World Environmental, LLC v. Wolfpack Environmental, LLC

Opinion issued March 12, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00561-CV __________ WORLD ENVIRONMENTAL, L.L.C., Appellant V. WOLFPACK ENVIRONMENTAL, L.L.C., Appellee On Appeal from the County Court at Law No. 2 Montgomery County, Texas Trial Court Cause No. 07-10-10573 MEMORANDUM OPINION In this restricted appeal, appellant, World Environmental, L.L.C. ("World"), challenges the trial court's default judgment entered in favor of appellee, Wolfpack Environmental, L.L.C. ("Wolfpack"), in Wolfpack's suit against World for suit on account, breach of contract, and quantum meruit. In two points of error, World contends that it was not properly served with process and that the default judgment rendered by the trial court is void and should be set aside. We reverse and remand. Factual and Procedural Background In its petition, filed on October 17, 2007, Wolfpack alleged that it had entered into a consulting agreement with World to provide consulting services and World owed Wolfpack outstanding amounts of $8,235.55. Wolfpack asserted claims for suit on account, breach of contract, and quantum meruit, and Wolfpack also sought recovery of attorney's fees. On December 31, 2007, Wolfpack filed a motion for no-answer default judgment, in which Wolfpack alleged that, on November 16, 2007, it had served World with citation and a copy of its petition by personal service to World's principal, Charles E. Hall, "through his assistant," at 230 Spring Hill Drive, Suite 340, Spring, Texas 77386. Wolfpack further alleged that citation and proof of service had been on file with the court clerk for at least ten days, World's deadline to answer the lawsuit had passed on December 10, 2007, and World's last known address (as set forth in the attached certificate of last known address) was 230 Spring Hills Drive, Suite 340, Spring, Texas 77386. Wolfpack sought a default judgment on its claims for suit on account and breach of contract in the amount of $8,235.55. Wolfpack also attached an affidavit in support of its request for attorney's fees. On December 28, 2007, the trial court granted Wolfpack's motion for default judgment and awarded Wolfpack the amounts requested plus attorney's fees. World filed a restricted appeal on June 18, 2008. Restricted Appeal In two points of error, World argues that the trial court erred in entering a default judgment against World because it was not properly served with process. World, thus, contends that the default judgment is void and should be set aside. World asserts that the record does not contain a return showing service of citation. It specifically argues that any alleged service was defective because, even as stated in Wolfpack's motion for default judgment, Wolfpack did not personally serve World's principal or manager Hall with process, but instead served Hall's personal assistant. World further argues that because it was not properly served with process, the trial court never obtained personal jurisdiction over it and the default judgment should be set aside. To attack a judgment by a restricted appeal, the appeal must be filed (1) within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who, either in person or through counsel, did not participate at trial; and (4) the error must be apparent from the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.--Houston [1st Dist.] 2006, no pet.). The only issue in this appeal is whether there is error apparent on the face of the record. The face of the record consists of all the papers on file in the appeal, including any reporter's record. Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.--Houston [14th Dist.] 2001, no pet.). A default judgment cannot stand unless the record shows strict compliance with the rules of civil procedure governing issuance, service, and return of citation. See Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Proper citation and return of service are required to establish personal jurisdiction over a defendant. TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318-19 (Tex. App.--Austin 2002, no pet.). There are no presumptions in favor of valid issuance, service, and return of citation in the face of a restricted appeal of a default judgment. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.--Dallas 2008, no pet.). Defective service is considered error on the face of the record. Scoggins, III v. Best Indus. Unif. Supp. Co., 899 S.W.2d 276, 278 (Tex. App.--Houston [14th Dist.] 1995, no writ). Here, although the parties primarily dispute whether service on Hall's personal assistant constituted effective service on World, the record does not even contain a copy of the return of service executed on Hall's personal assistant. Wolfpack's motion for default judgment references a citation and proof of service on Hall's personal assistant, but the alleged citation and proof of service were not attached to the motion, and they do not appear anywhere else in the record. In an apparent effort to cure the record deficiencies, Wolfpack attaches to its appellee's brief a copy of what it alleges to be a copy of the "officer's return" of service on Hall's personal assistant, who Wolfpack never even identifies by name. However, documents that appear solely in the appendix of a brief are not part of the record and are generally not considered on appeal. See Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Moreover, even if we were to consider the document attached to Wolfpack's brief, the document is not, as represented by Wolfpack, a copy of the officer's return of citation on Hall's personal assistant. Rather, it is merely a copy of the citation issued by the district clerk, and it is directed to World, "by serving its principal Charles E. Hall." There is no mention of Hall's personal assistant in the citation. More significantly, the citation is not a return, and nothing else in the record supports a finding that World was served with the citation. The citation provides absolutely no evidence that Wolfpack, Charles Hall, or even Charles Hall's personal assistant, was ever served in this lawsuit. Finally, we note that article 2.08A of the Texas Limited Liability Company Act provides that "[t]he managers, if any, and the registered agent shall be agents of a limited liability company or foreign limited liability company upon whom any process, notice, or demand required or permitted by law to be served upon the limited liability company or foreign limited liability company may be served." Tex. Rev. Civ. Stat. Ann. art. 1528n, 2.08A (Vernon Supp. 2008). The article does not provide for effective service of a limited liability company by serving a manager or registered agent's personal assistant. There is also no allegation in the record that service upon the personal assistant of Charles Hall, for which there is no record support, was effective because the personal assistant was also a manager or registered agent for World. Thus, even if we reached the issue, we would conclude that service upon Hall's unidentified personal assistant, as alleged by Wolfpack, did not constitute effective service on World. See id. In sum, the record does not contain any evidence that World was served in the underlying suit. Accordingly, the default judgment must be reversed. (1) We sustain World's first and second points of error. Conclusion We reverse the default judgment and remand for further proceedings. Terry Jennings Justice Panel consists of Justices Jennings, Keyes, and Higley. 1. Wolfpack also argues that service was proper under section 17.021 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 17.021 (Vernon Supp. 2008). Because the record contains no proof of service, we need not directly consider this argument. However, we do note that section 17.021 expressly applies to actions against individuals, partnerships, or unincorporated associations. See id. Wolfpack has not cited any authority or provided any explanation as to how section 17.021 has any application to a limited liability company.