1

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ACADIAN PROPERTIES AUSTIN, LLC

Appellant,

v.

KJMONTE INVESTMENTS, LLC, 

Appellee.

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§

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No. 08-20-00048-CV

Appeal from the

423rd Judicial District Court

of Bastrop County, Texas

(TC#423-6368)

O P I N I O N

This is a restricted appeal from an order granting a default judgment against Appellant 

Acadian Properties Austin, LLC (“Acadian”) in favor of Appellee KJMonte Investments, LLC

(“KJMonte”). Finding no error on the face of the record, we affirm the trial court’s judgment.

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Original Petition and Citation

On March 12, 2019, KJMonte filed a petition alleging, among other things, that Acadian 

had breached a 2012 agreement regarding a real estate development project in Bastrop County, 

Texas. In its petition, KJMonte alleged that Acadian was a “foreign limited liability company 

1 This case was transferred from our sister court in Austin, and we decide it in accordance with the precedent of that

court to the extent required by TEX.R.APP.P. 41.3.
2

having designated a registered agent in the State of Texas with the Texas Secretary of State.” 

KJMonte further alleged that Acadian could be served with process by delivering a copy of its 

petition and citation to Acadian’s designated agent, Brandon A. Badeaux, at his registered address 

located at 1254 Pine Forest Circle, Round Rock, Texas 78664 (the “1254 address”). That same 

day, the district clerk issued a citation to be served on Badeaux, as Acadian’s registered agent, at 

the 1254 address. The clerk signed the citation with the notation “under my hand and seal of said 

court,” but a stamped seal did not appear on the face of the citation.

B. The Affidavit of Non-Service on Badeaux

The record contains an “Affidavit of Nonservice” from a certified process server, stating 

that he had received KJMonte’s petition and citation for service on March 14, 2019, but was unable 

to serve it on Badeaux at his registered address. In his affidavit, the process server explained that 

he had previously received a citation and petition to be served on Badeaux as Acadian’s registered 

agent in a “different case,” and that on March 11, 2019, he had attempted service on Badeaux at 

the 1254 address, but had discovered that the address did “not exist.” He stated that his office ran 

a search on the WCAD.org website, which revealed that Badeaux had previously owned a property

on the same street located at 1354 Pine Forest Circle in Round Rock Texas (the “1354 address”), 

but that Badeaux had sold that property in July of 2009.2 The process server stated that he 

nevertheless attempted service at the 1354 address on March 11, 2019--again in the other case--

but that no one answered the door. He therefore concluded that he could not, with “reasonable 

diligence,” serve KJMonte’s petition and citation on Badeaux, and that service of process should 

instead be obtained through the Secretary of State as agent for a foreign filing entity.

2 WCAD.org is the website for the Williamson County Central Appraisal District in which Round Rock Texas is 

located. See https://www.wcad.org.
3

C. Service on the Secretary of State

The record next contains an “Affidavit of Service” signed by a second process server, 

stating that he had received duplicate copies of KJMonte’s petition and citation on March 14, 2019,

to be served on Acadian, and that he had delivered them to the Secretary of State on March 27, 

2019. The Secretary of State’s office subsequently provided a sworn certification stating that it

had received copies of KJMonte’s petition and citation on March 27, 2019, and had forwarded 

them on March 28, 2019, to Badeaux as Acadian’s registered agent at the 1254 address by certified 

mail, return receipt requested, but that they were returned on April 2, 2019, bearing the following 

notation: “Return to Sender, Not Deliverable as Addressed, Unable to Forward.”

D. The Default Judgment

On June 26, 2019, KJMonte filed a motion for entry of default judgment, attaching an 

affidavit from its attorney describing the steps he took to attempt to serve Acadian, as well as the 

process servers’ two affidavits and the Secretary of State’s certification as exhibits. In addition, 

KJMonte attached a document from the Secretary of State’s website, confirming that Acadian had 

named Badeaux as its registered agent at the 1254 address in its original filing with the Secretary 

of State in September of 2007.

3

 KJMonte also attached a sworn declaration from its manager,

Kathleen J. Monte, detailing the alleged breaches that Acadian had committed, and averring that

KJMonte had incurred damages in the amount of $600,724.83 as the result of those breaches.4 

3 The document further provided an address for Acadian in Mandeville, Louisiana. Acadian, however, does not 

suggest that KJMonte should have attempted service at that address.

4

In her affidavit, Monte averred that pursuant to the parties’ agreement, her company had provided Acadian with 

financing to construct a number of “home projects” in Bastrop County, but that Acadian had breached its agreement 

by: (1) selling one of the properties it constructed with KJMonte’s funds and absconding with the profits, and (2) 

failing to complete construction of two other projects and misappropriating the funds KJMonte had given Acadian for 

their construction.
4

And finally, KJMonte’s attorney averred in his affidavit that he had, to date, rendered legal services 

to KJMonte in the approximate amount of $15,000.

