### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00091- CV

Silver B & Laviolette, LLC, Appellant

v. GH Contr acting, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-0 9-0 0193 7, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant S i l v er B & L aviolette, L L C, bring s this restric ted appea l to challeng e a

no-answe r defa

ult judgme nt obtained ag ainst it by appellee GH Contracting , I nc., in a brea ch of
contra ct case . Silver B asser ts that the defa

ult judgme nt should be overturne d beca use of improper service of proce ss. I n a single issue, Silver B contends that service on Silver B lacke d strict compliance with the rules of service beca use the addre ss on the return of service does not match the addre ss on th e ci t at i on. Be cause we conclude that Silver B has failed to demonstrate error on the fac e of the rec ord, we aff

irm the trial cour

t’s judgme nt.

F ACTUAL AND P ROCEDURAL BACK GR OUND
I n May 2008, GH Contracting , I nc., enter ed into a contra ct with Silver B to provide labor, materia ls, and equipment for a residential construction projec t. I n J une 2009, GH Contracting , I nc., fi l ed sui t ag ainst Silver B and Way ne L aviolette, it s manag ing member and reg istered ag ent,asser

ting br eac h of contra ct and quantum meruit claims to r ecove r sums it contende d Silver B had failed to pay under the parties’ contra ct and seeking fore closure of its mecha nic’s lien on the
proper ty

. The petition stated that L aviolette could be s er ved individually and in his capa city as Silver B’ s reg istered ag ent at Silver B’ s reg istered office addre ss, 9430 Resear ch Blvd., Suite 180, Eche lon I V, Austin, Travis County , Texas 78759. Citations wer e issued to “Silver B and L aviolette
L L C by serving its reg istered ag ent, Way ne L aviolette” and to L aviolette, both at the reg istered office addre ss cited in the petition.

Although it is not clea

r from the rec ord, it appea rs that at some point, t h e proce ss

serve r communicated with L aviolette about s er v i ce , and L aviolette went to the proce ss serve r’s office to acc ept the citations. The e x ecute d return of service on Silver B states: 1 2

Ex ecute d at 221 E. 9 Street, Austin TX 78701, with i n t h e C o u n ty of Travis, by t h delivering to SI L VER B. A ND L AVI OL ETTE L L C, by delivering to its reg istered ag ent, W AYNE L AVI OL ETTE, in person, a true copy of t he above s pecif ied civil proce ss, having first endorse d on such copy the date of

delivery

.
There is no dispute that L aviolette wa s persona lly serve d at the addr ess stated in the re turn. Both defe ndants failed to answe r, and the trial court enter ed a defa u l t j udg ment
ag ainst Silver B and L aviolette in the amount of $653,214.35, i ncluding principal damag es, prejudg ment interest, and attorney ’s fee s, as well as postjudgment interest, court costs and attorney ’s

I n its briefing , GH Contracting , I nc., states that “L aviolette trave lled to the proce ss serve r’s 1 office to persona lly

retrie ve the c itations.” Sil ver B offe rs no explanation as to whose addr ess the addre ss stated i n the return is or why L aviolette, as reg istered ag ent for Silver B, acc epted service at that location. L aviolette, individually , is not a party to this appeal. 2 2fee s on appea l. The judgme nt also ord er ed fo rec losure of the mecha nic’s lien to satisfy the judgme nt. After the judgme nt was enter ed, R u d y Be lton purcha sed the judgme nt from
GH Contracting , I nc., which filed an Assignme nt of J udg men t an d J udg ment L iens with the trial
court. Silver B subseque ntly filed a timely

notice of r estricted a

ppeal. 3

ANALYSIS
Restr icte d App eal

I n a restric ted appea l, a party must sat i sfy four elements to obtain reve rsal of the underlying judgme nt: (1) A notice of appea l must be b ro u gh t within six months of the date of judgme nt, (2) by a party to the suit, (3) who did n ot participa te at trial and did not timely file a postjudgment motion, reque st for finding s of fa ct and c onclusions of law, or notice of appeal, a nd (4) err or must be appar ent fr o m t he fac e of the rec ord. See Tex. R. App. P. 26.1(c) ; Alexande r

v. Lynda’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004). Her e, the only disputed element is whether

