OTIS SPUNKMEYER, INC., Appellant v. AARON RAY LEE, Appellee

REVERSE and REMAND; Opinion Filed June 11, 2001
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-00-01521-CV
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OTIS SPUNKMEYER, INC., Appellant
V.
AARON RAY LEE, Appellee
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On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-00-2868-D
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OPINION
Before Justices Kinkeade, Wright, and FitzGerald
Opinion By Justice Kinkeade
        In this restricted appeal, Otis Spunkmeyer, Inc. (“Otis Spunkmeyer”) appeals a no-answer default judgment against it in favor of Aaron Ray Lee. In two issues, Otis Spunkmeyer contends the trial court erred in granting default judgment because (1) Lee failed to plead any cause of action against Otis Spunkmeyer in its original petition, and (2) there was no copy of the citation or return filed in the record prior to taking the default judgment. Because we conclude the record fails to show compliance with the rules relating to proper service, we reverse the default judgment and remand the case to the trial court for further proceedings.
 
Factual Background
 
        Lee filed suit against Eric Hale and Otis Spunkmeyer, Inc., alleging damages from an automobile accident where his vehicle was struck from behind by a vehicle operated by Eric Hale, an employee of Otis Spunkmeyer. Lee alleged Hale was negligent and that Otis Spunkmeyer was Hale's employer and the owner of the vehicle Hale was driving. The petition stated that the agent for service of process of Otis Spunkmeyer was Mr. Dan Jones, 2009 108th Street, Suite 902, Grand Prairie, Tarrant County, Texas 75050-1425.
        On June 6, 2000, Lee dismissed his suit against Hale. The trial court granted default judgment against Otis Spunkmeyer. On that date, the record did not contain a copy of the citation, proof of service or return of service. Upon learning of the judgment, Otis Spunkmeyer filed this restricted appeal.
 
Service of Process
 
        In a direct attack on a default judgment, as in this case, there are no presumptions in favor of valid issuance, service, and return of citation. See Dolly v. Aethos Communic. Sys., Inc., 10 S.W.3d 384, 388 (Tex. App._Dallas 2000, no pet.) (citing Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). On direct appeal from a default judgment, the record must affirmatively show the trial court had personal jurisdiction over the defendant. Ackerly v. Ackerly, 13 S.W.3d 454, 457 (Tex. App._Corpus Christi 2000, no pet.). To support a default judgment, service of process must be performed in strict compliance with the appropriate statutory provisions. Dolly, 10 S.W.3d at 388. “Virtually any deviation will be sufficient to set aside a default judgment in a restricted appeal.” Id.
        Rule 107 of the Texas Rules of Civil Procedure provides that “[n]o default judgment shall be granted in any cause until the citation . . . shall have been on file with the clerk of the court ten days. . .” Tex. R. Civ. P. 107. If a corporation fails to appoint or maintain a registered agent in this State, or whenever its registered agent cannot, with reasonable diligence, be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. Tex. Bus. Corp. Act Ann. Art. 2.11(b) (Vernon 1980). A default judgment granted after an attempted substituted service may not stand on appeal without a showing by the plaintiff that, before it resorted to service on the Secretary of State, it first used reasonable diligence in seeking service on the registered agent of the corporation at the registered office. Maddison Dual Fuels, Inc. v. Souther Union Co., 944 S.W.2d 735, 738 (Tex. App._Corpus Christi 1997, no pet.); General Office Outfitters, Inc. v. Holt, 670 S.W.2d 748, 749 (Tex. App._Dallas 1984, no writ).
        The record in this case shows that the only evidence of attempted service before the trial court at the time the default judgment was granted was a notice from the Secretary of State that it had received a copy of the citation and plaintiff's original petition, and had forwarded it to the registered agent for Otis Spunkmeyer at the address in the petition, and that it was returned unclaimed. Nothing in the record shows what attempts, if any, were made to locate the registered agent. We find no evidence that Lee used diligence in attempting to serve the registered agent. Therefore, the record does not show that Lee would have been authorized to use substituted service on the Secretary of State. See Maddison, 944 S.W.2d at 738. Because jurisdiction based on substituted service of process does not affirmatively appear on the face of the record, the default judgment must be reversed. See id; see also McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965).
        Lee contends the record contains an affidavit from his attorney stating that “every attempt was made” to serve Otis Spunkmeyer at the last known address of its registered agent. However, the record shows this affidavit was filed on October 10, 2000, more than four months after the default judgment was taken. In a restricted appeal, the “face of the record” consists of all the papers on file as they existed in the trial court at the time the default judgement was entered. Jordan v. Jordan, 36 S.W.3d 259, 264 (Tex. App._Beaumont 2001, pet. filed); In re E.K.N., 24 S.W.3d 586, 590 (Tex. App._Fort Worth 2000, no pet.); see also Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). Because this document was not before the trial court prior to its final judgment, it is not a matter appearing “on the face of the record” and we are not authorized to consider it. Tankard-Smith, Inc. General Contractors v. Thursby, 663 S.W.2d 473 (Tex. App._Houston [14th Dist.] 1983, writ ref'd n.r.e.).
        Because the record does not show proper service, the judgment is this case is void. Ackerly, 13 S.W.3d at 458 (default judgment based on improper service is void). Because this issue is dispositive of this appeal, we need not consider Otis Spunkmeyer's remaining issue. We reverse the judgment and remand the case to the trial court for further proceedings.
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
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Tex. R. App. P. 47