The trial court scheduled a hearing on the motion for July 18, 2019, and KJMonte sent 

Acadian a notice of the hearing addressed to Badeaux at the 1254 address by certified mail, return 

receipt requested, but no one from Acadian appeared at the hearing. At the hearing, the trial court 

took judicial notice of all of the pleadings and affidavits on file. The trial court thereafter entered 

a default judgment in KJMonte’s favor in the total amount of $615,724.83, which included both 

an award of damages in accordance with Monte’s affidavit, and an award of reasonable and 

necessary attorney’s fees.

Based on a certificate of last known address submitted by KJMonte’s attorney, the clerk 

sent Acadian a notice of the default judgment, dated July 19, 2019, to the 1254 address in care of 

Badeaux. The mailing was returned to the clerk’s office with the following notation: “RETURN TO 

SENDER ATTEMPTED - NOT KNOWN UNABLE TO FORWARD.” Acadian filed its notice of restricted 

appeal on January 21, 2020.

II. ISSUES ON APPEAL

In one issue with multiple subparts, Acadian contends that the trial court erred in entering 

a no-answer default judgment because (1) the clerk’s citation did not contain a stamped seal, (2) 

KJMonte did not use reasonable diligence in attempting to serve Badeaux as its registered agent 

before serving the Secretary of State, (3) KJMonte failed to allege in its petition that service on the 

Secretary of State was proper, and (4) the record reflects that Acadian did not receive actual notice 

of KJMonte’s lawsuit prior to entry of the default judgment.
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III. STANDARD OF REVIEW

A party can prevail in a restricted appeal only if: “(1) it filed its notice of restricted appeal 

within six months after the judgment was signed; (2) it was a party to the underlying suit; (3) it did 

not participate in the actual trial of the case and did not timely file any postjudgment motions or 

requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the 

record.” Insurance Co. of the State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per 

curiam); Collective Interests, Inc. v. Reagan Nat’l Advert., No. 03-08-00283-CV, 2010 WL 

2977458, at *2 (Tex.App.--Austin July 29, 2010, no pet.) (mem. op.), citing TEX.R.APP.P. 26.1(c), 

30. The parties agree that the first three elements have been met, and only contest the fourth 

element--whether error is apparent on the face of the record.

Error is apparent on the face of the record when the record fails to show strict compliance

with the rules relating to the issuance, service, and return of citation. Asset Prot. & Sec. Services, 

L.P. v. Armijo, 570 S.W.3d 377, 380-81 (Tex.App.--El Paso 2019, no pet.) citing Primate Constr., 

Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994) (per curiam); see also De La Garza v. Dunn, 

No. 03-19-00849-CV, 2021 WL 1202089, at *4 (Tex.App.--Austin Mar. 31, 2021, no pet.) (mem. 

op.) (recognizing that a no-answer default judgment cannot stand when the defendant was not 

served in strict compliance with applicable requirements). Because trial courts lack jurisdiction 

over a defendant who was not properly served with process, and because no-answer default 

judgments are disfavored in the law, the Texas Supreme Court has held that it will “indulge no 

presumptions in favor of valid issuance, service, or return of citation,” and that instead, proper 

service must affirmatively appear on the record. Spanton v. Bellah, 612 S.W.3d 314, 316-17 (Tex. 

2020), citing Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 

1985); see also WWLC Inv., L.P. v. Miraki, No. 20-0173, 2021 WL 2483765, at *2 (Tex. June 18, 
6

2021) (per curiam) (recognizing that proper citation and return of service are required for the trial 

court to exercise personal jurisdiction over the defendant). Service of process that does not 

strictly comply with the rules’ requirements is therefore “invalid and of no effect.” Spanton, 612 

S.W.3d at 317.

In a restricted appeal, the prevailing party bears the burden to prove proper service of 

process. See U.S. Bank Trust, N.A. as Trustee for LSF8 Master Participation Trust v. Freedom 

Indeed Found., Inc., No. 08-20-00101-CV, 2021 WL 754345, at *2 (Tex.App.--El Paso Feb. 26, 

2021, no pet.) (mem. op.), citing Primate Constr., Inc., 884 S.W.2d at 153; Uvalde Country Club,

690 S.W.2d at 885 (reversing the entry of a default judgment where the “record” did not reflect 

strict compliance with the rules of civil procedure relating to the issuance, service, and return of 

citation); see also Bank of New York v. Chesapeake 34771 Land Trust, 456 S.W.3d 628, 631 

(Tex.App.--El Paso 2015, pet. denied) (prevailing party bears the burden to prove service of 

process was proper, including under any of the long-arm statutes authorizing substituted service 

on the Secretary of State).

