Affirmed and Majority and Dissenting Opinion s filed October 31 , 2019.

In The 

# Fourteenth Court of Appeals

NO. 14

- 18

- 00211

- CV

ULADZISLAU NOVIK , Appellant

V.
LENDR LLC , Appellee
On Appeal from the Co unty Civil C our t at Law No
. 1

Harris Count y, Texas Trial Court Cause No. 1096630

D I S S E N T I N G O P I N I O N The majority reads allegations into Lendr ’ s petition that Lendr did not make. W ith out those added allegations , L endr’s petition fail s to allege facts that, if true, would make Novi k amenabl e to proce ss under the Texas long

- arm statute

. Because the ma j ority concludes otherwise , I respectfully dissent.2 Background This appeal turns on the sufficiency of the allegations in Lendr ’ s petition. In the petition, Lendr identified itself as “ Lendr, LL C f / k / a Viking Funding Group, L LC , ” claimed to be a Texas resident, and listed Georgia addresses for Stone Mountain and Novik

. Lendr further alleged that it “ is a corpora tion that purchases future receipts from companies like Defendant. In so doin g, the pa rties execute a Payment Rights Purchase and Sale Agreement (the ‘ Agreement ’ ). ” 1

In stating its breach of contract claim, Lendr al lege d that “[d]espite Defendant’s promises, d aily debits from Defendant’s bank account have failed or been rejected.” Additiona lly, Lendr state d that it “ha [d] made timely demand on Defendant to pay the amounts due and owing, but Defendant ha [d ] not done s o.” For its c onversion claim, Lendr assert ed that through the agreement, Lendr “took an ownership interest in Defendan t’s futur e sales and receipts” and “[b]y Defendant’s actions, [Lendr] has been denied access to its property.” Lastly, for its claim on the guara nty, Lendr allege d that “Novik ( ‘ G uara ntor ’ ) personally guaranteed all obligations under the Agreement” and is therefore “liable for any and all breaches arising under the Agreement.” In a paragraph of the petition labelled “Venue,” Lendr stat ed:
Venue is proper in this court because this is where the contract was signed, where the Plaintiff resides, and/or where the event s giving rise to Plaintiff ’ s claims occurred. T ex . C iv

. P rac . & R em . C ode §§ 1 5.002(a), 1 5.035(b). This Court may also have jurisdiction and venue over this claim pursuant to T ex . C iv . P rac . & R em . C ode §§ 1 5.092(a) and 15.094 because it arises ou t of a co ntract performed in this county, or the cause of action arose in this county, and Plaintiff is located in this county. Moreo ver, service through the Secretary of

1 Lendr appears to use the term “Defend ant” at times to refer to both Stone Mountain and Novik and at other times to refer just to Stone Mountain. In other places, Lendr re fers t o Novik by his name or by the term “Guarantor.”3

State is app ropriate because Defendant does not have a regular place of business, or a designa ted agent for service of process, in Texas.
All of the cited statutes pertain to venue. See Tex. Civ. Prac. & Rem. Code §§ 15.002, 15.035 , 15.092 , and 15.094

. Lendr ’ s motion for default judgment attached an affidavit and supporting documentation p urporting to show a history of cr edits a nd de bits in Stone Mountain’s account. This “Payment Statement” again list s a Georgia address for Stone Mountain , but it lists a New York address for Lendr. It also provides a website address for Lendr : “ www.vikingfu nding.com

. ” Governing Law
For a default judgme nt to withstand direct attack on appeal, strict compliance with the rules governing service of process must affirmatively appear on the face of the record. See Primate Constr., Inc. v. Silver , 884 S.W.2d 151, 1 52 (Tex. 1994) (per curiam) ; Wilson v. D unn , 8 00 S.W .2d 833, 836 (Tex. 1990). “There are no presumptions in favor of valid issuance, service, and return of citation in the face of a [direct] attack on a default judgment.” Wilson , 800 S.W.2d at 836 (quotin g Uvalde Country Club v. Martin Linen Su pply C o. , 69 0 S.W.2d 884, 885 (Tex. 1985) (per curiam)). If the record on appeal fails to affirmatively show strict compliance with the rules governing service of process , the attempted service is invalid and of no e ffect . Se e Uvalde Country Club , 690 S.W. 2d at 885.
For a default judgment based on service under the Texas long

- arm statute to stand , two requirements must be met: (1) the pleadings must allege facts that, if true, would make the defendant amenable to pro cess by t he use of the long

- arm statute , and ( 2) the re must be proof in the record that the defendant was in fact served in the manner required by the statute. Capitol Brick, Inc. v. Fleming Mfg. Co. , 722 S.W.2d 399, 401 (Tex. 1986) ; Whitney v. L & L Realt y Corp. , 500 S.W.2d4

94, 95

– 96 (Tex. 1973 ) ; Alw azzan v. Alwazzan , No. 01

- 16

- 00589

- CV, 2018 WL 6382061, at *47 (Tex. App.

