Tankard-Smith, Inc. General Contractors v. Thursby

• Decision Date: 06 October 1983
• Docket Number: No. B14-83-239CV,INC,TANKARD-SMIT,B14-83-239CV
• Parties: GENERAL CONTRACTORS, Appellant, v. John THURSBY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 473

663 S.W.2d 473

TANKARD-SMITH, INC. GENERAL CONTRACTORS, Appellant, v. John THURSBY, Appellee.

No. B14-83-239CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Oct. 6, 1983.

Rehearing Denied Dec. 15, 1983.

Michael A. Pohl, Gilpin, Maynard, Parsons, Pohl & Bennett, Houston, for appellant.

K. Michael Mayes, Hope & Mayes, Conroe, for appellee.

Before PRESSLER, ROBERTSON and CANNON, JJ.

OPINION

ROBERTSON, Justice.

This is a writ of error proceeding in which appellant attacks the default judgment as void on three grounds: (1) no service of citation, (2) the form of notice used was constitutionally infirm and (3) it was "based upon a void ex parte severance order." In other points appellant asserts evidentiary error which voids the judgment. We affirm.

A somewhat detailed statement of the record before us is necessary. Appellee's original petition, alleging a personal injury cause of action, was filed on February 4, 1982 against Martz Brothers, Inc., National Supply Company, Inc., and Tankard-Smith, Inc., General Contractors. It alleged appellant was "a duly organized corporation and may be served with process of service by serving its registered agent for service, Curtis R. Smith, 1010 Jefferson Street Houston, Texas." Citation was issued for appellant on February 8, 1982 and returned to the clerk's office unexecuted on May 25, 1982. The deputy constable's return indicates the reason for it being returned unexecuted was because the address of 1010 Jefferson Street was a "wrong address." On April 12, 1982, appellee's attorney sent a letter to the district clerk requesting him to prepare a citation for appellant "for the following address: Tankard-Smith, Inc., General Contractors, to be served through the Secretary of State, Austin, Texas." The citation was issued on May 6, 1982 and the return thereon by the Travis County Sheriff shows it was executed on May 17, 1982 "by delivering to Tankard-Smith, Inc., General Contractors by delivering to David A. Dean, Secretary of State of Texas as agent for defendant, in person" the citation and copies of the petition. The certificate of the Secretary of State shows that two copies of the citation and petition were served upon the Secretary of State on May 17, 1982 and that a copy thereof was forwarded by certified mail return receipt requested, on May 21, 1982 addressed to "Tankard-Smith, Inc., General Contractors Registered Agent, Curtis R. Smith, 1010 Jefferson Street, Houston, Tx. in accordance with the provisions of Article 2.11, Texas Business Corporation Act" and that on June 1, 1982, the citation was returned to the Secretary of State's office bearing the notation "insufficient address."

Appellee's motion for interlocutory default judgment, filed on June 21, was granted and signed by the trial court on June 24, 1982. Appellee's motion to sever the cause of action against appellant "from all other causes of action in the above cause," was granted by the trial court on July 15, 1982. A hearing on damages was set for September 7, 1982, following which hearing the trial court signed a final default judgment on September 14, 1982. Following efforts to execute on the judgment, appellant filed a motion to set aside the default judgment "on or about" January 10, 1983. On January 17, 1983, the trial court granted appellee's "Application for Turnover" and other relief and set a hearing for January 24, 1983. On January 28, 1983, the trial court signed an order granting appellant's motion to set aside the default judgment. Subsequently, on April 6, 1983 the supreme court conditionally granted a writ of mandamus and in obedience thereto the trial judge, on May 5, 1983, vacated his order setting aside the default judgment. In the meantime, on March 8, 1983, appellant filed its petition for writ of error which is the subject of this appeal.

In its first point of error, appellant alleges the judgment to be void "because the court never acquired personal jurisdiction over Tankard-Smith since the record affirmatively shows that citation was not served on Tankard-Smith." While in its argument appellant apparently recognizes that to be successful "the face of the record" must reveal error which would invalidate the default judgment, it nevertheless argues that "it was impossible for appellee to validly serve appellant through the Secretary of State because appellee knew when he sent the citation to the Secretary of State the address given was incorrect and would not apprise Tankard-Smith of the suit. Consequently, the Secretary of State's notice could not be valid because an address was used which the appellee knew was incorrect." (While immaterial in this proceeding, appellant repeatedly argues in its brief, without any support in the record, that appellee provided the Secretary of State with the address of 1010 Jefferson Street to which the Secretary sent the citation. Appellee denies the truth of this statement.)

