Onyx Tv v. Tv Strategy Group, LLC
Onyx Tv v. Tv Strategy Group, LLC
Opinion of the Court
OPINION
Opinion by Justice
Onyx Television appeals a default judgment granted in favor of T.V. Strategy Group (“TVSG”). TVSG sued Onyx on a sworn account, on breach of contract, and for quantum meruit. Onyx contends (1) the trial court did not have jurisdiction to enter a default judgment against Onyx because TVSG’s petition did not plead sufficient facts to invoke substituted service and the Whitney certificate
On March 25, 1998, TVSG filed an original petition in the County Court at Law against Onyx alleging that (1) Onyx Corporation was a corporation organized and existing under the laws of Germany, with its principal place of business in Dortmund, Germany, (2) Onyx does not maintain a regular place of business in Texas or a registered agent for service of process, (3) Onyx entered into a contract with TVSG, a Texas resident, and that TVSG performed the contract in Texas in part, and (4) the lawsuit arose out of business done in Texas and to which Onxy was a party.
In a certified letter dated April 1, 1998, TVSG enclosed two copies of the original citation and the original petition and requested the Secretary of State send the process to Onyx at its home office, which was listed in the certified letter pursuant to the Texas long-arm statute.
A restricted appeal
In order to sustain a default judgment which is under direct attack, it is essential that there be strict compliance with the rules relating to the issuance of citation, the manner and mode of service, and the return of process.
There are no presumptions favoring valid issuance, service, and return of citation.
The difficult issue in this case is whether the trial court erred in entering a default judgment, because the record does not reflect that the citation was on file at the time it was entered. Rule 107 of the Texas Rules of Civil Procedure provides that no default judgment can be granted in any cause until the citation has been on file
The Harris case suggests that the Secretary of State’s certificate satisfies the requirement that the citation be on file for ten days prior to the rendition of the default judgment and the requirement of proper service of process. The certificate in the present case recites and certifies that two copies of the citation and petition in the styled cause were received by the Secretary of State’s office on a given date and that a copy was forwarded to the defendant by registered mail, return receipt requested to the address designated in this certificate.
Rule 99 provides the form and notice necessary for a citation. The citation shall (I) be styled “The State of Texas,” (2) be signed by the clerk under seal of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (II) contain address of the clerk, and (12) shall notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to the plaintiffs petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirements of Subsections 10 and 12 shall be in the form set forth in Section c of the rule.
The Secretary of State’s certificate of process, however, does not place on file the information contained in the citation sent to Onyx. We hold that the fifing of the Secretary of State’s certificate does not comply with the requirement of Rule 107 that the citation be on file.
In the present case, TVSG suggests its intention to follow the proper procedure in its cover letter to the Secretary of State sending the two copies of the original citation and the original petition for forwarding to the defendant.
The letter stated as follows:
We have retained the original citations in our file. After the signed green receipt cards have been returned to our office, we will then complete the officer’s certificate of service portion that is set forth on the reverse side of the citations, and file these originals with the District Court.
The record does not reflect that the original citation was ever filed with the district court.
Because the citation was not on file.for ten days as required by Rule 107, TVSG did not meet its burden of showing strict compliance with Rule 107. For this reason, an error is apparent on the face of the record, and the default judgment in this case must be set aside. We need not address Onyx’s other contentions. This point of error is sustained.
The judgment is reversed and the cause is remanded to the trial court.
. A Whitney certificate is a certificate the Secretary of State issues when it has received two copies of the petition and citation and has forwarded a copy of each to the nonresident defendant in compliance with Tex. Civ. Prac. & Rem.Code Ann. § 17.045(a) (Vernon 1997).
. Tex.R.App. P. 30. (formerly Rule 45).
. See generally Tex. Civ. Prac. & Rem.Code Ann. § 17.041-17.045 (Vernon 1997) (Texas long-arm statute).
. Tex. Civ. Prac. & Rem.Code Ann. § 17.045(a) (Vernon 1997).
. TexR.App. P. 30. Restricted appeals replace writ of error appeals to the courts of appeals. Statutes pertaining to writ of error appeals to the courts of appeals apply equally to restricted appeals. Id.
. World Distributors v. Knox, 968 S.W.2d 474, 477 (Tex.App.-El Paso 1998, no pet.) (citing Texas Dep't of Public Safety v. Panngasiri, 945 S.W.2d 276, 277 (Tex.App.-El Paso 1997, no writ); Girdley v. Southwestern Bell Yellow Pages, Inc., 869 S.W.2d 409, 411 (Tex.App.-El Paso 1993, writ denied)).
. Id.
. Knox, 968 S.W.2d at 477 (citing Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985); Panngasiri, 945 S.W.2d at 277; Whiskeman v. Lama, 847 S.W.2d 327, 328 (Tex.App.-El Paso 1993, no writ)).
. Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591, 592 (Tex.App.-Dallas 1989, no writ).
. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Whiskeman, 847 S.W.2d at 329; Bannigan, 766 S.W.2d at 592.
. TJvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); Whiskeman, 847 S.W.2d at 329.
. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Uvalde Country Club, 690 S.W.2d at 885; Whiskeman, 847 S.W.2d at 329.
. Tex Civ. Prac. & Rem.Code Ann. § 17.045(a); Whiskeman, 847 S.W.2d at 329.
. Knox, 968 S.W.2d at 477 (citing McKanna, 388 S.W.2d at 928; Mayfield v. Dean Witter Fin. Servs., Inc., 894 S.W.2d 502, 504 (Tex. App.-Austin 1995, writ denied)).
. Tex.R. Civ. P. 107.
. Tex.Rev.Civ. Stat. Ann. art.2031b (Vernon 1964). This was a precurser to the present long arm statute cited above.
. Capitol Brick, Inc., 722 S.W.2d at 400 (citing Mullane v. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950)).
. Tex.R. Civ. P. 99(b).
. Id. at (c).
Dissenting Opinion
dissenting.
Because the majority opinion is in conflict with the clear holding of the Texas Supreme Court in Capitol Brick, Inc. v. Fleming Mfg. Co., I respectfully dissent. In Capitol Brick, the Supreme Court held that, absent fraud or mistake, a certificate from the Secretary of State’s office is conclusive evidence that the Secretary of State received service of process and forwarded the process as required. There was no evidence of fraud or mistake in the instant case, and the Secretary of State’s certificate is conclusive evidence 1) that the Secretary received service of process in accordance with Section 17.044 of the Texas Civil Practice and Remedies Code, and 2) that the Secretary, in accordance with Section 17.045 of the same code, forwarded a copy of the process to Onyx TV at the address that Onyx admits is its correct home office address.
The majority seeks to distinguish Capitol Brick from the instant case by pointing out that the court in Capitol Brick “was not dealing with the ten day requirement for the citation to be on file, but rather whether service of process had been shown.” (Majority opinion, p. 430) However, the instant case is not about the ten day requirement of Rule 107,
Because the certificate of the Secretary of State’s office was conclusive evidence that Onyx was served in a manner re
. Onyx responded to the clerk’s notice of entry of a default judgment mailed to the same address.
. It is undisputed that the Secretary of State’s certificate was on file in the instant case for more than ten days when the default judgment was entered.
Reference
- Full Case Name
- ONYX TV, Appellant, v. THE TV STRATEGY GROUP, LLC, Appellee
- Cited By
- 14 cases
- Status
- Published