— Houston [1st Dist.] Dec. 6, 2018 , no pet. ) ; Sec. Pac. Corp. v. Lupo , 808 S.W.2d 126, 127 (Tex. App.

— Houston [14th Dist.] 1991, writ deni ed)

. Unle ss the petition states the grou nds f o r juri sdiction, the defendant is not in a position to make an informed decision as to whether he should appear and defend the suit, make a special appearance to contest jurisdiction, or let the judgment go by d efault an d resist its enforcement in his own s tate o n due process grounds. U.S. Bank Nat’l Ass’n as Tr. for SROF

- 2013

- M4 Remic Tr. I v. TFHSP LLC Series 6481 , 487 S.W.3d 715, 718 (Tex. App.

— Fort Worth 2016 , no pet. )

. C ivil P ractice and R emedies C ode s ectio n 17.044 p rovides that the secret ary of state is an agent for service of process on a nonresident in certain circumstances , including for a nonresident who engages in business in Texas but does not maintain a regular place of business in Texas or a designa ted agent for service of
process in any proce e ding arising out of the business done in Texas to which the nonresident is a party. Tex. Civ. Prac. & Rem. Code § 17.044(b) . In addition to other acts that may constitute doing business, a nonresident does busi ness in T exas if he “contracts by mail or oth e rwise with a Texas resident and either party is to perform the contract in whole or in part in Texas

. ” Id . § 17.042(1)

. Discussion
A lthough Lendr request ed service of process through t he secretary of state in i ts petiti on, it did not identify any particula r long

- arm statutory provision as supporting such service. As noted above, however, Lendr did make certain factual assertions (in the section of its petition labelled “Venue”) that could be inter preted
as at tem pts to al lege fa cts that, if true, would make Novik amenab le to service of
process through sections 17.042 and 17.044

. See Capitol Brick , 722 S.W.2d at 401

. These allegations include that Lendr is a Texas resident and Texas is where the5

contract was signed , w here e vents givi ng rise to the claims occurred , whe re the contract was performed, and where the claims arose. 2 The mere fact that the plaintiff is a Texas resident is insufficient by itself to make a defendant amenable to ser vice under t he long

- arm statute

. See, e.g., Lis itsa v. Flit , 419 S.W.3d 6 72, 679 (Tex. App.

— Houston [14th Dist.] 2013 , pet. denied )

. Likewise, the mere fact that a contract may have been signed in the state is insufficient by itself , particularly since Len dr does not specifically allege that N ovik sign ed the agreement in Texas

. See Tex. Civ. Prac. & Rem. Code § 17.04 2(1); Bryan v. Gordon , 384 S.W.3d 908, 917 (Tex. App.

— Houston [14th Dist.] 2012 , no pet. )

. As set forth above, under section 17.042, a nonresid ent does bus iness in Texas if h e “con t racts

. . . with a Texas resident a nd either party is to perform the contract in whole or in part in Texas .” But Lendr does not allege that Novik entered into a contract with a Texas resident. Lendr identified itself in the petition

as “ Lendr, LLC F

/K/A V iking Fund ing Group, LLC .” Novik asserts that the contract he signed as guarantor was with Viking, which he contends at the time was a New York corporation . I ndeed, the payment statements in the record show a New York street address con nected with Vi king’s web a ddre ss. 3 Although Lendr
states in the petition that it “ purchases future receipts from companies like

2 Novik argues that Lendr ’s phrasing of its allegations using terms such as “or,” “and/or,” and “may” failed to actually assert any specific facts in support of jurisdiction under the lo n g
arm statut e. Howeve r, under a l iberal reading of the petition, I interpret Lendr’s allegations as asserting each listed item as fact. See Tex

. Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004)

.