err or exis ts on the fac e of the rec ord that would require reve rsal of the d efa ult judgme nt. For
purposes of a restric ted appea l, the rec ord consists of all paper s filed i n t h e ap peal, including the statement of fac ts. Norman Commc’ns v. Texas Eastman Co. , 955 S.W .2d 269, 270 (Tex. 1997) (per curiam). Howeve r, the rule in Texas “has long been that evidenc e not befor e the trial court prior
to final judgme nt may not be considere d in a [restricted appeal] proce eding .” Gene ral Elec. Co. v. Falcon Ridge Apartments, Joint Venture , 811 S.W .2d 942, 944 (Tex. 1991) (citations omitted).

By virtue of the assig nment, Be lton is the rea l party in interest and has jo i n ed i n 3 GH Contrac ting, Inc.’s Appe llee’s B rief. 3Ret urn of Service
I t is well established that strict compliance with the rules of service must be evident from the fac e of the rec ord for a revie wing court to uphold a defa ult judgme nt. Primate Constr., Inc. v. Sil ver , 884 S.W .2d 151, 152 (Tex. 1994) (citations om itted). I f st rict compli ance is not shown, the servic e of pr ocess is “inva lid and of no eff ect.” Ulvalde Country Club v. Martin Linen Supply
Co. , 690 S.W .2d 884, 885 (Tex. 1985) (per curiam). Fur ther, in contra st to the usual rule that all presumptions will be made in support of a judgme nt, when a defa ult judgme nt is challeng ed, “[t] here

are no presumptions in favor of valid issuance, service , and return of citation

. . . .” Primate Constr. , 884 S.W .2d at 152. I t is the responsibility of the party who obtains the defa ult judgme nt to see that

s er vice of proce ss is proper ly acc omplished, see Tex. R. Civ. P. 99(a) , and the responsibil i t y “exte n d s to seeing that service is proper ly ref lected in the rec ord,” independe nt of rec itals in the defa ult judgment. See Primate Constr. , 884 S.W .2d at 153; Hunt v. Y epez , No. 03-04-00244- CV, 2005 Tex. App. L EXI S 6964, at *7-8 (Te x . App.—Austin Aug . 24, 2005, no pet.) (me m. op.).

Rule 107 of the Texas Rules of Ci v i l P ro ce d ure g overns the return of service and provides in re levant par

t as follows:

The return of the office r or authorized person executing the citation shall be endorse d on or attache d to the same; it sha ll state when the c itation was serve d and the manner of service and be signe d by the office r officia lly o r b y t h e authoriz ed person. The return of

citation by

an author ized person shall be ve rified.

Tex. R. C iv. P. 107. The return of service is not a trivial or mere ly formulaic document. Primate Constr. , 884 S.W .2d at 152. I f any of th e requirements of Rule 107 are not met, the return is fata lly defe ctive and will not support a defa ult judgme nt under direc t attack. See Travieso

4v. Travieso , 649 S.W .2d 818, 820 (Tex. App.—San Antonio 1983, no writ) ; Rowsey v. Ma t eti ch ,

No. 03-08-00727- CV, 2010 Tex. App. L EXI S 6532, at *19 (Tex. App.—Austin Aug

. 12, 2010, no pet.) (mem. op.). Strict compliance , howeve r, does not require “‘obe isance to the minutest detail.’”
W illiams v. W

illiams , 150 S.W .3d 436, 443-44 (Tex. App.—Austin 2004, pet. denied) (quoting Ortiz

v. Avante Villa at Corpus Christ i, Inc. , 926 S.W .2d 608, 613 (Tex. App.—Corpus Christi 1996, writ denied) ; Herbe rt v. Greater Gulf Coast Enters., In c. , 9 1 5 S.W .2d 866, 871 (Tex. App.—Houston [1st Dist.] 1995, no writ)). As long as the re cord a s a whole shows tha t the citation was ser ved on the def endant, se rvice of proc ess will not be invalidated. Id. at 444 (c itations omi tted). Silver B contends that the return of service contains a fata l defe ct requiring reve rsal of the defa

ult judgme nt. Specifica lly , Silver B argues that beca use the addre s s o n t h e return of service does not match the addre ss on the citation, service did not strictly compl y wi t h t h e rules
g overning a valid re turn of citation. We disag ree . Although it is clea r from the face of

