; (2) advertising, offering for sale, selling, or distributing a credit repair service to the public unless he holds a credit services organization certificate of registration; and (3) misrepresenting—either orally or in writing, directly or by implication—any fact material to a consumer's decision to purchase any credit repair service.

Asserting Lucio violated the injunction, the State filed a motion for contempt and petition for violation of permanent injunction against Lucio on March 11, 2015. Alleging it attempted service five times, the State moved for substitute service of process on April 27, 2015. The trial court granted the motion that same day.

On April 28, 2015, the State amended its motion for contempt and petition for civil penalties for violation of permanent injunction against Lucio. On May 1, 2015, the district court set a show cause hearing for May 27, 2015. The State contends it served Lucio twelve days later with (1) the notice to show cause, (2) the order resetting the show cause hearing, and (3) the State's amended contempt motion through one of Lucio's employees at Lucio's place of business. Lucio failed to appear in court on May 27, 2015, and the State proceeded on its amended contempt motion, seeking civil penalties and injunctive relief. The trial court heard the evidence, and on May 29, 2015, the trial court signed a judgment of contempt and permanent injunction against Lucio.

Lucio was served with a copy of the judgment for contempt on June 9, 2015, and he filed a notice of restricted appeal on July 15, 2015.

II. DISCUSSION

By his first issue, Lucio contends that the trial court did not have in personam jurisdiction over him because the State failed to deliver effective service.

A. STANDARD OF REVIEW

Whether a Texas court has personal jurisdiction is a question of law, which we review de novo. BMC Software Belgium, N.V. v. Marchland, 83 S.W.3d 789, 794 (Tex. 2002).

B. APPLICABLE LAW

To be successful in a restricted appeal, an appellant must prove: (1) he brought the appeal within six months from the signing of the judgment; (2) he was a party to the lawsuit; (3) he did not participate in the trial on the merits; and (4) the error complained of must be apparent on the face of the record. TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985). To determine whether an error on the face of the record exists, the court considers all papers on file in the record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).

For a trial court to have personal jurisdiction over a defendant, "(1) the defendant must be amenable to the jurisdiction of the court; and (2) if the defendant is amenable to the jurisdiction of the court, the plaintiff must invoke that jurisdiction by valid service of process on the defendant." Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). However, "[t]he record affirmatively demonstrates a jurisdictional defect sufficient to void a judgment when it . . . exposes such personal jurisdictional deficiencies as to violate due process." PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012). Rule 21a of the Texas Rules of Civil Procedure states:

Every notice required . . . and every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in . . . [the Texas Rules of Civil Procedure], may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record . . . .
TEX. R. CIV. P. 21(a) (West, Westlaw through Ch. 34 2017 R. S.).

When a party finds that it cannot meet the personal delivery requirements of Rule 21, it may motion for substitute service by first providing an affidavit that meets the requirements of Rule 106(b). Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). The affidavit must dictate (1) "the location of the defendant's usual place of business or usual place of abode or other place whether the defendant can probably be found" and (2) the specific facts showing that traditional service has been attempted "at the location named in such affidavit but has not been successful." TEX. R. CIV. P. 106(b) (West, Westlaw through Ch. 34 2017 R. S.). If an affidavit fails to specify whether the address where service was attempted is the opposing party's usual place of business or abode, the affidavit is considered conclusory. See In re Sloan, 214 S.W.3d 217, 223 (Tex. App.—Eastland 2007, orig. proceeding) (holding that an affidavit failing to specify the address for service was usual place of abode did not adhere to the requirements of Rule 106(b)); Garrells v. Wales Transp., Inc., 706 S.W.2d 757, 759 (Tex. App.—Dallas 1986, writ ref'd n.r.e.) (holding that an unsworn motion specifying an address as the defendant's usual place of abode or business is not of probative value and an affidavit failing to identify the location as the defendant's usual place of business or abode was legally insufficient to support a default judgment). If the affidavit is conclusory or insufficient in meeting the requirements of Rule 106(b), service is considered improper and invalid with no effect, constituting an error on the face of the record. Lytle v. Cunningham, 261 S.W.3d 837, 841 (Tex. App.—Dallas 2008, no pet.). In such cases, the court loses jurisdiction along with the ability to render default jurisdiction against the defendant. Wilson, 800 S.W.2d at 836.

C. ANALYSIS

In view of the foregoing authority, the issue is whether there is an error on the face of the record regarding service upon Lucio that resulted in the loss of the trial court's personal jurisdiction over him.