IV. LACK OF A COURT SEAL ON THE CITATION

Acadian first contends that there was error on the face of the record because the citation 

issued by the district court clerk did not have a court seal affixed or imprinted on it. Acadian 

contends that the lack of a seal on the face of the citation violates Rule 99 of the Texas Rules of 

Civil Procedure, which requires, among other things, that a citation be “signed by the clerk under 

seal of court.” TEX.R.CIV.P. 99 (b)(2). In support of its argument, Acadian correctly points out 

that some courts in the state have interpreted Rule 99 to mean that a citation that does not have a 

seal appearing on its face is defective. See, e.g., Midstate Envtl. Services, LP v. Peterson, 435 

S.W.3d 287, 290 (Tex.App.--Waco 2014, no pet.) (concluding that a citation was defective due to 
7

the lack of a “seal visible on the copy of the original citation in the clerk’s record.”); Paramount 

Credit, Inc. v. Montgomery, 420 S.W.3d 226, 233 (Tex.App.--Houston [1st Dist.] 2013, no pet.)

(recognizing that the absence of a court seal renders a citation invalid); Wells v. Hudson & Keyse, 

LLP, No. 05-08-00990-CV, 2009 WL 4263825, at *2 (Tex.App.--Dallas Dec. 1, 2009, no pet.)

(mem. op.) (holding that “the failure of the clerk to affix [a court] seal to citation is fatal to a default 

judgment.”); see also Verlander Enters., Inc. v. Graham, 932 S.W.2d 259, 262 (Tex.App.--El Paso 

1996, no pet.) (finding that a citation, which bore neither the court’s stamp nor the clerk’s 

signature, was not a validly-issued citation).

However, as KJMonte points out, the Austin Court of Appeals has interpreted Rule 99

differently. That court views Rule 99 to only require the clerk to state that they have signed the 

citation under seal of court. See Consol. Am. Indus., Inc. v. Greit-Amberoaks, L.P., No. 03-07-

00173-CV, 2008 WL 5210925, at *2 (Tex.App.--Austin Dec. 12, 2008, no pet.) (mem. op.) 

(finding a citation valid where it was signed by a deputy clerk, “as issued and given under my hand 

and the seal of said court.”). And, as set forth above, although no stamped seal was affixed to the 

citation in the present case, the clerk who issued the citation expressly stated that she was signing 

the citation “under my hand and seal of said court.”

Accordingly, because we are constrained by Rule 41.3 of the Texas Rules of Appellate 

Procedure to follow the precedent of the Austin court on this issue, and in the absence of any Texas 

Supreme Court case to the contrary, we conclude that the citation in the present case was not 

defective due to the lack of a stamped seal. TEX.R.APP.P. 41.3 (“In cases transferred by the 

Supreme Court from one court of appeals to another, the court of appeals to which the case is 

transferred must decide the case in accordance with the precedent of the transferor court under 
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principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent 

with the precedent of the transferor court.”).

V. SERVICE ON THE SECRETARY OF STATE

Acadian next contends that the record does not reflect that KJMonte used reasonable 

diligence in attempting to serve Acadian’s registered agent prior to serving the Secretary of State 

in his place. KJMonte responds that service on the Secretary of State was proper because Acadian 

failed to either designate or maintain a registered agent in the State, or alternatively, that its 

registered agent could not, with reasonable diligence, be served at his registered address. We 

agree with KJMonte’s latter argument.

A. Applicable Law

The Texas Business Organizations Code provides that in order to conduct business in this 

state, a foreign entity, including a foreign limited liability company such as Acadian, must register 

with the Secretary of State, and must, among other things, provide the name and address of the 

“initial registered agent for service of process that Chapter 5 requires to be maintained.” 

TEX.BUS.ORGS.CODE ANN. §§ 9.001(a)(b); 9.004(9). In turn, Chapter 5 of the Code provides that 

an entity registered under the above provisions, known as a “foreign filing entity,” must “designate 

and continuously maintain in this state” both a registered agent and a registered office for service 

of process.

5 TEX.BUS.ORGS.CODE ANN. §§ 1.002(29); 5.201(a)(b). The registered agent has a 

duty to “receive or accept, and forward to the represented entity . . . any process, notice, or demand 

that is served on or received by the registered agent[.]” TEX.BUS.ORGS.CODE ANN. 

5 Acadian does not dispute that it is a foreign filing entity that is governed by the Business Organizations Code, and 

the record contains undisputed evidence that it made its original filing as a foreign Limited Liability Company (LLC)

in September of 2007.
9

§§ 5.201(b)(1)(2); 5.206(a)(1); see also TEX.BUS.ORGS.CODE ANN. § 5.2011(a) (the designation 

of a person as registered agent of an entity in a registered agent filing is an affirmation by the entity

that the person named as registered agent has consented to serve in that capacity).