the re cord that the addr ess on the re turn of ser vice diff ers f rom the address i n the citation, R ule 107 does not require that the citation and return rec ite the same addre ss. See Tex. R. Civ. P 107. Nor does Rule
106 state that when a party is persona lly serve d, as in this case , service must be at the addre ss listed
in the citation. See Tex. R. Civ. P. 106(a) ; Then W est, Inc./Bait Hous e, Inc. v. Sorrells , No. 05-01-01874- CV, 2002 Tex. App. L EXI S 4596, at *12 (Tex. A pp.—Dallas J une 28, 2002, no pet.) (not de signated for publication).

Moreove r, in this ca s e, i t is clea r that the return strictly complies with the express require ments of Rule 107. The return states that Silver B was serve d by delivery to its reg istered

5ag ent, L aviolette, in person, at the time and date rec ited. Significa ntly , Silver B does not dispute that its reg istered a g ent was pe rsonally serve d at the addr ess stated in the re turn of citation. When fac ed with simil ar fac ts, our sister courts have found no err or on the fac e of the

rec ord. I n Garcia v. Gutierrez , Gar cia contende d that service was defe ctive beca use he

was serve d at a differ ent addre ss from that stated on the citation. 697 S.W .2d 758, 760 (Tex. App.—Corpus Christi 1985, no writ). The court acknow ledg ed the require ment of strict compliance but stated, “[W ]here as here , the return aff irmatively states that it wa s serve d on the named defe n d an t , we h old, he may be serve d wher ever he can be found in the county , and the person executing the citation is not li mited to the addre ss mentioned.” Id.

Silver B attempts to distinguish Garcia on the g round that it involved service on an individual defe ndant ra t h er than on an entity throug h its reg istered ag ent. Howeve r, there is no distinction in the rules between se rvice on individuals and service on entities. See generally Tex.
R. Civ. P. 99-119. Moreove r, other courts have ci t ed Garcia in apply ing the same rea soning to service on reg istered ag ents. See W estcliffe, Inc. v. Bear Creek Constr., Ltd. , 105 S.W .3d 286, 291 (Tex. App.—Dallas 2003, no pet.) (proce ss serve r authoriz ed to serve citation on reg istered ag ent wher ever found, and corr ection of ty pog raphical er ro r in addre ss on citation did not invalidate service ); Then W

est , 2002 Tex. App. L EXI S 4596, at *12-13 (r egi s t ered ag ent may be serve d wher ever found and differ ence betwee n addre ss in petition and addre ss on citation and return did not invalidate per sonal servic e). 4

See also Eagle Commercial Builders, Inc. v. Milam & Co. Painting, Inc. , No. 07-01-0310- 4 CV, 2002 Tex. App. L EXI S 5851 (Tex. App.—Amar illo Aug

. 12, 2002, pet. denied) (not desig nated for publication). I n Eagle Commercial Builders , on fac ts simil ar to those in this case , citation was 6Silver B also urges that we not follow Garcia beca use i t is contra

ry to this Court’s decision in North Carolin a Mutual Life Insurance Co. v. W hitwort h , 124 S.W .3d 714 (Tex. App. —Austin 2003, pet. denied)

. North Carolina Mutual Life , h o we v er , i s distinguishable from the instant case in that, while there was a discrepa ncy betwee n the addre ss on the citation and the addre ss

on the return of service in that case , it was decide d on the issue of a varia nce in the names on the citation and on the return of service , not on the issue of the differ ence i n ad d re s ses
. See id. at 5
718-22. I n fac t, this Court noted that the rec ord showed the reg istered ag ent had moved to the new addre ss wher e citation was serve d befor e addre ssing only the issue of the varia nce in names. Id. at 716. I n addition, althoug h there wa s p er s o n al s ervic e on North C arolina Mutual L ife’s reg istered
ag ent, beca

use of confusion about the ag ent’s status, there was conflicting evidenc e reg arding actua l 6

issued to Eag le’s reg istered ag ent at Eag le’s reg istered office addre ss. Id. at *3. The constable wrote, above the ty

ped addre ss, a

n o the r addre ss, which appar ently was the ag ent’s home addre ss, and serve d the ag ent at the home addre ss. Id. at *3-4. I n holding that strict compliance does not require service of a r eg istered a g ent at the reg istered office addre ss, the court impliedly found that ser

vice on a reg istered ag ent at an addre ss differ ent from that on the citation does not invalidate service

