### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00660-CV

Redwood Group, L.L.C., Appellant

v.

Robert Louiseau, Special Deputy Receiver for American Benefit Plans, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. GN200884, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

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O P I N I O N

Redwood Group, L.L.C. (“Redwood”) brings a restricted appeal from a no-answer

default judgment recovered by Robert Louiseau (“Rec eiver”) in his capacity as special deputy

receiver for some twenty-one individuals and artificial legal entities in volved in the business of

insurance. S ee Tex. R. App. P. 30. The judgment directs that the Receiver recover from Redwood

and two co-defendants, jointly and severally, the sum of $1,951,789.35, together wi th postjudgment interest, attorney’s fees, costs, and permanent injunctive relief in several particulars. We

will reverse the judgment and remand the cause to the district court.2 THE CONTROVERSY

The Receiver's original petition, upon which the judgment rests, designates three

defendants: Redwood, TRG Marketing, L.L.C., and TRG Administration, L.L.C.; and, alleges

against them various wrongful acts under the collective nouns “TRG” and “Defendants.” The

petition avers, in addition, that each of the defendants is “a foreign corporation with its principal

place of business in Indiana

. . . with extensive business contacts with Texas including the regular

and repeated sale of its products to Texas companies and/or individuals,” all without “authority.”

The word “authority” apparently means without official authority from the State of Texas.

Within the ran ge of issues possible to be raised in a restricted appeal, we are

concerned here with only one: whether there exists reversible error apparent from the face of the

record. S ee Tex. R. App. P. 26.1(c), 30. The “face of the record” consists of all papers on file in the

appeal. Norman Communications v. Texas Eastman Co. , 955 S.W.2d 269, 270 (Tex. 1997).

As we understand Redwood’s brief on appeal, it contends that reversible error appears

from the face of the record in that it omits to show affi rmatively that the district court acquired

personal jurisdiction over Redwood by reason of a valid service and return of citations. We will

sustain the point.

DISCUSSION AND HOLDINGS

No presumptions are made in favor of a proper issuance, service, and return of

citation; and, if a proper service of citation is not affirmatively shown by the record there exists

reversible error. A proper service requires strict compliance with the applicable statutes and rules

of civil procedure. When a statutory method of constructive service on a nonresident is invoked in3

support of a defaul t judgment, it must be supported by allegations in the petition of all facts

necessary to support that method of service. Unless these requirements are met, the trial court

acquires no personal jurisdiction over the defendant. S ee Primate Constr., Inc. v. Silver

, 884 S.W.2d

151, 152-53 (Tex. 1994); Wilson v. Dunn

, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club

v. Martin Linen Supply Co., Inc.

, 690 S.W.2d 884, 885 (Tex. 1985); McKanna v. Edgar

, 388 S.W.2d

927, 929-30 (Tex. 1965).

DISCUSSION AND HOLDINGS

We will discuss the issues under three headings suggested by the parties’ arguments

on appeal.

Missing Citations

.

The record contains a copy of a Nevada process server’s verified return. It recites that

on March 18, 2002, he received for service a citation and a copy of the Receiver’s original petition

whic h the process server executed later the same day at an address in Las Vegas, Nevada, “by

delivering [the documents] to: Redwood Group, Ll c [sic] By Delivering To Its Registered Agent,

Incorp. Services, Inc., by serving Debbie White, Secretary, Authorized To Accept.”

The record also contains a copy of an Indiana process server’s verified re turn. It

recites that on March 18, 2002, he received a citation and a copy of the Receiver’s original petition

which the process server executed the same day by delivering the documents to Redwood’s “Chief

Operating Officer, Chris Rhodes, at 37 S. Park Blvd., Greenwood, IN 46143.”4 Copies of the citations referred to in the two foregoing returns do not appear in the

record. Each of the two returns is accompanied instead by an affidavit made by a Texas process

server. Each affidavit declares that the Texas process server received on specified dates the citation

and original petition referred to in the respective returns. Each affidavit then continues as follows:

I am over the age of eighteen, not a party to nor interested in the outcome of the

above [described] suit[.] I have been authorized by written order of the court to serve

citations and othe r notices. The Original Citation has been lost in the mail or was

inadvertently served. Please use this affidavit along with the attached officer’s return

of service or officer’s Declaration of not found to confirm that service has been

perfected or that service was unable to to [sic] perfected for the following reason

listed on the declaration of not found attached.

No “declaration of not found” is attached to either affidavit. Notwithstanding the confusion inherent

in the last sentence of the foregoing quotat ion, it appears that the affiant—the Texas process

server—requests that e ach of the two affidavits be used with the pertinent return “to confirm that

service” was perfected or that it failed of pe rfection because the person to whom citation was

directed could not be found.

