John-William Fine Furniture and Interiors, Inc. v. Diane Lisa Madison--Appeal from 98th District Court of Travis County

John-Wm v. Madison IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-211-CV
JOHN-WILLIAM FINE FURNITURE AND INTERIORS, INC.,
APPELLANT
vs.
DIANE LISA MADISON,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 476,029-A, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

John-William Fine Furniture and Interiors, Inc. (John-William) brings this appeal by writ of error seeking review of a default judgment rendered against it in favor of Diane Lisa Madison, appellee. John-William argues that error, in the form of improper service, is apparent on the face of the record and that the default judgment must therefore be reversed. We will affirm the trial court's judgment.

A dispute arose between Madison and John-William over the possession of an antique tapestry and the performance of various interior design services. Ultimately, Madison sued John-William for conversion of the tapestry and for breach of the contract to provide design services.

Madison first attempted to serve John-William's registered agent at its registered office. According to the officer's return on the citation, when a deputy sheriff went to the address, the occupant told him that the person named as registered agent had "lost the lease" in 1985. The deputy noted the time, place, and manner of attempted service on the unexecuted return, signed the return, and filed it. Madison then amended her petition to allege that, after the exercise of reasonable diligence, service could not be accomplished on the registered agent at the registered office. She subsequently obtained service on John-William by delivering the citation to the Secretary of State, who forwarded one copy to the registered agent at the registered office by certified mail, return receipt requested. The post office returned the citation in an envelope bearing the notation, "Moved, not forwardable." John-William contends this record shows Madison's failure to strictly comply with the relevant provisions of the Texas Business Corporation Act under which service was accomplished. See Tex. Bus. Corp. Act art. 2.11(B) (1980). We disagree.

Article 2.11(B) permits substituted service on a domestic corporation through the Secretary of State when the registered agent for the corporation cannot, with reasonable diligence, be found at the registered office. Substituted service is accomplished by delivering duplicate copies of the citation to the Secretary of State as the corporation's agent for service of process, with the Secretary of State then forwarding one of the copies to the corporation at its registered office by registered mail. Without question, the record affirmatively demonstrates strict compliance with article 2.11. The sole question is whether Madison exercised reasonable diligence in attempting to serve John-William's registered agent at the registered office. If not, she could not properly obtain substituted service on John-William through the Secretary of State.

John-William contends that, because Madison's petition alleged the address of "a principal place of business" of John Williams, but did not attempt service there, she failed to exercise the reasonable diligence required by 2.11(B). This contention is meritless. Article 2.11(B) provides that

 

[w]henever a corporation shall fail 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.

 

Moreover, nothing in the record indicates that the registered agent or any corporate officer could have been found at the John-William place of business alleged in Madison's petition.

On substantially similar facts and in the face of an identical argument, the court upheld service in TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706 (Tex. App. 1982, no writ). The court there noted that the inability to effect personal service on the appellant's registered agent resulted not from the appellee's lack of diligence, but from the appellant's failure to provide the Secretary of State with the name of its current registered agent and the address of its current registered office, as required by the statute. See Tex. Bus. Corp. Act Ann. 2.09 (1980); see also Advertising Displays, Inc. v. Cote, 732 S.W.2d 360 (Tex. App. 1987, no writ); Houston's Wild West, Inc. v. Salinas, 690 S.W.2d 30 (Tex. App. 1985, writ ref'd n.r.e.); Tankard-Smith, Inc. v. Thursby, 663 S.W.2d 473 (Tex. App. 1983, writ ref'd n.r.e.). We hold that the record in the present case does not show that Madison failed to exercise reasonable diligence in attempting to serve John-William's registered agent at its registered office. We overrule John-William's first point of error.

John-William complains in its third point that Madison's pleadings do not support the judgment because the petition alleged a breach of contract cause of action "only briefly," while the judgment awarded damages for a total failure of performance. We conclude that the pleadings and proof support the judgment rendered. Madison asserted in her petition that John-William had agreed to provide services that it had not provided. At the hearing on damages, Madison testified she had paid John-William $567.89 for the services and that John-William had neither provided the services nor refunded her money. The trial court awarded Madison $567.89 plus attorney's fees. We overrule John-William's third point of error.

John-William's second point of error rests entirely on the alleged defect in service. Because we have concluded that Madison has demonstrated strict compliance with article 2.11(B), we need not address this point. See Tex. R. App. P. 90(a).

We affirm the trial court's judgment.

 

J. Woodfin Jones, Justice

[Before Chief Justice Carroll, Justices Jones and B.A. Smith]

Affirmed

Filed: June 12, 1991

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