. See id. at *8. The citation was issued to North Carolina Mutual L ife I nsuranc e Company , but the return

5 omitted the word “L ife.” North Carolina Mut. Life Ins. Co. v. W hitwort h , 124 S.W

. 3 d 7 1 4 , 716 (Tex. App. —Austin 2003, pet. denied)

. This Court conclude d that beca use “compa

nies sometimes use slight varia tions on word combinations to name distinct entities

. . . the omission of the word ‘L ife’

. . . [was] signific ant.” Id. at 720. Moreov er , t h er e wa s “no showing in the rec ord that the differ ent names w ere not separate companie s.” Id. Citation was serve d on the reg istered ag ent whose name was o n fi l e i n the secr etar y of 6 state’s office

. Id. at 717. Ho we v er , t h e evidenc e showed that he did “not rec all ever ag ree ing to serve ” as the company ’s reg istered ag ent and, in a letter forwa rding the petition to the company more than one month afte r service , he reque sted that the company appoint another ag ent and stated his intention to remove his name a s the company ’s ag ent. Id. 7rec eipt by the company . See id. at 720. Be cause the issue in North C arolina Mutual Life was a 7 discrepan cy i n names, not addre sses, and beca use there wer e questions reg arding the company ’s
reg istered ag ent and rec eipt of citation, we do not find North C arolina Mutual Life controlling on the fa cts in this case.

Moreove r, ot her courts have found that d i s cre pancie s betwee n the addresses in the citation and in the return do not invalidate service. I n Mya n Managem ent Group, L.L.C

. v. Adam Sparks Family Rev ocable Trust , My an argued that the return was invalid beca use it listed a differ ent suite number for My an’s reg istered ag ent from that stated in the citation. 292 S.W .3d 750, 754 (Tex. App.—Dallas 2009, no pet.). The court disag ree d, noting that Rule 10 7 d o es n o t require that the

re t u rn i n clude an addre ss and stating that “the law is settled that listi ng a differ ent addre ss on th e
return a nd citation will not render se rvice invalid.” Id. (citing Garcia , 697 S.W .2d at 760). Simi larly , in Cotton Patch Cafe, Inc. v. Mc Ca r t y , the return of service stated a differ ent zip code from that on the citation. No

. 0 2 -0 5-082-CV, 2006 Tex. App. L EXI S 1833, at *19-20 (Tex. App.—For

t Worth Mar. 9, 2006, no pet. ) (mem. op.). Cotton Patch argued that the numerica l discrepa

ncy constituted err or on the fac e of the rec ord. Id. at 20-21. The court disag ree d, stating that “bec ause the return of citation complies with Rule 107, beca use Cotton Patch does not

I n forwa rding information to the company , t h e age n t u sed y et another varia nt of the 7 compa n y n am e, and the cer tified mail return rec eipts also contained conflicting varia tions on the name. Id. at 720. I n addition, the return rec eipts did not indicate the name of the company on whose behalf the m ail was rece ived. Id. The court noted t hat t hese varianc es “rais[ed] more uncertainty about the propriety of service ,” id. at 722, and conclude d that “despite indications in the rec ord that [North Car olina Mutual L ife] e ventually rec eived a copy of the citation and petition, the service of citation did not strictly comply with the rules of proce dure

. . .” and the return was defic ient beca use of the discrepa

ncy betwee n the name of the company as rec ited on the citation and as stated on the return. Id. 8cl ai m that it did not rec eive service , and beca use the citation and return show that cit at i o n wa s
actua lly serve d on Cotton Patch’s reg istered ag ent, we hold that the service was not defe ctive

