Lynn McGuffy Co., Inc. v. Perfected Indus. Products, Inc.

• Decision Date: 06 December 1984
• Docket Number: No. B14-84-403CV,B14-84-403CV
• Citation: 683 S.W.2d 781
• Parties: LYNN McGUFFY CO., INC., Petitioner, v. PERFECTED INDUSTRIAL PRODUCTS, INC., Respondent. (14th Dist.)
• Court: Texas Court of Appeals

Page 781

683 S.W.2d 781

LYNN McGUFFY CO., INC., Petitioner, v. PERFECTED INDUSTRIAL PRODUCTS, INC., Respondent.

No. B14-84-403CV.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 6, 1984.

Will G. Dickey, Dickey & Crofford, Houston, for petitioner.

Mike Wike, David S. Prince, Houston, for respondent.

Before PRESSLER, ROBERTSON and ELLIS, JJ.

OPINION

ROBERTSON, Justice.

This appeal by writ of error seeks to set aside a default judgment based upon lack of service. Finding a failure to strictly comply with the applicable statutes for substituted service, we reverse and remand.

Petitioner is a Louisiana corporation authorized to transact business in the State of Texas. Pursuant to Tex.Bus.Corp. Act Ann. art. 8.08 (Vernon 1980), it designated Little & Dickey, P.C. as its registered agent for service in Texas. Apparently, the agent moved and neither petitioner nor the agent notified the secretary of state as required by Tex.Bus.Corp. Act Ann. art. 8.09.

On July 25, 1983, respondent initiated a lawsuit against petitioner on a sworn account, and sought service of citation on petitioner's registered agent. After two unsuccessful attempts at service, the citation was returned to the court as "expired paper." Respondent then amended its petition seeking substituted service under Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964) through the secretary of state. The secretary of state attempted service under Tex.Bus.Corp. Act Ann. art. 2.11 (Vernon 1980) by sending a copy of the citation to the registered agent by registered mail, but it was returned bearing the notation "forwarding order expired." Subsequently, default judgment was granted.

While we construe all of petitioner's six points of error to attack the validity of the judgment because of no in personam jurisdiction over it since there was a lack of service of process, we need address only points two and three as they are dispositive. In the second point, petitioner contends the record does not show compliance with Article 2031b, and in the third point, petitioner contends it was not amenable to service under Article 2.11 of the Texas Business Corporation Act.

Respondent sought service under the Texas Long Arm Statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964), and was, therefore, required to strictly comply with the requirements of that statute in order to obtain in personam jurisdiction. Verges v. Lomas & Nettleton Financial Corp., 642 S.W.2d 820, 821 (Tex.App.--Dallas 1982, no writ). The pertinent sections of article 2031b are:

Section 1. When any foreign corporation ... required by any Statute of this State to designate or maintain a resident agent, ... has one or more resident agents and two (2) unsuccessful attempts have been made on different business days to serve process upon each of its designated agents, ... such corporation ... shall be conclusively presumed to have designated the Secretary of State of Texas as their true and lawful attorney upon whom service of process or complaint may be made.

Section 5. Whenever process against a foreign corporation ... is made by delivering to the Secretary of State duplicate copies of such process, the Secretary of State shall require a statement of the name and address of the ... home office of the non-resident. Upon receipt of such process, the Secretary of State shall forthwith forward to the defendant a copy of the process by registered mail, return receipt requested.

Our supreme court in Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95-6 (Tex.1973) stated: "there must be proof in the record that the defendant was, in fact, served in the manner required by statute." (emphasis added). Section 5 of article 2031b directs the Secretary of State to require a statement of the name and address of the home office of the non-resident, and then to forward a copy of the process to the defendant by registered mail, return receipt requested. The record fails to show compliance with the statute and we, therefore, sustain the petitioner's second point of error.

In its third point, petitioner contends the secretary of state was not authorized to serve process on...