Section 5.251 of the Code provides for two separate instances in which the Secretary of 

State may become a filing entity’s agent for service of process in place of a registered agent:

The secretary of state is an agent of an entity for purposes of service of process, 

notice, or demand on the entity if: (1) the entity is a filing entity or a foreign filing 

entity and: (A) the entity fails to appoint or does not maintain a registered agent in 

this state; or (B) the registered agent of the entity cannot with reasonable diligence 

be found at the registered office of the entity[.]

TEX.BUS.ORGS.CODE ANN. § 5.251.

6 As KJMonte argues that service of process on the Secretary 

of State was proper under both subsections, we examine the validity of the service under each of 

the two.

B. Did Acadian Fail to Designate or Maintain a Registered Agent?

KJMonte first argues that service on the Secretary of State was proper because Acadian 

failed to designate or maintain a registered agent as required by subsection (A) because Acadian 

did not provide a valid address for its registered agent, and instead provided the Secretary of State 

with a “non-existent” one. In support of its argument, KJMonte correctly points out that a foreign 

filing entity has a statutory duty to provide the Secretary of State with a valid address for its 

registered agent and office, as well as a duty to update the address when necessary, and that its 

failure to do so constitutes negligence in the “service-of-process context.” 7See, e.g., Katy 

6

In addition, a filing entity’s initial registration must include a statement that the “secretary of state is appointed the 

agent of the foreign filing entity for service of process under the circumstances provided by section 5.251.” 

TEX.BUS.ORGS.CODE ANN. § 9.004 (11).

7 We decline to presume, however, that the 1254 address Acadian provided for Badeaux in its initial registration in 

2007 did not exist at that time, as it is possible the City or County could have later made numbering changes on the 
10

Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 164 (Tex. 2015). However, KJMonte 

cites no any authority for the proposition that the failure to provide a valid address for a registered

agent, or to update its registered agent’s address, is the equivalent of failing to designate or 

maintain a “registered agent” within the meaning of subsection (A). Instead, the cases cited by 

KJMonte all address the question of whether a plaintiff used reasonable diligence within the 

meaning of subsection (B) in attempting to serve an entity’s registered agent at the address 

provided to the Secretary of State, where the process server could not find the registered agent at 

his registered address, either because the agent had moved away, or because the process server 

otherwise found the registered address to be vacant.

8

Moreover, although the requirements of maintaining a registered agent and a registered 

office at which the agent may be served with process are clearly related, the terms are defined 

separately in the Code, and therefore appear to have different meanings. The Code defines the 

term, “registered agent,” as the entity or individual on whom process may be served, while defining 

street causing the address to later become non-existent. Nevertheless, if it did cease to exist, Acadian would have 

had a duty to update the address with the Secretary of State.

8 See, e.g., Katy Venture, Ltd. v. Cremona Bistro Corp., 436 S.W.3d 415, 419 (Tex.App.--Dallas 2014), rev’d on other 

grounds, 469 S.W.3d 160 (Tex. 2015) (plaintiff used reasonable diligence where it attempted to serve defendant at 

registered agent’s address, but the evidence demonstrated that agent had moved more than two and a half years earlier, 

without updating the address); BLS Dev., LLC v. Lopez, 359 S.W.3d 824, 827 (Tex.App.--Eastland 2012, no pet.)

(plaintiff exercised reasonable diligence in making one attempt to serve defendant’s registered agent at address given, 

where process server found the property to be vacant); Liberty Label Co., Inc. v. Morgan Adhesives Co., No. 04-04-

00279-CV, 2005 WL 1475332, at *1 (Tex.App.--San Antonio June 22, 2005, no pet.) (mem. op.) (holding that process 

server's one attempt to serve registered agent at vacant address constituted reasonable diligence); Houston’s Wild W., 

Inc. v. Salinas, 690 S.W.2d 30, 32 (Tex.App.--Houston [14th Dist.] 1985, writ ref’d n.r.e.) (plaintiff exercised 

reasonable diligence in attempting to serve defendant’s registered agent, where defendant provided only a post office 

box for its registered agent and process server forwarded process to the box number given but its letter was returned 

unsigned); Collective Interests, Inc. v. Reagan Nat’l Advert., No. 03-08-00283-CV, 2010 WL 2977458, at *4 

(Tex.App.--Austin July 29, 2010, no pet.) (mem. op.) (plaintiff exercised reasonable diligence in attempting to serve 

defendant’s registered agent at address given, where agent had moved away two years prior); Autodynamics Inc. v. 