We cannot accept appellant's reasoning. The Texas Business Corporation Act places the duty upon corporations to maintain a registered agent and office in this state and to notify the Secretary of State of any change in either. Section B of Article 2.11 prescribes the procedure to be followed when service cannot be had upon the corporation at its registered office. The record in this case shows such procedure was strictly followed when the Secretary of State "forwarded by registered mail" the citation and petition "addressed to the corporation at its registered office." This is proof "on the face of the record" that appellant was served "in the manner required by the statute." This is all that is required according to the Supreme Court in Whitney v. L & L Realty Corporation, 500 S.W.2d 94 (Tex.1973). The fact that appellant did not receive the citation mailed by the Secretary of State was not the fault of appellee, but was the result of appellant's failure to comply with the provisions of the Business Corporation Act and notify the Secretary of State of its change of address. We hold that the face of the record sufficiently shows strict compliance with the statutory method of service process as authorized by Article 2.11, Texas Business Corporation Act, and overrule appellant's first point of error.

In connection with the above, we must address a procedural matter presented to this court by motion. On May 25, 1983, appellant filed a motion for leave to file supplemental transcript. Subsequent to our granting this motion, appellee filed a motion to strike the supplemental transcript and appellant filed a response thereto. We ordered both motions carried with the case. The material appellant seeks to bring before this court by this supplemental transcript is a "Statement of Change of Registered Office or Registered Agent, or Both, by a Texas Domestic Corporation" filed by appellant in the office of the Secretary of State on August 14, 1981. According to appellant's motion, this document was not discovered until May, 1983 and, when found, was caused to be filed in the office of the Harris County District Clerk on May 24, 1983. As we view the recitations in this document, it appears to be ambiguous and subject to interpretation, but that is of no importance at this time. We express no opinion whether it could afford any relief in some other proceeding at some other time. However, in this proceeding we cannot consider it nor give it any weight for the simple reason that it was not before the trial court prior to final judgment. Obviously this is not a matter appearing "on the face of the record" and we are not authorized to consider it, even in the absence of a motion to strike. TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706 (Tex.App.--Fort Worth 1982, no writ). Relying upon Fields v. Cotten, 383 S.W.2d 84 (Tex.Civ.App.--Beaumont 1964, no writ) appellee maintains this court does not have the power to supplement the record as appellant requested. On the other hand, appellant seeks to distinguish the Fields case because the envelope there in question "was not on file with the district clerk and appears not to have been filed with the trial court." We do not agree that a document filed with the district clerk some eight months following the signing of the final judgment is entitled to consideration on appeal. It was not before the court as a filed instrument prior to judgment nor was it offered in evidence. Under these circumstances we erroneously granted appellant's motion to supplement the record and, accordingly grant appellee's motion to strike the supplemental transcript filed in this court by appellant on June 9, 1983.

In its second point of error, appellant contends the judgment is void "because the form of notice used by appellee did not meet the minimum notice required by the Fourteenth Amendment to the Constitution of the United States and TEX. CONST. art. I, § 19." Under an almost identical fact situation, a similar due process attack was made upon such service on the Secretary of State in TXXN, Inc. v. D/FW Steel Co., supra, and was rejected. That court reasoned, and we agree, that the failure of the method of service was the result of the corporation's own failure to comply with the statutory requirements which are designed to assure it of notice of pending suits. Surely, under these circumstances appellant cannot be heard to complain of a lack of due process. Appellant's second point of error is overruled.

In its third point of error, appellant attacks the judgment as void "because the trial court had no power to render a final judgment since the final judgment was based on a void ex parte severance order." Appellant argues that in multi-defendant negligence cases, Article 2212a, TEX.REV.CIV.STAT.ANN., prevents the judicial determination of final liability of any one defendant before the judicial determination of final liability of all defendants and therefore the severance order was void. The severance order being void, it reasons, renders...