. . . .” Id. at 21-22. Si lv e r B a ls o r elies on Mendoza v. R.O.T., Inc. , No. 04-00-00163- CV, 2000 Tex. A p p . L EXI S 6077 (Tex. App.—San Antonio Sept. 6, 2000, no pet.) (not desig nated for publication ). Mendoza , howeve r, involved discrepa ncies betwee n the addre ss rec ited in the petition for service on

sever al defe ndants and the vary ing addre sses stated in the citations and returns, as well as multipl e

err ors on the returns, and is disti ng uishable on its f acts. I n Mendoza , R.O.T. sued seven corpor ate and individual residents of the Republic of Mexi co and stated in its petition that all seven could be

serve d at t he same addre ss in Mex ico. Id. at *4-5. The rec ord showed that all seven returns were

serve d in a differ ent state from that rec ited in the petition. Id. at *6-8. In addition, the rec ord showed that four wer e also serve d in a di ff er en t s t ate from that stated in the citation, none of the
returns w as sig ned, two had varia nces in the defe ndants’ names, and two stated that they had bee n served i n t he County of Mexi co althoug h Mexi co has no counties. Id. Noting that eac h citation 8
indicated service at a differ ent location from that stated in the petition, the court held that service was

The rec ord al so showed that althoug h the citations wer e purportedly serve d in Mexi co, 8 none wer e translated into Spanish, Mendoza v. R.O.T., Inc. , No. 04-00-00163- CV, 2000 Tex. App. L EXI S 6077, at *5 (Tex. App.—San Antonio Sept. 6, 2000, no pet.) (not desig nated for publication) and that, based on the times noted for rec eipt by the process serve r and service on defe ndants, the proce ss serve r was able to obtai n t h e cit ations in L are do, Texas, fly to Mexi co City , g o throug h customs and immigra tion, trave l from the airport to the defe ndants’ office s, and ser v e them in three hours and 40 minutes. Id. at *5 n.2. I n addition, the rec ord did no t re fl ec t wh et h er the defe ndants rec eived persona l service or actua l notice, see id. at *5, and R.O.T. did not file an appellate brief. Id. at *2. 9invalid. Id. at *8-9. Be cause of the differ ing issues involved and the multipl e err ors on the fac e of 9
the rec ord in Mendoza , we find it inapplicable when, as here , persona l service on the reg istered ag ent is undisputed, and we de cline to follow it.

Silver B’ s sole complaint is that the addre ss on the return differ ed from that on the citation. Th e ru l es o f s ervice, howeve r, do not require that the two addre sses be the same or that service be at the a ddress stated in the citation. See Tex. R. Civ. P. 99, 106, 107. I n fac t, the rules do not even require that the return include an addre ss. See Tex. R. Civ. P. 107. Be cause the return complied with Rule 107, and beca use Silver B does not dispute that it was serve d by persona l service

on its reg istered ag ent, we conclude t hat the return meets the standard of strict compliance , see Primate Constr., Inc. , 884 S.W .2d at 152, an d t h at t h er e is nothing on the fac e of the rec ord that demonstrates de fec tive service . We overrule Silver B’ s single issue.

CONCLUSION Having overr

uled Silv er B’ s only challeng e to the defa ult judgme nt, we aff

irm the district court’s judg ment.

I n its holding, the court states that “[s] ervic e at an incorre ct addre ss is a g round upon which 9 defa ult judgme nt will be set aside,” citing Royal Surplus Lines Insurance Co. v. Samaria Ba p t ist Church , 840 S.W .2d 382, 383 (Tex. 1992). Mendoza v. R

. O. T., Inc. , No. 04-00-00163- CV, 2000 Tex. App. L EXI S 6077, at *8 (Tex. App.—San Antonio Sept. 6, 2000, no pet.) (not desig nated for publication). Howeve r, we find that to be an overly broad rea ding of Royal Surplus Lines , which involved service on the secr etar y of state by cer

tified mail. The supreme court’s narr ow holding in that case was that “[a] ty pog raphic al err or in the forwa rding addre ss t y

p ed by the Secre tary is g rounds to set aside a defa ult judgme nt based on substitut ed ser v i ce.” 840 S.W .2d at 383. There fore , Royal Surplus Lines is inapplicable on the fac ts in the rec ord befor e us, wher e persona l service on th e re gistered ag ent is undisputed. See also Then W est, 2002 Tex. App. L EXI S 4596, at *12-13 (d i ff

er en ce betwee n addre ss in petition and addre ss on citation and return does not invalidate per sonal servic e). 10__________________________________________ J an P. Patterson, J ustice
Be fore J ustices Patterson, Pury ear , and He nson Affir med Filed: Oc tober 12, 2010

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