When the court issued the agreed final judgment and permanent injunction on February 20, 2011, it obtained and retained the ability to continue the cause and enforce its judgment. See TEX. BUS. & COM. CODE ANN. § 17.47(e); see also Jackman, 663 S.W.2d at 524; Travis, 73 S.W.2d at 487. Therefore, the only issue in regards to personal jurisdiction is not whether the court had subject-matter jurisdiction, but whether service was performed according to the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 21(a); R. 106(b).

The State's motion for substitute service of process states that Lucio's "usual place of business is 1111 N. 10th St., Ste. I, McAllen, Texas and usual place of abode is 409 St. George Ave., McAllen, Texas." The motion also provides that the State attempted to serve Lucio using the service of the Hidalgo County Sheriff's Office and a private process server on five different occasions by personal delivery but had not been successful. The State attached an affidavit by the private process server and asked the court to authorize it to serve Lucio by:

(a) leaving a true copy of the notice to show cause and the attached Petition with anyone more than sixteen years of age at 1111 N. 10th St., Ste. I, McAllen, Texas or 409 St. George Ave., McAllen, Texas, or

(b) by attaching a true copy of the notice to show cause and the attached Petition securely to the front entry way at the above address.
The court granted the motion. However, the affidavit attached to the motion did not adhere to the requirements of Rule 106(b). See TEX. R. CIV. P. 106(b) (West, Westlaw through Ch. 34 2017 R. S.). The affidavit by the private process server used by the State is written as follows:
On March 26. 2015 at 04:00 PM
I received a Notice to Show Cause, Contempted Petition, Settlement Agreement, Agreed Final Judgment, Exhibit 1 for service on Marcos Lucio. 1111 N. 10TH SREET, SUITE 1, MCALLEN, HIDALGO COUNTY, TX 78501.
On March 26, 2015 at 04:43PM, at 1111 N. 10TH SREET, SUITE 1, MCALLEN, HIDALGO COUNTY, TX 78501 I talked to "Maribel" at the front desk, who stated that Marcos Lucio is currently out of town and will not return to the office until Monday. She agreed to give him the message to contact me.

On March 27, 2015 at 03:40PM, at 409 ST. GEORGE AVE, MCALLEN, HIDALGO COUNTY, TX 78503 There was no answer at the front door. A written notice (door hanger) was placed on the door.

On March 30, 2015 at 09:45AM, at 1111 N. 10TH SREET, SUITE 1, MCALLEN, HIDALGO COUNTY, TX 78501 I again talked to "Maribel", who stated that Marcos Lucio is not present and is expected to be at the office at about 1:00 p.m.

On March 30, 2015 at 0 1:25PM, at 1111 N. 10TH SREET, SUITE 1, MCALLEN, HIDALGO COUNTY, TX 78501 I returned to the office of Marcos Lucio and was advised by Maribel that Lucio has not showed up and does not know when he will return to the office. A grey Land Rover vehicle with Texas plates BSR-4926 was observed parked behind the office. The vehicle is registered to Marc Lucio.

On March 31, 2015 at 08:50AM, at 409 ST. GEORGE AVE, MCALLEN, HIDALGO COUNTY, TX 78503 A middle aged lady who identified herself as "Olga" an employee of Lucio, answered the front door. She claims that Lucio is not at home and does not know when he will return. I handed her my business card and asked her to have him call me. She agreed.
The affidavit fails to clarify whether 1111 N. 10th Street, Suite 1, McAllen, Hidalgo County, TX 78501 or 409 St. George Ave, McAllen, Hidalgo County, TX 78503 are Lucio's usual places of business or abode. Even though the State's motion for substitute service states one address is Lucio's usual place of business and the other his usual place of abode, the unsworn motion is not of probative value. See Garrells, 706 S.W.2d at 759. Because the affidavit fails to specify the significance of the two addresses, the affidavit is merely conclusory and therefore cannot authorize substitute service. See Wilson, 800 S.W.2d at 836; see also Sloan, 214 S.W.3d at 223. Improper service is apparent on the face of this record. See Lytle, 261 S.W.3d at 841. Accordingly, the trial court did not have personal jurisdiction to issue the later judgment of contempt against Lucio.

III. CONCLUSION

We reverse the trial court's judgment and remand for further proceedings.

/s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice Delivered and filed the 29th day of June, 2017.


Summaries of

Lucio v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Jun 29, 2017
NUMBER 13-15-00349-CV (Tex. App. Jun. 29, 2017)
Case details for

Lucio v. State

Case Details

Full title:MARCOS LUCIO D/B/A LIGHTHOUSE CREDIT SOLUTIONS, Appellant, v. THE STATE OF…

Court:COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Jun 29, 2017

Citations

NUMBER 13-15-00349-CV (Tex. App. Jun. 29, 2017)