Wachovia Bank of Delaware, N.A. f/k/a First Union National Bank of Delaware v. Marjorie Gilliam and Patsy Charline Fowler--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00038-CV

Wachovia Bank of Delaware, N.A.

f/k/a First Union National Bank

of Delaware,

Appellant

v.

Marjorie Gilliam and

Patsy Charline Fowler,

Appellees

From the 40th District Court

Ellis County, Texas

Trial Court No. 66293

MEMORANDUM Opinion

Wachovia Bank of Delaware, N.A. f/k/a First Union National Bank of Delaware filed this restricted appeal seeking to set aside a default judgment for defective service of process. We affirm.

Background

Wachovia is the owner and holder of a home equity lien against the homestead of Patsy Charline Fowler. On August 1, 2003, Fowler and Marjorie Gilliam[1] (Appellees) filed suit against Wachovia requesting a declaratory judgment that the home equity lien is invalid and seeking to permanently enjoin Wachovia from foreclosing on the lien. Because no answer was filed by Wachovia, the trial court rendered a default judgment against it on September 25, 2003. Wachovia filed this restricted appeal on January 20, 2004.

Restricted Appeal

A restricted appeal is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment. Campbell v. Fincher 72 S.W.3d 723, 724 (Tex. App. Waco 2002, no pet.). A direct attack on a default judgment by restricted appeal must: (1) be brought within six months after the final judgment is signed; (2) by a party to the lawsuit; (3) who did not participate at trial; and (4) the error complained of must be apparent from the face of the record. Tex. R. App. P. 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); Campbell, 72 S.W.3d at 724.

The record shows that Wachovia filed this restricted appeal within six months after the trial court signed the default judgment. Wachovia was a named defendant in the lawsuit, and the reporter s record demonstrates that Wachovia did not participate at the hearing. Therefore, we turn to whether reversible error is apparent from the record.

Wachovia argues in its sole issue that the default judgment is void because the record does not affirmatively show that the trial court had personal jurisdiction over Wachovia due to the failure of the Appellees to strictly comply with the service requirements of the Texas long-arm statute.

Strict Compliance with Service of Citation

Proper citation and return of service is essential to establish personal jurisdiction. Therefore, compliance with service of process statutes is strictly enforced. Seeley v. KCI USA, Inc., 100 S.W.3d 276, 278 (Tex. App. San Antonio 2002, no pet.). A default judgment is improper against a defendant who has not been served in strict compliance with the law, even if the defendant had actual knowledge of the lawsuit, because the trial court did not have personal jurisdiction over the defendant. Frazier v. Dikovitsky, 144 S.W.3d 146, 148-49 (Tex. App. Texarkana 2004, no pet.); Bank of Am., N.T.S.A. v. Love, 770 S.W.2d 890, 891 (Tex. App. San Antonio 1989, writ denied). In a direct attack on a default judgment by restricted appeal, there are no presumptions of valid issuance, service, and return of citation, and strict compliance must affirmatively appear on the record. Frazier, 144 S.W.3d at 148-49; Bank of Am., 770 S.W.2d at 891. The plaintiff bears the burden to affirmatively show strict compliance, and must allege facts in its pleadings which, if true, would establish defendant's amenability to such service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Frazier, 144 S.W.3d at 149.

Wachovia argues that Appellees did not comply with the service requirements of section 17.045 of the Texas Civil Practice and Remedies Code because they failed to state that the address listed was Wachovia s home or home office. Tex. Civ. Prac. & Rem. Code Ann. 17.045 (Vernon Supp. 2004-2005). The record affirms that Appellees did not use the words home or home office in their pleadings. Section 17.045 requires this language, and many a default judgment has been reversed because the plaintiff did not strictly comply with the statute by failing to characterize the defendant s address as its home or home office. Tex. Civ. Prac. & Rem. Code Ann. 17.045; Seeley, 100 S.W.3d at 279; Whiskeman v. Lama, 847 S.W.2d 327, 330 (Tex. App. El Paso 1993, no writ); Bank of Am., 770 S.W.2d at 892; see contra Mahon v. Caldwell, Haddad, Skaggs, Inc., 783 S.W.2d 769, 771 (Tex. App. Fort Worth 1990, no writ). However, Appellees argue that service of process was properly accomplished not under section 17.045, but under article 8.10 of the Texas Business Corporation Act. Tex. Bus. Corp. Act Ann. art. 8.10 (Vernon 2003).

