Reversed and Remanded and Memorandum Opinion filed January 24, 2013.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00364

- CV

ATR I UM MEDICAL CENTER, L .P., Appellant

V.
LANGE MECHANICAL SER VICES, L.P., Appellee

On Appeal from the County Court at Law No

. 2

F ort Bend County, Texas Trial Court Cause No. 11

- CCV

- 045978

M E M O R A N D U M O P I N I O N
In this restricted appeal, appellant, Atrium Medical Center, L.P. (“Atrium”)
, seeks reversal of a default judgment in favor of appellee, Lange Mechanical Services, L.P. (“Lange” ). In two issues, Atrium contends (1) the trial court erred by rendering a default judgment because Atrium was not properly served with process, and (2) alternatively, the evidence is legally and factually insufficient to2

support the damages and attorney’ s fees awarded by the trial court. We reverse
and remand. 1

I. B ACKGROUND Lange sued Atrium for various causes of action based on Atrium’s alleged failure to pay for goods and services provided by Lange for Atrium’s real property

. In its petition, Lange alleged Atrium is a Texas limited pa rtnership and requested
service on Atrium via “ its registered agent, Sandeep N. Patel

. . . . ” A citation was issued for service on this agent as requested in the petition. However, the return of
service reflects the citation was delivered to “[ ATRIUM ] BY SERVING ITS C.E.O., SCOTT POSTON. ”
Atrium did not answer the petition. Lange moved for default judgment and
attached evidence allegedly support ing its requested damages and attorney’s fees. Atrium did not appear at the hearing on the motion for default judgment . On November 30, 2011, the trial court signed a final default judgment awarding Lange $ 29,305.98 as liquidated damages, $293 in pre

- judgment interest, $5,000 in attorney’s fees
, and p ost

-

judgment interest. A trium filed this restricted appeal.

II. A NALYSIS To prevail on a restricted appeal, the appellant must establish (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, ( 3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post

- judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Alexander v. Lynda’s Boutique , 134 S.W.3d

1 Lange filed a notice in our court, stating that it did not intend to file an appellate brief.3

845, 848 (Tex. 2004) ; see Tex. R. App. P. 26.1(c), 30

. In the present case, the first three elements are clearly satisfied, and we will focus on the fourth element.

Atrium contends that error in granting a default judgment i s apparent on the
face of the record because the return of service reflect s Atrium was not properly
served. We agree. 2
When a default judgment is attacked by restricted appeal
, “ ‘ [t]here are no presumptions in favor of valid issuance, service, and return of citation. ’ ” Fidelity & Guar. Ins. Co. v. Drewery Const r . Co. , Inc. , 186 S.W.3d 571, 573 (Tex. 2006) ; ( quo ting Primate Constr., Inc. v. Silver , 884 S.W.2d 151, 152 (Tex. 1994) (per curiam)
, which discuss ed rules applicable to writ of error, the predecessor to a restricted appeal); see Uvalde Country Club v. Martin Linen Supply Co. , 690 S.W.2d 884, 885 (Tex. 1985) (per curiam) . S trict compliance with the rules for proper service must affirmatively appear on the record in order for a default judgment to withsta nd direct attack. Primate Constr. , 884 S.W.2d at 152; see Uvalde Country Club , 690 S.W.2d at 885.
The registered agent and each general partner of a limited partnership are its agents for s ervice of process
, subject to certain exceptions for service on the
S ecretary of State, which are inapplicable in the present case. See Tex. Bus. Orgs. Code Ann. § § 5.201(b)(1)
, 5.251, 5.255(2) ( West 2012)

. 3 As we have mentioned
,

2 Relative to its first issue, Atrium also contends there is error on the face of the record because the language on the citation is defective. We need not consider this contention because we agree the record reflects Atrium was not properly served.

3 Atrium also cites section 1.08 of the former T exas Revised Limited Partnership Act, which provided that the registered agent and each general partner of a limited partnership are its agents for service of process , subject to exception s for service on the Secretary of State. See Act of April 14, 1987 , 70th Leg., R.S., ch. 49, § 1, 1987 Tex. Gen. Laws 92

– 121 (expired Jan. 1, 2010) . The Texas Revised Limited Partnership Act expired by its own terms on January 1, 2010,4

Lange pleaded , and citation was issued, for service on Sandeep N. Patel , as registered agent of Atrium, but the return shows this registered a gent was not served. Rather, the return demonstrates citation was delivered to “[ ATRIUM ] BY SERVING ITS C.E.O., SCOTT POSTON. ” Th us, the a ctual service failed to comport with Lange’s pleading and the issue d citation . Moreover, Lange did not plead, and there is no indication in the record, Scott Poston was a registered agent or general partner of Atrium.

B ecause the record fails to affirmatively show compliance with applicable rules governing service, the t rial court erred by granting default judgment against
Atrium. See Uvalde Country Club , 690 S.W.2d at 88 4

– 8 5 (reversing, in direct attack, default judgment against company whe re plaintiff pleaded in petition that registered agent for service wa s “Henry Bun ting, Jr.” but citation and return
reflect ed service on “Henry Bunting” because record did not show “Henry Bunting” was authorized to receive service or was connected with defendant ); 14850 Quorum Assoc. Ltd. v. Moore Bus. Forms, Inc. , 7 S.W.3d 166, 168

– 69 (Tex. App.

— Dallas 1998, no pet.) (r eversing , in direct attack, default judgment because record failed to affirmatively show compliance with requirements for service where plaintiff served partnership via Secretary of State but record did not show partners hip was amenable to alternative service via Secretary of State) ; Premier Coin Galleries, Inc. v. Grinage , N o . 04

- 08

- 00863

- CV , 2009 WL 1804112 , at *1

– 2 (Tex. App.

— San Antonio Jun e 24, 2009 , no pet. ) (mem. op.) ( r eversing, in direct attack, default judgment against corporation where plaintiff pleaded that named individual was registered agent and citation was directed to this individual, but return receipt for service by certified mail was signed by different person and

and the present suit was filed in 2011. Nonetheless, the law is the same regardless of whic h provision governs this case.5

record did not affirmatively show he wa s agent for defendant pursuant to section 5.255 of Business Organizations Act).
Accordingly, we sustain Atrium’s first issue. 4 We reverse the trial court’s judgment and remand for further proceedings consistent with t his opinion.

/s/ John Donovan Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan

.

4 In light of ou r disposition of Atrium’s first issue, we need not consider its second issue, contending the evidence is legally and factually insufficient to support the damages and attorney’s fees awarded by the tria l court.