Vervoort, No. 14-10-00021-CV, 2011 WL 1260077*4 (Tex.App.--Houston [14th Dist.] Apr. 5, 2011, no pet.) (mem. 

op.) (plaintiff exercised reasonable diligence in attempting to serve defendant’s registered agent, where evidence 

established that the registered agent no longer lived at the registered office address).
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the term, “registered office” as the “street address where process may be personally served on the 

entity’s registered agent.” TEX.BUS.ORGS.CODE ANN. §§ 5.201(a)(1)(2), (b), (c). And there is 

no dispute on the record that Acadian did in fact name Badeaux as its registered agent in its original 

filing in 2007. In addition, there is no dispute that Badeaux remained as Acadian’s designated 

registered agent at the time of KJMonte’s service attempts. The Code contains express provisions 

on how to change both the name of a designated registered agent, and the method by which a 

registered agent may resign his position. TEX.BUS.ORGS.CODE ANN. § 5.202(a) (a filing entity or 

foreign filing entity may change its registered office, its registered agent, or both by filing a 

statement of the change); TEX.BUS.ORGS.CODE ANN. § 5.204(a) (a registered agent of a filing

entity or a foreign filing entity may resign as the registered agent by giving notice to that entity

and to the appropriate filing officer). Here, there is nothing in the record to suggest that Acadian 

designated a different agent, or that Badeaux resigned as Acadian’s agent prior to KJMonte’s 

attempts to serve Badeaux.

Accordingly, we disagree with KJMonte’s argument that Acadian failed to designate or 

maintain a registered agent in this state within the meaning of subsection (A) of the Code, and we 

therefore turn to the question of whether its registered agent could not, with reasonable diligence, 

be served at its registered address within the meaning of subsection (B).

C. Did Kjmonte Exercise Reasonable Diligence in Attempting to Serve Acadian’s 

Registered Agent?

Acadian contends that there is nothing in the record to support a finding that KJMonte used 

“reasonable diligence” in attempting to serve Badeaux before serving the Secretary of State, as 

required by subsection (B). In particular, Acadian points out that the process server only 

documented his attempts to serve Badeaux with process in another admittedly unrelated case, but

did not attempt to serve Badeaux with KJMonte’s petition and citation from this case. In making 
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this argument, Acadian recognizes that making a “single attempt” to serve process at the registered 

agent’s address may be sufficient in some circumstances to demonstrate reasonable diligence, but 

points out that the record must reflect that there was at least one such attempt before service on the 

Secretary of State is proper. See, e.g., J & J Container Mfg., Inc. v. Cintas- R. U.S., L.P., No. 01-

14-00933-CV, 2015 WL 5829667, at *4 (Tex.App.--Houston [1st Dist.] Oct. 6, 2015, no pet.)

(mem. op.) (there must be at least one attempt to serve the registered agent at its registered office

before resorting to substituted service.); see also BLS Dev., LLC v. Lopez, 359 S.W.3d 824, 827-

28 (Tex.App.--Eastland 2012, no pet.) (record must show at least one attempt at service on 

registered agent at registered office).

We agree with KJMonte, however, that no such attempt was necessary, as it would have 

been futile under the unique facts of this case. In general, “Texas law does not require the 

performance of a futile act.” Duncan v. Woodlawn Mfg., Ltd., 479 S.W.3d 886, 897 (Tex.App.--

El Paso 2015, no pet.), citing DiGiuseppe v. Lawler, 269 S.W.3d 588, 594-95 (Tex. 2008). More 

particularly, the law does not require a process server to engage in service attempts that would be 

futile. See Pirate Oilfield Services, Inc. v. Cunningham, No. 11-19-00080-CV, 2021 WL 

1033976, at *4 (Tex.App.--Eastland Mar. 18, 2021, no pet.) (where process server learned that

registered address was occupied by new property owners, any other attempts to serve process at 

the registered address “would have been futile.”); Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 

S.W.3d 31, 34 (Tex.App.--Houston [1st Dist.] 2003, no pet.) (noting that one attempt at service 

constitutes reasonable diligence when it is clear from the record that future attempts would be 

futile, where it was learned the location had been occupied by some other person or entity for ten 

years); G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 816-17 (Tex.App.--Houston [1st Dist.] 

1996, no pet.) (recognizing that future attempts at service would have been futile after a deputy 
13

attempted to serve the defendant’s registered agent at his registered address, but found that the 

address had been occupied by another resident for nearly a year); BLS Dev., LLC, 359 S.W.3d at 

827-28 (noting that repeated attempts at service on a vacant property would be futile); Paramount 

Credit, 420 S.W.3d at 231-33 (“We have previously held that one attempt at service constitutes 

reasonable diligence when it is clear from the record that further attempts would be futile.”).

Here, the process server expressly averred in his affidavit that he had learned only three 

days before receiving the process in this case that the address Acadian provided to the Secretary 

of State for Badeaux did not exist, and that he therefore could not, with reasonable diligence, serve 

Badeaux at that address. And, as there is nothing in the record to rebut the process server’s 

statement, we accept it as true. See, e.g., Primate Const., 884 S.W.2d at 152 (a process server’s 

return of service is “not a trivial, formulaic document [and it] has long been considered prima facie 

evidence of the facts recited therein.”), citing Gatlin v. Dibrell, 11 S.W. 908, 909 (Tex. 1889). 

