Opinion filed January 19, 2012



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00015

- CV

__________ BLS DEVELOPMENT , LLC , Appellant

V.

MANUEL LOPEZ , Appellee

On Appeal from the 250th District Court

Travis County, Texas Trial Court Cause No. D

- 1

- GN

- 09

- 001672

O P I N I O N This is a restricted appeal from a no

- answer default judgment entered against BLS Development, LLC

. See T EX

. R. A PP

. P. 30. Because we do not find error on the face of the record, we affirm the default judgment. Manuel Lopez sued BLS for failing to pay for labor and materials provided to BLS for a construction project. Pursuant to the allegations in Lopez’s original petition, the district clerk issued citation on BLS by serving it s registered agent, Blake Byram, at 5910 Bold Ruler Way, Austin, Texas 78746. The process server’s affidavit was filed with the trial court

. In his affidavit, he stated that he attempted t o deliver the citation at the registered address but that the property was vacant. He then attempted to deliver the citation to another address, but the2

registered agent was ―reportedly out of the country for a few weeks.‖ The process server continued to attempt delivery at the second address on three separate occasions within the same week. He was unsuccessful and recommended service upon the s ecretary of s tate

. Another
process server delivered duplicate s of the citation and the original petition to th e citations clerk of the s ecretary of s tate , as stated on the return of service

. Lopez filed a motion for default judgment and attached certification from the s ecretary of

s tate that a copy of the citation and original petition was received on July 2, 2009 , and forwarded to BLS at the registered address on July 7, 2009. The process was returned to the s ecretary of

s tate ―bearing the notation Not Deliverable As Addressed, Unable To Forward.‖ Lopez also filed a certificate of last known address, listing Byr am as the registered agent of BLS and Bold Ruler Way as Byram’s address. The trial court held a hearing and entered a default judgment awarding Lopez actual damages of $ 29,000 , prejudgment interest of $1,372.93 , and attorney’s fees of $ 3,500

. This restri cted appeal followed. In its sole issue , BLS alleges that the trial court erred when it granted the default judgment because the trial court did not have in personam jurisdiction over BLS due to defective service. BLS contends there are multiple errors ap parent on the face of the record that show there was not strict compliance with the rules governing substitute service and return of process. To prevail in a restricted appeal, an appellant must establish that it filed notice of the restricted appeal withi n six months after the judgment was signed, that it was a party to the underlying lawsuit but did not participate in the hearing that resulted in the judgment complained of or timely file any postjudgment motions or requests for findings of fact and conclu sions of law, and that error is apparent on the face of the record. T EX

. R. A PP

. P. 26.1(c), 30 ; Ins. Co. of State of Pa. v. Lejeune , 297 S.W.3d 254, 255 (Tex. 2009); Alexander v. Lynda ’ s Boutique , 134 S.W.3d 845, 848 (Tex. 2004). BLS filed notice of the restricted appeal on November 25, 2009 , within six month s of September 1 , 2009 , the date that the trial court signed the judgment

. In addition, BLS was a party to the underlying lawsuit but did not participate in the default judgme nt hearing or file any postjudgment motions. Thus, the only question here is whether there is error on the face of the record

. When the adequacy of service of citation is challenged in a restricted appeal, there are no presumptions in favor of valid issua nce, service, or return of citation. Primate Constr., Inc. v.3

Silver , 884 S.W.2d 151, 152 (Tex. 1994). Furthermore, it is well established that strict compliance with the rules for service of citation must affirmatively appear on the record if a default judgment is to withstand an attack on appeal

. Lejeune , 297 S.W.3d at 256; Primate Constr. , 884 S.W.2d at 152 ; Wilson v. Dunn , 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co. , 69 0 S.W.2d 884, 885 (Tex. 1985). Virtually any dev iation from the rules regarding proper service of process will result in the setting aside of a default judgment. Mansell v. Ins. Co. of the W. , 203 S.W.3d 499, 501 (Tex. App.

