Opinion
NO. 02-17-00402-CV
04-19-2018
SCOTT'S BIG TRUCK SALES APPELLANT v. ALEX GARCIA APPELLEE
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 2017-001501-3 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Scott's Big Truck Sales (Scott's) brought this restricted appeal from a default judgment rendered against it in favor of Appellee Alex Garcia. See Tex. R. App. P. 30. To prevail on this restricted appeal, Scott's must show that (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 post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Scott's filed a brief arguing that it has met all four of these requirements.
Instead of filing a brief, Garcia filed an "Agreed Motion to Reverse the Trial Court's Judgment and Remand for a New Trial." The motion, signed by both parties, states that the parties agree that Scott's has established it is entitled to prevail on this restricted appeal and requests that we reverse the trial court's default judgment and remand this case for a new trial. We agree with the parties that Scott's is entitled to relief on its restricted appeal.
We recognize that rule of appellate procedure 42.1(2)(B) authorizes the courts of appeal, upon agreement of the parties or their attorneys, to "set aside the trial court's judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with" the parties' agreement. Tex. R. App. P. 42.1(2)(B). Garcia's agreed motion, however, does not request a remand for "rendition of judgment" in accordance with an agreement between the parties but instead seeks a remand for a new trial.
The record shows that Scott's filed its notice of restricted appeal within six months after the trial court signed the default judgment. It shows that Scott's was a party to the underlying lawsuit. And it shows that Scott's neither participated in the hearing that resulted in the default judgment nor filed any post-judgment motions or requests for findings of fact and conclusions of law. What remains is whether error is apparent on the face of the record. See Alexander, 134 S.W.3d at 848.
Failure of the record to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation constitutes error on the face of the record. See Mandel v. Lewisville Indep. Sch. Dist., 445 S.W.3d 469, 474 (Tex. App.—Fort Worth 2014, pet. denied). In its first issue, Scott's contends the record does not affirmatively show that it was properly served with citation. We agree.
According to Garcia's original petition, Scott's is a domestic business entity. Thus, it could only be served through an authorized agent. See Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226, 230 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("A corporation is not a person capable of accepting process on its own behalf, and it therefore must be served through an agent."); see also Tex. Bus. Orgs. Code Ann. §§ 5.201(a)(1) (providing that each domestic business entity shall designate and continuously maintain a registered agent), 5.201(b)(1) (providing that a registered agent is an agent who is authorized to receive service for the entity), 5.255(2) (providing that for the purpose of service of process, each general partner of a domestic limited partnership and each partner of a domestic general partnership is an agent of that partnership), 5.255(3) (providing that for the purpose of service of process, each manager of a manager-managed domestic limited liability company and each member of a member-managed domestic limited liability company is an agent of that limited liability company) (West 2012). But Garcia's petition did not identify any individual authorized to receive service of process on Scott's behalf. Rather, Garcia's petition merely stated that Scott's could be served at "5125 Sun Valley Drive, Fort Worth, Texas 76119." The citation was issued to Scott's at that address, though it, too, failed to identify any individual authorized to receive service on Scott's behalf.
The return of service recites that service was executed on Scott's by delivering the citation and original petition to "Scott's Big Truck Sales (Mr. Royce) 5125 Sun Valley Dr. Ft Worth Tx." The return does not affirmatively show that Mr. Royce was an agent authorized to receive service for Scott's and, thus, does not affirmatively show service of citation in strict compliance with the rules of civil procedure governing issuance, service, and return of citation. See Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 793 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that where defendant was Barker CATV Construction, Inc., return stating that service was executed on "James Barker" was defective because it failed to establish that the person served was in fact the defendant's agent for service of process and did not establish that the defendant was served); see also Master Capital Sols. Corp. v. Araujo, 456 S.W.3d 636, 640 (Tex. App.—El Paso 2015, no pet.) (return defective where service on a corporation was made by mail and return receipt was signed by "Amber Johnson" because the record did not affirmatively show Amber Johnson was authorized to receive service on the corporation's behalf). Scott's has therefore shown an error that is apparent from the face of the record. See Mandel, 445 S.W.3d at 474. We consequently sustain its first issue.
Because we agree with the parties that Scott's is entitled to relief on its restricted appeal, we reverse the trial court's judgment and remand this case for further proceedings. See Tex. R. App. P. 43.2(d). Because our resolution of Scott's first issue is dispositive of this appeal, we do not address its other issues. See Tex. R. App. P. 47.1. And given our disposition, we deny Garcia's "Agreed Motion to Reverse the Trial Court's Judgment and Remand for a New Trial" as moot. See Wilson v. Am. Builders & Contractors Supply Co., No. 01-12-00537-CV, 2012 WL 3234059, at *1 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, no pet.) (mem. op.).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: GABRIEL, KERR, and PITTMAN, JJ. DELIVERED: April 19, 2018