While a return is prima facie eviden ce of the facts recited t herein

, Primate

Construction, Inc.

, 884 S.W.2d at 152, this does not mean that the return is prima facie evidence of

anything about which it is silent. For example, the two returns in question here contain nothing

about the contents of the two lost citations; we cannot presume they conformed to the requirements

of the rule of civil procedure specifying the contents of a valid citation. S ee Tex. R. Civ. P. 99. We

hold accordingly.5

Service through the Secretary of State

.

It appears from the record that the Receiver attempted service of citation through the

Secretary of State of Texas as a means of obtaining personal jurisdiction over Redwood. A copy of

this citation appears in the record together with a verified return made by a Texas process server.

The return records that the citation and a copy of the Receiver’s original petition were received by

the process server on March 15, 2002, and executed on March 18, 2002, by delivery of the

documents to the Secretary of State.

The parties suggest that service through the Secretary of State was authorized by the

following statutory provisions:

Whenever a

. . . foreign limited liability company shall fail to appoint or maintain a

registered agent in this State

. . . then the Secretary of State shall be an agent of such

. . . foreign limited liability com pany upon whom any such process . . . may be

served.

. . . In the event any such process . . . is served on the Secretary of State, the

Secretary of State shall immediately cause one of the copies thereof to be forwarded

by register ed mail, addressed to the . . . foreign limited liability company at its

registered office.

Tex. Rev. Civ. Stat. Ann. arts. 1528n, 2.08B (West 2003).

The secretary of state is an agent for service of process . . . on a nonresident who is

required by statute to designate or maintain a resident agent or engages in business

in this state, but has not designated or maintained a resident agent for service of

process.

Tex. Civ. Prac. & Rem. Code Ann. § 17.044(a)(1) (West 1997).

The secretary of state is an agent for service of process on a nonresident who engages

in business in this state, but does not maintain a regular place of business in this state6

or a designated agent for service of process, in any proceeding that arises out of the

business done in this state and to which the nonresident is a party.

Id . § 17.044(b) (West 1997).

(a) If the secretary of state is served with duplicate copies of process for a

nonresident, the documents shall contain a statement of the nam e and address

of the nonresident’s home or home office and the secretary of state shall

immediately mail a copy of the process to the nonresident at the address

provided.

* * *

(d) The process or notice must be sent by registered mail or by certified mail, return

receipt requested.

Id. § 17.045(a), (d) (West Supp. 2003).

Assuming Redwood was amendable to service of process under the foregoing

statutory provisions, it is essential that the record show affirmatively that the Secretary of State

forwarded a copy of the citation and attached original petition to Red wood after receiving the

documents; so much is expressly required by the statutes themselves. The record is silent on the

question of whet her the Secretary of State forwarded the documents as required. In addition, the

Receiver’s original petition does not allege the essential jurisdictional fact that Redwood failed to

appoint or maintain a registered agent in Texas. See McKanna , 388 S.W.2d at 929-30.

We hold in consequence that the record does not show that the trial court acquired

personal jurisdiction over Redwood by delivery of the pertinent documents to the Secretary of State.1 Rule 11 provides generally that agreements between attorneys are not enforceable unless

in a writing signed and filed with the papers in the cause as part of the record, or unless made in open

court and entered of record. See Tex. R. Civ. P. 11.

7 Constructive General Appearance

.

The Receiver contends the record shows affirmatively that Redwood appeared

generally in the cause by implication, rendering service of process upon Redwood unnecessary.

Redwood’s general appearance resulted, according to the Receiver, from a dis trict court order

extending a temporary restraining order apparently obtained by the Receiver when he initiated the

lawsuit. The trial judge signed the order extending the temporary restraining order on March 15,

2002, the same day the Receiver filed his original petition.

As a basis for the extension of the temporary restraining order, the order recites over

the trial judge’s signature that the extension was based on “good cause,” to wit: the parties had

“agreed to extend the TRO [sic] for at least fourteen (14) days,” as indicated by a Rule 11 agreement

attached to the extension order as an “exhibit.” 1 The attached “exhibit” is a copy of a letter dated,

curiously, March 27, 2002, or twelve days after the trial judge signed on March 15, 2002, the order

extending the temporary restraining order. In any case, the letter is from the Receiver’s attorney to

Redwood’s attorney and recites as follows:

This letter is an agreement under Rule 11 under the Texas Rules of Civil Procedure

concerning the matters set forth below:

(1) The parties agree to extend the terms of the Temporary Restraining Order in this

action for at least

fourteen (14) days and an executed copy of this Rule 11

Agreement may be tendered to the Court at the time

. . . the re quest for an

extension is made;

(2) You will present your clients for depositions at their offices on March 29, 2002,

beginning at 9:00 a.m.;8

(3) The parties agree that by entering into this Rule 11 Agreement, the Defendants

do not waive their rights, if any, to assert a Special Appearance under Rule 120a

of the Texas Rules of Civil Procedure, or any other right to challenge the

jurisdiction of the Texas state district court of this action.