— Houston [14 th Dist.] 2006, no pet.). BLS alleges seven erro rs on the face of the record: (1) Lopez did not plead the requisite statutory requirements to allow service on BLS by service on the s ecretary of s tate ; (2) Lopez failed to file a motion requesting substituted service or obtain a n order by the trial court permitting substituted service; (3) the process server’s return of service contradicts the allegations in p laintiff’s o riginal p etition; (4) the process server failed to exercise reasonable diligence; (5) Lopez had personal knowledge of BLS’s registered ag ent’s residential address, yet failed to notify the process server or the trial court of such address; (6) the return of service is defective; and (7) because there was no valid service, the trial court did not have in personam jurisdiction over BLS. With regard to the first alleged error, BLS argues that Lopez did not plead the requisite statutory requirements to allow service on BLS by service on the s ecretary of s tate . BLS also argues that the process server’s return of service is defective and con tradicts the allegations in Lopez’s petition because the petition did not allege that BLS could be served through the

s ecretary of s tate

. Substitute service on the s ecretary of s tate is governed by S ection 5.251 of the Texas Business Organizations Code. Section 5 .251 provides : ―The s ecretary of s tate is an agent of an entity for purposes of service of process, notice, or demand on the entity if . . . the registered agent of the entity cannot with reasonable diligence be found at the registered office of the entity .‖ T EX

. B US

. O RGS

. C ODE A NN

. § 5 .251(1)(B) (West 2011)

. 1 ―Before a filing entity resorts to substituted service under the applicable statute . . . the record must show that the . . . registered agent could not with reasonable diligence be found at the registered office.‖ Collective Interests, Inc. v. Reagan Nat ’l Adver

. , No. 03

- 08

- 00283

- CV, 2010 WL 2977458, *3

1 Formerly T EX

. B US

. C ORP

. A CT art. 2.11(B) (2005)

.4

(Tex. App.

— Austin July 29, 2010, no pet. ) (mem. o p.) (discussing former T EX

. B US

. C ORP

. A CT art. 2.11(B)). ―Those allegations are not required to be included in the petition.‖ Id

. Here, Lopez alleged in his petition that ―Defendant, BLS Development, L.L.C., is a Texas limited liability company, which may be served by delivering the citation, with a copy of the petition attached, to its registered agent, Blake Byram, 5910 Bold Ruler Way, Austin, Travis County, Texas 78746.‖ Lopez was not required to plead that the registered agent could not be found t hrough reasonable diligence or that substituted service could be made on BLS by service on the s ecretary of s tate

. As long as the record as a whole shows that the registered agent could
not with reasonable diligence be found at the registered office , S ect io n 5.251 (1)(B) permits service on the s ecretary of s tate

. See , e.g. , Ingram Indus

. , Inc. v. U.S. Bolt Mfg., Inc. , 121 S.W.3d 31, 34 (Tex. App.

— Houston [1 st Dist.] 2003, no pet.) (―The record as a whole . . . may be considered to determine whether the reasonable

- diligence requirement is satisfied.‖) (citing G.F.S. Ventures, Inc. v. Harris , 934 S.W.2d 813, 816 (Tex. App.

— Houston [1 st Dist.] 1996, no writ)) ; Maddison Dual Fuels, Inc . v. S

. Union Co. , 944 S.W.2d 735, 738 (Tex. App.

— Corpus Christi 1997, no writ) (―[W]e may look to the entire record for evidence of diligence.‖)

. BLS argues that the process server failed to exercise reasonable diligence because he did
not inquire a s to when the registered agent would return from being out of the country or attempt to serve the agent at a third address where Lopez allegedly knew BLS could be found

. However, the process server was not required to attempt to find the registered agent at an y other address than the address for the registered office

. See Adver. Displays, Inc. v. Cote , 732 S.W.2d 360, 363 (Tex. App.

— Houston [14 th Dist.] 1987, no writ) (knowledge of an address other than that of registered office creates no presumption that app ellant was amenable to service at that address) (citing TXXN, Inc. v. D/FW Steel Co. , 632 S.W.2d 706, 708 (Tex. App.