“The return of the officer imports absolute verity, and was sufficient to authorize the rendition of 

judgment upon default . . . .”); see also G.F.S. Ventures, 934 S.W.2d at 816-17 (an officer’s 

recitations in a return of service are given great weight as proof of service). Accordingly, unlike 

the cases upon which Acadian relies in which there was no clear explanation for why a registered

agent could not be served, the process server in the present case provided a clear and unrebutted 

explanation for why service on Badeaux would not have been feasible. See, e.g., Paramount 

Credit, 420 S.W.3d at 232 (where process server’s affidavit was unclear regarding what attempts 

he made to serve the defendant’s registered agent at his registered address, the record did not reflect 

that plaintiff used reasonable diligence in attempting to serve process on the agent prior to serving 

Secretary of State); J & J Container Mfg., 2015 WL 5829667, at *3 (reasonable diligence was not 

shown where the record contained no citation issued by a district clerk, and no return explaining 
14

why an attempt at service was unsuccessful). Accordingly, given the unique facts of this case, we 

agree with KJMonte that once the process server learned that Badeaux's registered address was 

“non-existent,” it would have been futile for him to attempt service at that address.

Moreover, although the process server’s affidavit of nonservice reflects that he learned

through his own independent research that Badeaux previously owned property on the same street, 

KJMonte was not required to attempt service at that location prior to serving the Secretary of State 

with process. The Code expressly provides that service on the Secretary of State is proper if the 

registered agent “cannot with reasonable diligence be found at the registered office of the entity.” 

TEX.BUS.ORGS.CODE ANN. § 5.251(1)(B) (emphasis supplied). Accordingly, it is well-settled 

that a plaintiff is only required to attempt service at the address given to the Secretary of State, and 

need not make any attempt to serve the defendant elsewhere. See, e.g., Liberty Label Co., Inc. v. 

Morgan Adhesives Co., No. 04-04-00279-CV, 2005 WL 1475332, at *1 (Tex.App.--San Antonio 

June 22, 2005, no pet.) (mem. op.) (where process server attempted to serve registered agent at 

registered address, but found house to be vacant, process server was not required to attempt to 

ascertain agent’s new address or telephone number); Pirate Oilfield Services, 2021 WL 1033976, 

at *4 (where process server found that registered agent was not at the registered address, he was 

not required to attempt to locate agent at any other location). And, in turn, the fact that KJMonte 

was aware of a possible alternative location at which Badeaux could be found through the process 

server’s research is irrelevant to the question of whether KJMonte used reasonable diligence in 

attempting to serve Badeaux at his registered address.

9

See, e.g., BLS Dev., 359 S.W.3d at 827

9 As the Texas Supreme Court has recognized, a plaintiff’s knowledge of a defendant’s correct address may be 

relevant to the question of whether the plaintiff acted negligently with respect to Rule 239a of the Texas Rules of Civil 

Procedure, which requires the plaintiff to provide the court clerk with the defendant’s last known address for purposes 

of giving the defendant notice of a default judgment. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 

160, 164 (Tex. 2015), citing TEX.R.CIV.P. 239a. However, the court has also expressly recognized that such 
15

(“process server’s attempts to find the registered agent at the second address, or at any other 

address, were unnecessary and are irrelevant to our determination of reasonable diligence [as the] 

only relevant attempt of service, for purposes of determining reasonable diligence, is the process 

server’s sole attempt at service on the registered agent at the registered office); see also Pirate 

Oilfield Services, 2021 WL 1033976, at *3 (focus is solely on the process server’s attempts to 

serve the registered agent at the registered address and not on other steps the process server took 

to locate the agent).

Accordingly, given the unique circumstances of this case, we conclude that Badeaux could 

not, with reasonable diligence, be served with process at his registered address, and that service on 

the Secretary of State was therefore proper under subsection (B) of the Code.

VI. KJMONTE’S FAILURE TO AMEND ITS PETITION

Acadian next contends that the trial court erred in entering the default judgment, as 

KJMonte did not allege any facts in its petition to support a finding that service of process on the 

Secretary of State was proper. Acadian points out that KJMonte only alleged in its original 

petition that service of process was proper on Badeaux as Acadian’s registered agent. It contends, 

however, that KJMonte was required to amend its petition after it received the process server’s 

affidavit of nonservice on Badeaux to allege that it had used reasonable diligence in attempting to 

serve Badeaux, and that service of process on the Secretary of State was therefore proper. We 

conclude, however, that KJMonte was not required to make those allegations in its petition, and 

knowledge is irrelevant to the question of whether service of process on the Secretary of State was valid, as a plaintiff’s 

only duty is to attempt to serve the defendant’s registered agent at his registered address prior to serving the Secretary 

of State. Id.; see also Nussbaum v. Builders Bank, 478 S.W.3d 104, 109 (Tex.App.--Fort Worth 2015, pet. denied)

(recognizing same distinction).
16

that instead, the proper inquiry in a restricted appeal of this nature is whether the record as a whole 

reflects that service on the Secretary of State was proper.