In order to comp ly with Rule 11, this letter needs to be signed by counsel for all

parties. Provided the terms conform to your understanding of our agreement, please

sign in the space in the bottom left hand corner. Please fax me a copy of the signed

letter.

* * *

/s/ Christopher Fuller

I, John Markham, attorney for TRG Marketing, LLC, TRG Administration, LLC, and

the Redwood Group, Inc., agree on behalf of my clients to the terms of this letter.

/s/ John Markham

The general rule in cases like the present is this:

[A] general appearance is entered whenever the defendant invokes the judgment of

the court in any wa y on any question other than that of the court’s jurisdiction,

without being compelled to do so b y previous rulings of the court sustaining the

jurisdiction.

St. Louis & San Francisco R.R. Co. v. Hale

, 109 Tex. 251, 254, 206 S.W. 75, 75 (1918) (emphasis

added). More recently, it was said that a defendant enters a general appearance; (1) when it i nvokes

the judgment of the court on any question other than the court’s jurisdiction; (2) if its act recognizes

that an action is properly pending; or (3) it seeks affirmative action from the court. Therefore, not

all acts re lating to a cause constitute a general appearance; and, when the defendant neither

acknowledges the trial cou rt’s jurisdiction over his person nor seeks court action other than a9

dismissal for want of jurisdiction, he has not co nstructively appeared in the cause. S ee DawsonAustin v. Au stin , 968 S.W.2d 319, 322-23 (Tex. 1998). As the verbs, i nvoke

, recognize

, and seek

suggest, the emphasis is properly upon some affirmative action by the defend ant which impliedly

recognizes the trial court’s personal jurisdiction over the defendant. See Smith v. Amarillo Hosp.

Dist. , 672 S.W.2d 615, 617 (Tex. App.—Amarillo 1984, no writ).

In the present case, the record does not reveal that the attorneys’ Rule 11 agreement

was ever filed in the cause in the ordinary sense implied by Rule 11, that is to say, as an independent

paper in the cause; the agreement bears no file mark. S ee Tex. R. Civ. P. 11. Rather, the agreement

appears in the record only as an “exhibit” t o the trial court’s order extending the temporary

restraining order. While it was thus in a constructive sense “filed” by someone, the record does not

indicate t hat Redwood or its attorney did so. And while the Rule 11 agreement made possible a

court action based thereon, the agreement itself invoked nothing. It was no more than a private

agreement between the attorneys until “tendered to the Court” for an extension and it sought nothing

unless and until it was so tendered. Who made the tender is not, as we have said, revealed by the

record. May it be said that the agreement affirmatively recognized the court’s personal jurisdiction

over Redwood? We believe not. Paragraph 3 of the letter agreement expressly preserved

Redwood’s right to challenge the district court’s jurisdiction by a special appearance under Rule

120a or by any other means. We hold the record does not show a constructive general appearance

by Redwood. S ee Angelou v. African Overseas Union

, 33 S.W.3d 269, 276 (Tex. App.—Houston

[14th Dist.] 2000, no pet.). The decision in E x ito Electronics, Co., Ltd. v. Trejo , 99 S.W.3d 360,

368-71 (Tex. App.—Corpus Christi 2003, pet. filed), is not to the contrary. There, the court10

specifically declined to address the issue of a constructive appearance arising from a Rule 11

agreement that was, as here, expressly conditioned upon a determination of the personal-jurisdiction

issue, in that instance in connection with a special appearance to challenge jurisdiction. S ee Tex.

R. Civ. P. 120; Exito Electron. Co., Ltd. , 99 S.W.3d at 369, n.5.

For the reasons given, we reverse the judgment below for reversible error apparent

on the face of the record and remand the cause to the district court. Redwood shall be presumed to

have entered its appearance to the term of the court at which our mandate shall be filed. S ee Tex.

R. Civ. P. 123.

John E. Powers, Justice

Before Chief Justice Law, Justice Puryear and Powers *

Reversed and Remanded

Filed: August 14, 2003

* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment.

See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).