— Fort Worth 1982, no writ)). Section 5.251 provides that substituted service on the s ecretary of s tate is permitted if ―the registered agen t of the entity cannot with reasonable diligence be found at the registered office of the entity .‖ Section 5.251(1)(B) (emphasis added). The statute does not require that an attempt be made to find the registered agent at any other place than at the enti ty’s registered office. See id

. Therefore, t he 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

. The only relevant attem pt of service , for purposes of determining5

reasonable diligence, is the process server’s sole attempt at service on the registered agent at the registered office

. Here, the process server stated in his affidavit that he attempted service at Bold Rule r Way, the registered agent’s address, but that the property was vacant. Because the property was vacant, a ny other attempts at the registered address would have been futile. See G.F.S. Ventures , 934 S.W.2d at 816

– 17 (holding that , because the actual res idents of the registered agent’s address had never heard of the registered agent, any further attempts to serve the registered agent would be futile ). This one attempt is sufficient to show that the registered agent could not be found with reasonable diligence at the registered office. See Liberty Label Co. 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 the process server’s one attempt to serve registered agen t at vacant address constituted reasonable diligence) ; Ingram Indus. , 121 S.W.3d at 34 (holding one attempt to serve entity constituted reasonable diligence when the registered agent no longer occupied the registered address and the people occupying the ad dress had been living there for ten years)

. In addition, BLS alleges that Lopez failed to file a motion requesting substituted service or obtain a n order by the trial court permitting substituted service under Rules 106(b) and 107 of the Texas Rules of C ivil Procedure

. BLS cites to Nat ional Multiple Sclerosis Soc iet y

— N orth
Tex as Chapter v. Rice , 29 S.W.3d 174 (Tex. App.

— Eastland 2000, no pet.), to support its contention that Lopez was required to file a motion for substituted service. In Nat ional Multip le Sclerosis Societ

y , we said that , in those cases governed by Rule 106 , the record must contain a motion, affidavit, and order complying with the rules in order to withstand a challenge to the default judgment. 29 S.W.3d at 177

– 78. However, we did not reach the Rule 106(b) question because we found that there was no evidence of reasonable diligence in the record to support service on the s ecretary of s tate under former T EX

. R EV

. C IV

. S TAT

. a rt . 1396

- 2.07 (1997)

. Id. Here, the record does show reasonab le diligence , and we must decide whether Rules 106 (b) and 107 apply when a plaintiff seeks substitute service on an entity through the s ecretary of s tate as in this case

. S ubstituted service through the s ecretary of s tate is governed by Section 5.251(1)( B), not Rules 106(b) and 107. Section 5.251 is an independent statute that provides for substituted service on the s ecretary of s tate when reasonable diligence is shown. See Houston’s Wild West,6

Inc. v. Salinas , 690 S.W.2d 30, 32 (Tex. App.

— Houston [14 th Dist.] 1985, writ ref’d n.r.e.) (holding former T EX

. B US

. C ORP

. A CT art. 2.11(B) and Rule 106 are not interdependent methods of service; A rticle 2.11 is an independent statute) . Therefore, Lopez was not required to file a Rule 106(b) motion requesting su bstituted service, nor was the process server required to effectuate a return in compliance with a court order permitting substitute service under Rule 107. See id. BLS also argues that the trial court erred when it granted the default judgment because
t he record establishes that the certificate of last known address filed by Lopez in support of its default judgment was false. Specifically, BLS claims that Lopez had personal knowledge of BLS’s registered agent’s residential address, yet failed to notify the process server or the trial court of such address. Even if this is true, BLS concedes that this information is not in the record, but could be shown on remand. However, error must be apparent on the face of the record in order to prevail in a restric ted appeal. Alexander , 134 S.W.3d at 848. There is nothing in the clerk’s record that supports this allegation. Thus, the alleged error is not apparent on the face of the record. We do not find any of BLS’s seven errors to be present on the face of the record. Lopez satisfied the requirements under Section 5.251 (1)(B) for substituted service on the s ecretary of

s tate. In addition, t he certificate from the s ecretary of s tate conclusively establishes that process was served. See Campus Invs., Inc. v. Cullever , 144 S.W.3d 464, 466 (Tex. 2004). Therefore, the trial court did have in personam jurisdiction over BLS. The fact that BLS did not actually receive service ―was the result of [BLS]’s own failure to comply with the statutory requirement s which we re designed to assure it of notice of pending suits, not of any failu r e on the part of [Lopez].‖ TXXN

, 632 S.W.2d at 709. We overrule BLS’s sole issue. The judgment of the trial court is affirmed.

JIM R. WRIGHT CHIEF JUSTICE January 19 , 2012 Panel consists of: Wright, C.J., McCall, J., and Kalenak, J.