### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00746- CV

Com al & Co., LLC, Appellan t

v. Michelle M ays, Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F CO MAL CO UNTY NO. 201 7CVA0011 , H ONO RAB LE RANDAL C. GRAY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
This is a restricted appeal from a default j u d gm en t rendered by the county court at law of Comal County in a brea ch of contr ac t an d d ec ep tive trade prac tices case involving a roofrepa ir dispute. Appellant is Comal & Co., L L C. Appellee is Michelle May s. This Court will vacate the judg ment. After Comal made no appea ranc e, the trial court rende red a defa ult judgment for May s in the total sum of $22,713.56. Comal arg ues, in eff

ect, that beca

use i t wa s n o t p ro p erly

serve d, the def

ault judgme nt is void. W e ag ree . May s asser

ts that betwee n J anuar

y and May 2017 she made sever al attempts to serve Comal persona lly and also to serve its reg istered ag ent by cer tified mail. On April 17, 2017, May s’s proce ss-serve r filed an aff idavit decla

ring that he persona lly delivere d the May s citation and petition by cer tified mail to Comal throug h its reg istered ag ent, Rory C l o s s o n , at 197 Aca cia Parkwa y ,Sprin g Br anch, Texas 78070. Howeve r, Comal’s reg istered office is not 197 Aca cia Parkwa y ; instead, the c orre ct addr ess is 1597 Aca cia Par kway

. I n May 2017, May s sent a copy of the citation and petition in her suit to the secr etar y
o f state reque sting service on Comal. Section 5.251(1)( B) of the Texas Business Org an i z at i o n s Code provides that the se cre tary of state is an a g ent of a

n entity for purposes of service of proce ss when the reg istered a g ent of the e ntity cannot with re asonable diligenc e be f ound at the reg istered office of the e ntity

.

The rec ord contains a cer tificate from the secr etar

y of state’s office rec iting that it

rec eived a copy of the citation and May s’s petition on May 10, 2017, and that such wa s forwa rded by cer tified mail to Comal’s reg istered ag ent, Rory J
. Closson, at 1597 Aca cia Parkwa y , Spr ing Br anch, T exas 78070. The proc ess was r eturne d to the secr etar y of state on J une 9, 2017, bear ing the notation “Return to Sender , Unclaimed, U nable to F orwa rd.” T here afte r, May s filed with the trial court a motion for substitut ed service

. Af t er h ea ri n g, the trial court found that service of citation on Comal was acc omplished by serving the

secr etar y of state. When a defa

ult judgme nt is direc tly attacke d by a restric ted appea l, the rec ord must ref lect strict compliance with the rules rela ting to the issuance, service, an d re turn of citation. P r im a te Co n s tr
. , I

n c . v . S il v e r , 8 8 4 S. W. 2 d 1 5 1 , 1 5 2 ( T e x. 1 9 9 4 ) ; M c Ka n n a v . E

d g a r , 3 8 8 S. W. 2 d 9 2 7 , 929 (Tex. 1965). I n restric ted appea ls, there are no presumptions in favor of valid issuance, service , and retu rn o f ci t at i on. Fidelity & Guar. Ins. Co. v. Drewery Constr. Co. , 186 S.W .3d 571, 573 (Tex. 2006).

2May s asser ts, and t he trial court found afte r hear ing, that “ser vice of citation was
acc omplished upon the Secre tary of State on May 10, 2017.” Howeve r, the secr etar y of state is ag ent of an entity for service of proce ss only “if the reg istered ag ent of the entity cannot with reasonable diligence be found at the registered office of the entity .” Tex. Bus. Org s. Code § 5.251(1)( B) (empha ses supplied).

Her e, May s’s proce ss-serve r attested to providing ser v i ce by cer tified mail, not to Comal’s reg istered office addre ss, but instead, to a wrong addre ss. Moreove r, the proce ss-serve r’s aff idavit wholly fails to state any diligenc e employ ed, rea sonable or not, in attempting to locate the reg istered a g ent at Comal’s re g istered of fice

. I n an appar ent eff

ort to demonstrate g lob al d i l i g ence , May s states in her brief that her attorney unsucce ssfully reque sted opposing counsel to waive service of citation. She also asser ts that she attempted persona l service twice upon Comal. But to support a defa ult judgme nt based upon substitut ed service pursuant to section 5.251(1)( B) , the rec ord must show that rea sonable diligenc e
was used in s eeking service on the reg istered ag ent of the entity at its reg istered office

. See RW L Constr

. , In c. v. Erickson , 877 S.W .2d 449, 451 (Tex. App.—Houston [1st Dist.] 1994, no writ); Gene ral Office Outfitters, Inc. v. Holt , 670 S.W .2d 748, 749 (Tex. App.—Dallas 1984, no wr it).

Be cause the attempted service of citat i o n u p on Comal is invalid and of no eff ect, the trial cour

t acquire d no persona l jurisdiction over Comal and the def ault judgme nt is void. The defa ult j udg ment is vacated and the cause is rema nded to the trial court for further proce eding s. See W achovia Bank of

Del., N.A. v. Gilliam , 215 S.W .3d 848, 851 (Tex. 2007) (per curia m) (vac ating defa

ult judgment and r emanding for f urther pr ocee dings)

.
3__________________________________________ Bob E. Shannon, Justice Be fore J ustices Goodwin, F ield, and Shannon* Vac ated a nd Remanded Filed: June 12, 2018 * Be fore Bob E. Shannon, Chief J ustice (r etired) , Third Court of Appe als, sitting by assig nment. See Tex. Gov’t Code § 74.003(b).

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