REVERSE 

### and REMAND; Opinion Filed l)ecember 13, 2012



### In The 

## (!EourtofZtppeat jfiftlj

## JOitrittofZEtxaatafta No.05-11-00710-CV _______

BAILEY’S FURNITURE, INC., Appellant V. 

### GRAHAM-RUTLEDGE & 

### COMPANY, Appellee On Appealfrom the 191stJudicialDistrictCourt Dallas County, Texas Trial CourtCauseNo. DC11-02523-J

MEMORANDUM OPINION BeforeJustices O’Neill, Francis, andMurphy OpinionbyJusticeFrancis Bailey’s Furniture, Inc. appeals a no-answer defaultjudgment against it in a breach of contract suitbrought by Graham-Rutledge & Company. In two issues, Bailey’s argues the trial court lacked personaljurisdiction to renderthe defaultjudgmentbecause service ofprocess was defective and, alternatively, the trial court abused its discretion in denying its motion for new trial. Because we agree that service was defective, we reverse the trial court’sjudgment and remandforfurtherproceedings. Graham-Rutledge alleged ithad an exclusive listing agreement with Bailey’s to market a commercial property in Dallas and that Bailey’s sold the property withoutpaying the real estatecommission provided br in the agreement. Graham—Rutledge sued Bailey’s and two parties ‘ho represented the buyer ofthe property. The petition alleged that l3ailev’s could be served by serving its registered agent, Charles Bailey. at 3910 West Camp Wisdom Road. Dallas, Texas, 75237-2425. After making four unsuccessful attempts at service, Graham-Rutledge filed a motion for substituted service supported by the affidavit of the process server. Brandon Parraway. In his affidavit, Parraway asserted the following: “On JULY 28TH, 2010. 1 received the PLAINTIFF’S ORIGINAL PETITION, attached. for service upon Defendant. CHARLES BAILEY, 3910 WEST CAMP WISDOM ROAD, DALLAS, TX, 75237, which is Defendant’s usual place of abode/business, and/oraplace where Defendantcan he found.” Thereafter, Parraway described his four unsuccessful attempts to execute service of process. The affidavitthenprovided: “No further attempts at delivery ofprocess v-crc conducted by me. and there has been no contact with/from Defendant. CHARLES BAILEY. “1 believe further attempts to serve Defendant. CHARLES BAILEY, by personal delivery would be unsuccessful and substituted service would be reasonably effective in giving Defendant, CHARLES BAILEY, notice ofthis suitby delivering the PLAINTIFF’S ORIGINAL PETITION, attached at the address identified as, CHARLES BAILEY, 3910 WEST CAMP WISDOM ROAD, DALLAS, TX, 75237. By serving anyone over the age of sixteen years old living/employed at the above mentionedresidence/business, or; 2. By properly affixing to the front entranceway/front gatepost of the above mentioned residence/usual place ofbusiness. The trial court grantedthemotion and signed an order authorizingthatBailey’s be served by “affixing the citation, original petition, and order on the front door ofthe place ofbusiness ofBailey’s Furniture located at 391 0 West (‘amp Wisdom Road. Dallas. Texas 73237.” Parra\av executed areturn ofservice showing that he affixed the citation. original petition. discovery, and order on motion for substituted service “on the front door ofthe place ofbusiness ofBailey’s Furniture, Inc.” located atthe WestCamp Wisdom road address. For reasons not necessary to this appeal. Bailey’s did not tile an answer. The trial court then rendered an interlocutory defaultjudgment against Bailey’s and awarded Graham—Rutledge $48,238.98 for the breach ofcontract and $1950 in attorney’s fees. Bailey’s flied a motion for

new trial arguing service ofprocess was defective. The trial court denied the motion and then severed the case against Bailey’s. making the default judgment against it final After the

severance. Bailey’s filed an amended motion fbr nev trial, which was denied. This appeal ensued.Before a trial court may properly render a defaultjudgment, the record must reflect the trial court has jurisdiction over the subject matter and the parties and the case is ripe for judgment. unlay v. .Jones. 435 S.W.2d 136, 138 (Tex. 1968): TJai’rot Cominc ‘ns, Inc. v. 101112 & Counlrv P ‘ship. 227 S.W.3d 372. 376 (Tex. App.—llouston [1st Dist.1 2007. pet. denied). Unless the record affirmatively shows, “at the time the defaultjudgment is entered,” either an appearance by the defendant, proper service ofcitation, or awritten memorandum ofwaiver, the trial court does not have in personarn jurisdiction to render a default judgment against the defendant

. Marrol Coinmc ‘us. 227 S.W.3d at 376. Even actual notice to a defendant after defective service is “not sufficient to convey upon the court jurisdiction to render default judgmentagainsthim.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Texas Rule ofCivil Procedure 106 allows the trial court to sign an order authorizing a substitute method ofservice, provided the plaintifffiles a motion supported by proper affidavit.Lx. R. Civ. P. 106(h: S/u/c Ith,n i7rc’ & ( as ( u.

. Cost/er. 868 S.W.2d 298. 298—99 (1 cx. 1993) (per curiarn). The supporting affIdavit must state (1) “the location ofthe defendant’s usual place ofbusiness or usual place ofabode or other place where the defendant can probably be found” and (2) the specific thcts showing that traditional service has been attempted “at the 

### locationnamed in such aflidavit hut 

### has not been successful.” TEx. R. Civ. P. 106(b). Failure to affirinativelv show strict compliance with this rule renders the attempted service of process invalid and ofno effect. Wi/son, 800 S.W.2d at 836. There are no presumptions favoring valid issuance, service, and return ofcitation in the face ofadirectattack on adefaultjudgment. Id. Here. service was sought upon Bailey’s Furniture, but the affidavit upon which the trial court based its decision to order substituted service identified the defendant as Charles Bailey. We recognize the petition alleged Charles Bailey is the registered agentofthe defendant, butthe affidavit does not identify Charles Bailey as the registered agent. Because the affidavit misidentifies the defendant. it fails to establish the necessary factors under rule 106(b) with respect to Bailey’s. Under these circumstances, we conclude Bailey’s was not served in strict compliance with rule 106(b) because substituted service not properly authorized by the affidavit relied upon by the trial court. Without proper service, the trial court never obtained personal jurisdiction over Bailey’s and the default judgment against it is void. Given our disposition ofthis issue. we neednot address Bailey’s second issue. See TEx. R. App. P. 47.1. We reverse the trial court’sjudgment and remand for furtherproceedings consistent with this opinion.

OLLY NCIS JUSTICE 1 lO7lOF.P05

4

## Qtottrt oftpptaI jftftj 

## 1OttrictofZ!rexa ata1ta JUDGMENT BAILEY’S FURNITURE, INC.. Appeal fromthe 191stJudicial District Appellant CourtofDallas County, Texas (Trial Court No. DCI l-02523-J). No. 05-1 l-00710-CV V. Opinion deliveredby Justice Francis; Justices O’Neill and Murphy participating. GRAHAM-RUTLEDGE & COMPANY. Appellee Based on the Courts opinion ofthis date, we REVERSE the trial court’s judgment and REMANI) the cause to the trial court fbr further proceedings consistent with the opinion. We ORDER that appellant Bailey’s Furniture, Inc. recover its costs ofthis appeal from appellee Graham-Rutledge & Company. Judgmententered December 13. 2012.

MOLLY NC1S