NBS Southern, Inc. v. Mail Box, Inc.

• Decision Date: 10 May 1989
• Docket Number: No. 05-88-00867-CV,05-88-00867-CV
• Citation: 772 S.W.2d 470
• Parties: NBS SOUTHERN, INC., Appellant, v. The MAIL BOX, INC., Appellee.
• Court: Texas Court of Appeals

Page 470

772 S.W.2d 470

NBS SOUTHERN, INC., Appellant, v. The MAIL BOX, INC., Appellee.

No. 05-88-00867-CV.

Court of Appeals of Texas Dallas.

May 10, 1989.

Rehearing Denied June 21, 1989.

Stephen A. Ragucci, Dallas, for appellant.

Todd E. Marshall, Dallas, for appellee.

Before ROWE, STEWART and OVARD, JJ.

ROWE, Justice.

Appellee, The Mail Box, Inc., brought this third party action against appellant, NBS Southern, Inc., to recover for breach of warranty. The trial court granted a default judgment in favor of Mail Box for $56,907.50 actual damages, $6,000.00 attorney fees, and prejudgment interest at the rate of six percent per annum. In its first point of error, NBS complains that the trial court erred in granting a default judgment in the absence of proof that it had personal jurisdiction over NBS. For the reasons discussed below, we sustain this point of error and reverse the trial court's judgment.

In its third party petition, Mail Box alleged that NBS could be served "by serving its registered agent, Prentice-Hall Corporation System, at 807 Brazos, Suite 102, Austin, Texas 78701." Citation was issued accordingly. The officer's return certifies that citation was executed by delivering the citation and a copy of the petition to NBS "by delivering to its registered agent for service, Prentice-Hall Corporation System, Inc., by delivering to its Manager, Richard J. Milos." The record of the default judgment hearing contains no proof independent of the allegations in the petition, recitals in the citation, and statements in the officer's return that Prentice-Hall Corporation System was NBS's registered agent for service of process.

NBS contends that Mail Box had the burden to affirmatively prove that Prentice-Hall was in fact the registered agent of NBS by evidence independent of the allegations in the petition, recitals in the citation, and statements in the officer's return. In the absence of such proof, NBS alleges that the trial court erred in granting default judgment. In reply, Mail Box argues that NBS had the burden of proving that Prentice-Hall was not its registered agent. Alternatively, Mail Box maintains that the petition, citation, and officer's return are sufficient in themselves to prove that Prentice-Hall was NBS's registered agent and that in any event NBS admitted this fact at the hearing on its motion for new trial.

We note that Texas courts addressing this issue have reached differing results. Several courts require an affirmative showing that the person served was in fact the defendant's agent for service of process. Bronze & Beautiful v. Mahone, 750 S.W.2d 28, 29 (Tex.App.--Texarkana 1988, no writ); Encore Builders v. Wells, 636 S.W.2d 722, 723 (Tex.App.--Corpus Christi 1982, no writ); Hanover Modular Homes v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.--Corpus Christi 1972, no writ); White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex.Civ.App.--Dallas 1963, no writ); Texaco, Inc. v. McEwen, 356 S.W.2d 809, 814 (Tex.Civ.App.--Dallas 1962, writ ref'd n.r.e.); see Jacksboro Nat'l Bank v. Signal Oil & Gas Co., 482 S.W.2d 339, 341 (Tex.Civ.App.--Tyler 1972, no writ); Mobile Pipe-Dillingham v. Stark, 468 S.W.2d 552, 554 (Tex.Civ.App.--Beaumont 1971, no writ). Some of these courts expressly require proof independent of the allegations in the petition, recitals in the citation, and statements in the officer's return. Hanover Modular Homes, 476 S.W.2d at 99; Texaco, 356 S.W.2d at 814. Other courts have held that the petition, citation, and return are sufficient to show that the individual served was the registered agent of the corporate defendant. National Medical Enters. v. Wedman, 676 S.W.2d 712, 715-16 (Tex.App.--El Paso 1984, no writ); Hillson Steel Prod., Inc. v. Wirth Ltd., 538 S.W.2d 162, 164 (Tex.Civ.App.--Houston [1st Dist.] 1976, no writ). Still other courts place the burden instead upon the defendant to prove that the person served was not its agent. Southland Paint Co. v. Thousand Oaks Racket Club, 724 S.W.2d 809, 810 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.); Employer's Reinsurance Corp. v. Brock, 74 S.W.2d 435, 438 (Tex.Civ.App.--Eastland 1934, writ dism'd).

We think that the better rule is to require an affirmative showing that the person served was in fact the defendant's agent for service of process. On direct appeal from a default judgment, the record must affirmatively show that the trial court had personal jurisdiction over the defendant. Whitney v. L & L Realty Corp., 500 S.W.2d 94, 97 (Tex.1973); City of Mesquite v. Bellingar, 701 S.W.2d 335, 336 (Tex.App.--Dallas 1985, no writ). Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the court's jurisdiction; and (2) the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex.1985). The record must, therefore, show an appearance by NBS or due service of citation on NBS. See Flynt v. City of Kingsville, 125 Tex. 510, 511, 82 S.W.2d 934, 935 (Comm'n App.1935, opinion adopted); National Medical Enters, 676 S.W.2d at 714. Since NBS is a foreign corporation, due service requires that the citation be delivered personally to its president, any vice president, or its registered agent for service of process. See TEX.BUS.CORP.ACT ANN. art. 8.10(A) (Vernon 1980). We conclude that due service of process on NBS requires a showing that the person actually served was a proper party to receive service for NBS.

Turning to the question of what proof is required, we conclude that such proof must be independent of the allegations in the petition, recitals in the citation, and statements in the officer's return. See Texaco, 356 S.W.2d at 814. The law is well-settled that a party's pleadings are not evidence of the facts alleged therein. E.g., Kroger Co. v. Warren, 410 S.W.2d 194, 196 (Tex.Civ.App.--Tyler 1966, no writ); Hass v. Aetna Ins. Co., 391 S.W.2d 756, 757 (Tex.Civ.App.--Fort Worth 1965, writ ref'd n.r.e.). Although a nonanswering defendant is presumed to have admitted all factual allegations set out in the petition, ¹ this presumption does not apply to jurisdictional allegations. See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). Otherwise, unscrupulous litigants could intentionally allege that a completely disinterested party was the registered agent of a foreign corporation. If the presumption applied and the corporation suffered a default, we would be forced to presume that the corporation had admitted the agency of the disinterested party. Such a...