Appellees argue that because article 8.10 governs service of process upon foreign corporations, we must review for strict compliance using the requirements of article 8.10. Tex. Bus. Corp. Act Ann. art. 8.10. We note that Appellees did not reference in their pleadings which long-arm statute was used to effectuate service upon Wachovia, nor do they cite any authority that would allow them to elect which statute applies for the first time on appeal.

Texas has several long-arm statutes, and more than one may apply to a single defendant. Because a plaintiff must strictly comply with the requirements of at least one of these statutes, due process concerns are alleviated. See Campus Investments, Inc. v. Cullever, 141 S.W.3d 641, 643 (Tex. App. Houston [1st Dist.] 2003), aff d, 144 S.W.3d 464 (Tex. 2004). Therefore, as long as strict compliance is found under any of the long-arm statutes applicable to the defendant, service is proper and a default judgment will not be reversed. See Schaeffer v. Moody, 705 S.W.2d 318, 320 (Tex. App. San Antonio 1986, writ ref d n.r.e.) ( service can be perfected pursuant to either [statute] if the facts alleged in the plaintiff s original petition provide a basis for asserting jurisdiction under either statute ) (citing Quiroz v. McNamara, 585 S.W.2d 859 (Tex. Civ. App. Tyler 1979, no writ)); C.W. Bollinger Ins. Co. v. Fish, 699 S.W.2d 645, 648 (Tex. App. Austin 1985, no writ) (reviewing three applicable long-arm statutes for strict compliance). Furthermore, while a careful plaintiff cites the specific statute being used to effectuate service, there is no authority requiring him to do so. See Schaeffer, 705 S.W.2d at 319-20.

As stated above, Appellees did not strictly comply with section 17.045. Therefore, we look to whether they may properly serve Wachovia with process under article 8.10, and if so, whether they strictly complied with the requirements for service of process under article 8.10.

Article 8.10 governs service of process upon foreign corporations. Autozone, Inc. v. Duenes, 108 S.W.3d 917, 920 (Tex. App. Corpus Christi 2003, no pet.).

Whenever a foreign corporation authorized to transact business in this State shall fail to appoint or maintain a registered agent in this State . . . then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him, or with the Assistant Secretary of State, or with any clerk having charge of the corporation department of his office, duplicate copies of such process, notice, or demand. In the event any such process, notice or demand is served on the Secretary of State, he shall immediately cause one of such copies thereof to be forwarded by registered mail, addressed to the corporation at its principal office in the state or country under the laws of which it is incorporated.

Tex. Bus. Corp. Act Ann. art. 8.10 B.

Appellees allege in their petition that

Wachovia . . . is a national bank, is a nonresident engaged in business in Texas and does not maintain a regular place of business or have a designated agent for service in Texas, and may be served with a citation directed to said Defendant at the following address by serving any officer of the bank . . . Service of said Defendant as described above can be effected by personal delivery or by service via the Texas Secretary of State.

Appellees petition contains all the information necessary to properly obtain substituted service of process pursuant to article 8.10. Readwood Group, L.L.C. v. Louiseau, 113 S.W.3d 866, 870 (Tex. App. Austin 2003, no pet.) (finding that stating that a nonresident failed to appoint or maintain a registered agent is an essential jurisdictional fact). The record demonstrates that service of process was effected upon the Secretary of State, and that the Secretary forwarded service to Wachovia. See Roland Commun., Inc. v. Am. Commun., 662 S.W.2d 145, 146 (Tex. App. Corpus Christi 1983, no writ). The record reflects that the Secretary of State certified that the return receipt was received bearing the signature of Wachovia s agent. Therefore, we find that Appellees strictly complied with the requirements of service of process under article 8.10. See Tex. Bus. Corp. Act Ann. art. 8.10; Firence Footwear Co. v. Campbell, 411 S.W.2d 636, 638 (Tex. Civ. App. Houston 1967, writ ref d n.r.e.). Accordingly, the trial court had jurisdiction over Wachovia. See Wilson, 800 S.W.2d at 836;Campus Investments, Inc., 141 S.W.3d at 643. We overrule Wachovia s only issue.

Conclusion

We affirm the judgment of the trial court.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed June 29, 2005

[CV06]

[1] Appellees allege in their pleadings that Gilliam, by the death of her father (Fowler s husband), acquired a 25% interest in the homestead. Because Gilliam was not a signatory on the home equity lien, Appellees argue that the lien is invalid.