In order to affirm a default judgment in a restricted appeal, the “record” must demonstrate 

strict compliance with the rules relating to the issuance and service of process, and in turn, it is 

well-established that the “record” in a restricted appeal consists of “all papers on file in the appeal.” 

Bank of New York, 456 S.W.3d at 631; see also Gonzalez v. Perez, 587 S.W.3d 819, 822 

(Tex.App.--El Paso 2019, no pet.). Therefore, the question of whether the Code’s “reasonable 

diligence” requirement was met prior to service on the Secretary of State may be determined by 

reviewing the “record as a whole.” See, e.g., Ingram Indus., 121 S.W.3d at 34 (“The record as a 

whole . . . may be considered to determine whether the reasonable-diligence requirement is 

satisfied.”). Significantly, the Austin Court of Appeals has expressly held that the allegations 

supporting service on the Secretary of State are not required to be included in the plaintiff’s

petition, if the facts supporting such service are otherwise reflected in the record. See Collective 

Interests, 2010 WL 2977458, at *3; see also BLS Dev., 359 S.W.3d at 826-27 (rejecting 

defendant’s argument that plaintiff was required to allege in its petition that the defendant could 

be served through the Secretary of State, where the record as a whole demonstrated that plaintiff 

used reasonable diligence in attempting to serve the defendant’s registered agent); Katy Venture, 

Ltd. v. Cremona Bistro Corp., 436 S.W.3d 415, 419 (Tex.App.--Dallas 2014), rev’d on other 

grounds, 469 S.W.3d 160 (Tex. 2015) (although the record must show facts supporting substituted 

service, there is no requirement that a plaintiff's pleadings include those facts). Nor are we aware 

of any authority expressly imposing such a pleading requirement on a plaintiff.

10

10 Acadian’s reliance on our opinion in Bank of New York. v. Chesapeake, 456 S.W.3d 628, 635-36 (Tex.App.--

El Paso 2015, pet. denied) for the imposition of a pleading requirement is misplaced. In that case, the defendant was 
17

Acadian, however, contends that the Austin Court held otherwise in its earlier opinion in 

Redwood Grp., L.L.C. v. Louiseau, 113 S.W.3d 866, 869 (Tex.App.--Austin 2003, no pet.). In 

that case, the defendant also brought a restricted appeal, in which it argued that the plaintiff did 

not use reasonable diligence in attempting to serve its registered agent prior to serving the 

Secretary of State with process. Id. at 869. In resolving the appeal, the court stated that a 

plaintiff’s petition must contain jurisdictional allegations to support a particular method of service. 

Id. at 868. Nevertheless, the court in Redwood actually reviewed the entire record in determining 

whether service on the Secretary of State was proper, and did not limit its review to the allegations 

made in the plaintiff’s petition. Id. at 868-69 (recognizing that the record in a restricted appeal

consists of “all papers on file in the appeal.”). In addition, in its more recent opinion in Collective 

Interests, the Austin court held that a plaintiff was not required to allege in its petition that service 

on the Secretary of State was proper, where the record otherwise contained facts supporting a 

finding of proper service, and we choose to follow that court’s latest pronouncement on the issue. 

And because the record in the present case contains facts that support a finding that service on the 

Secretary of State was proper, it was not necessary for KJMonte to amend its petition to allege 

those facts.

a financial institution, and therefore, service of process was governed by section 17.028 of the Texas Practices and 

Remedies Code, rather than the Business Organizations Code governing service of process on Acadian. Id. at 631, 

citing TEX.CIV.PRAC. & REM.CODE ANN. § 17.028. Acadian’s reliance on Blosser v. ROC Funding Group LLC, 

No. 01-17-00852-CV, 2018 WL 6378006, at *5 (Tex.App.--Houston [1st Dist.] Dec. 6, 2018, no pet.) is also 

misplaced. In that case, the court found that service on the Secretary of State was improper, in part because the record 

reflected that the plaintiff did not attempt service on the defendant’s agent before serving process on the Secretary of 

State. Id. at *5-6. The court in Blosser did not impose any pleading requirements on the plaintiff as Acadian would 

have us do, and instead its ruling was based on a review of the record in determining that the plaintiff did not comply 

with the Code’s reasonable diligence requirement. Id.
18

VII. THE LACK OF ACTUAL NOTICE

Finally, Acadian complains that the record clearly reflects that it did not receive actual 

notice of KJMonte’s lawsuit prior to the entry of the default judgment, pointing out that the 

Secretary of State’s certification stated that it forwarded KJMonte’s petition and citation to 

Badeaux’s registered address, but that the process was returned to the office marked: “Return to 

Sender, Not Deliverable as Addressed, Unable to Forward.” According to Acadian, this should 

be considered “prima facie evidence” that the Secretary of State did not properly serve it with 

process. This argument, however, reflects a misunderstanding of the Secretary of State’s role.