3 Novik also cites to a copy of the agreement that he f iled i n the ap peal which shows th at Viking was the signatory to the agreement , no t Lendr. H owe ver, we cannot consider this document in deciding the appeal because it was n ot before th e trial court at the time the court made its rulings. See WorldPeace v. C omm’n for Lawy er Discipline , 183 S. W.3d 451, 465 (Tex. App.

— Houston [14th Dist.] 2005 , pet. de nied ) (“[W] e cannot consider documents attached as appendices to briefs and m ust consider a case based solely upon the record filed. ”).6

Defendant [and i] n so doing, the parties execute a Payment Rights Purchase and Sale Agreement ,” Lendr does not contend that it or an y other Te xa s re sident was an original party to the agreement at issue in this case. The petition therefore does not allege that Novik was amenable to process pursuant to section 17.042(1). The majority none theless concludes that Lendr allege d sufficient facts to im ply Le ndr ( p urpo rtedly a Texas res ident ) was a party to the agreement and Novik signed the agreement in Texas. In support, the majority cites the rule that we are to liberally c onstrue pleadings in these types of cases. See , e.g., Tex

. Dep ’ t of Parks & Wil dlife v. Mir

anda , 133 S.W.3d 217, 226 (Tex. 2004) . B ut even a liberal reading should not add allegations not actually made by the plaintiff. As explained above, Lendr simply doe s not assert that it was a party to the agreement or that Novik signed the agre ement in Tex as. Concluding otherwis e is not reading the petition liberally but concocting key allegations out of t hin air. There is most likely a reason Lendr did not make these allegations that would have been very helpful to it : the allegations are not t rue.
A dditio nall y in the petition, Lendr assert s g enerally tha t eve nts giving rise to the claims occurred in Texas , the contract was performed in Texas , and “ the cause of action arose in Texas. ” Lendr does not offer any specifics regarding these conclusory alleg ations , mu ch less explain how they connect Novik to Tex as
. The only alle gation Lendr clearly makes against Novik

— whom Lendr identifies as a Georgia resident

—

is that he defaulted on his guaranty. Neither Lendr nor the majority offers an explanation re gardin g how a Ge orgia r esident’s alleged failure
to make good on a guarantee occurred in Texas or resulted in a c laim ar ising in Tex as. A lthough Lendr’s pleading burden was not high, t hese allegations are simply too general , t o o c o n c l u s o r y to establish tha t Novi k was amen able to process under the long

- arm statute

. See Haferkamp v. Grunstein , No. 11

- 10

- 00194

- CV,7

2012 WL 1632009, at *6 (Tex. App.

— Eastla nd Ma y 10, 2012 , pet. denied ) (mem. op.) (holding jurisdictional allegations were too vague and conclusory t o supp ort jurisd iction under long

- arm statute) ; George v. Deardorff , 360 S.W.3d 683, 688

– 89 (Tex. App.

— Fort Worth 2012 , no pet. ) (holding plaintiff failed to p lead sufficient jurisdictional facts under long

- arm statute where plaintiff failed to show the de fendan ts had any connection to Texas)

. 4
Conclusion
Because Lendr’s petition failed to allege facts that, if true, would make Novik amenable to proce ss under the lon g
- arm statute , the trial court erred in denying Novik’s motion for new trial

. I would theref ore su stain Novi k’s first issue ,
r eve rse and remand the portion of the judgment entering default judgment against Nov ik , and affirm the remainder of the judgment. 5

/s / Frances Bourliot Justice

Panel consis ts of Chief Ju stice Frost and Justi ces Jewell and Bourliot ( Jewell, J., majority )

.

4 Civil Practice and Remed ies Co de s ecti on 17.042 (2) provides that a nonresident does business in Tex as if he “co mmits a tort in whole or in part in this state.” Although Lendr raised a conversion claim in its petition, it appears

— as the majority also concludes

— that this claim was raised only ag ainst Stone Mountain and not Novik. Moreover, the conversion claim is clearly based solely on r ights created und er the contract and therefore sounds in contract and not tort law. See, e.g., Exxon Mobil Corp. v. Kinder Morgan Operating L.P. “A ” , 192 S.W.3d 120, 126

– 27 (Tex. App

. — Houston [14th Dist.] 2006 , no pet. )

.

5 Stone Mo u ntain did not file an appeal in this case , and Novik does not assert that he represents Sto n e Mountain ’ s interests in this case.