When, as here, a defendant’s registered agent cannot with reasonable diligence be served, 

the plaintiff is authorized to serve process on the Secretary of State as the defendant’s agent by

delivering duplicate copies of the process to the Secretary’s office. TEX.BUS.ORGS.CODE ANN.

§ 5.252. In turn, the Secretary of State’s only duty is to forward the process to the registered

agent’s most recent address on file with its office by certified mail, return receipt requested. See 

id. § 5.253.

11

 And after doing so, when the Secretary of State files a certification (known as a 

“Whitney Certificate”) stating that the Secretary received the process and forwarded it to the 

registered agent’s address.

12

 That certification is considered conclusive proof, absent evidence 

11 Acadian relies on GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 58 (Tex.App.--Fort Worth 2003, pet. 

denied) for the proposition that when the Secretary of State files a return of service bearing a notation of this nature, 

this is prima facie evidence that it was sent to an incorrect address. That case, however, is inapposite as the defendant 

corporation had not designated a registered agent, and it was therefore the plaintiff’s responsibility to provide the 

Secretary of State with a correct address, which it failed to do. Similarly, Acadian’s reliance on U.S. Bank Nat’l

Ass’n, Trustee v. Bonney, No. 05-12-01294-CV, 2013 WL 7149055, at *1 (Tex.App.--Dallas Dec. 13, 2013, no pet.)

is misplaced, as the defendant there had also failed to designate a registered agent, and the plaintiff provided a nonexistent address to the Secretary of State for service of process.

12 The certificate is known as a “Whitney Certificate” based on the Texas Supreme Court’s holding in Whitney v. L & 

L Realty Corp., 500 S.W.2d 94 (Tex. 1973), in which the court concluded that such a certificate was necessary in cases 

in which the Secretary of State has accepted process as a defendant’s agent. MG Int’l Menswear, Inc. v. Robert 

Graham Designs LLC, No. 05-18-00517-CV, 2019 WL 642724, at *1, n.3 (Tex.App.--Dallas Feb. 15, 2019, no pet.)

(mem. op.) (explaining origin of the term).
19

of fraud or mistake, that process was properly served in compliance with the Code. See Campus 

Investments, Inc. v. Cullever, 144 S.W.3d 464, 465 (Tex. 2004); see also Capitol Brick, Inc. v. 

Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986) (upholding a default judgment where a 

Whitney Certificate was in the record, which the court concluded was conclusive evidence, in the 

absence of any fraud or mistake, that service was valid); Interaction, Inc./State v. State/Interaction, 

Inc., 17 S.W.3d 775, 779 (Tex.App.--Austin 2000, pet. denied) (evidence of citations of service 

and the Secretary of State’s certificate contained in the record are proof that the defendant was 

served in compliance with the statutory requirements).

Here, the record reflects that KJMonte’s second process server delivered duplicate copies 

of its petition and citation to the Secretary of State, and that the Secretary of State thereafter 

fulfilled its statutory duty by forwarding the process to Badeaux’s registered address, by certified 

mail, as reflected in the Whitney Certificate. And Acadian has not alleged that there was any 

fraud or mistake in that service. To the contrary, the record reflects that it was Acadian’s own 

negligence in failing to comply with its statutory duty to provide the Secretary of State with a valid 

address for Badeaux that led to its failure to receive actual notice of the lawsuit from the Secretary. 

See Katy Venture, Ltd., 469 S.W.3d at 164 (defendant’s failure to comply with its duty to update 

its registered agent’s address when necessary constituted negligence in the “service-of-process 

context.”), citing Collective Interests, 2010 WL 2977458, at *4-5 (defendant’s negligence in 

failing to comply with its statutory duty to update the addresses for its registered office and 

registered agent was the cause of its failure to receive actual notice of the lawsuit); see also Campus 

Inv., 144 S.W.3d at 466 (defendant corporation that negligently failed to update the addresses for 

its registered agent and registered office with the Secretary of State’s office could not complain 

that it failed to receive notice of the suit prior to entry of default judgment). Therefore, the 
20

Secretary of State’s Whitney Certificate on file herein conclusively established that Acadian was 

properly served with process.

VIII. CONCLUSION

Because the record reflects that KJMonte strictly complied with the rules pertaining to the 

issuance and service of process, the trial court properly entered the default judgment in KJMonte’s 

favor. Appellant’s sole issue on appeal is overruled. The trial court’s judgment is affirmed.

JEFF ALLEY, Justice

July 30, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.