No service; no motion to vacate an arbitration award.

Craig moved to vacate an arbitration award: “Thus, under [Tex. Civ. Prac. & Rem. Code] section 171.094, she was required to arrange for service of process on appellees upon filing the motion. Craig did not arrange for service of process until she filed her supplemental motion to vacate on September 1, 2016, more than five months after the arbitration panel entered its award. Because she did not serve notice of her motion to vacate within [FAA] Section 12’s three-month limitations period, the service was untimely and the trial court was required to dismiss her motion as untimely.” The Fifth Court declined to apply any equitable tolling doctrine, and rejected an earlier emailing of the motion as inadequate under the TAA’s procedural requirements. Craig v. Southwest Securities, No. 05-16-01378-CV (Dec. 18, 2017) (mem. op.)

Good service.

In BB&T v. SWIG Partners LP, the Fifth Court reversed a limitations ruling based on allegedly inadequate efforts to serve all of the defendants, observing: “Twelve of the thirty named defendants were served within three weeks after citations were issued. All the defendants then made an appearance obviating  the need for further service of process. See Tex. R. Civ. P. 120. The longest period of time without service on a defendant before all the defendants answered was four business days. The time between the date suit was filed and the date all defendants filed their original answer was twenty-eight days. When three of the defendants were omitted from the defendants’ amended answer, BB&T moved for substitute service. In granting BB&T’s motions for substitute service, the trial court repeatedly found BB&T had diligently attempted service on each of the subject defendants.” No. 05-15-00878-CV (Dec. 13, 2017) (mem. op.)

Not-so special appearance

A Mexican company disputed personal jurisdiction in Texas, but ran afoul of special appearance procedure: “A special appearance that merely challenges the method of service fails as a special appearance and constitutes a general appearance. A complaint that a defendant was not served in acccordance with the Hague Convention is a complaint regarding a curable defect in service of process. Such a complaint does not defeat a nonresident’s amenability to the court’s process and thus should not be raised via a special appearance.” Vitro Packaging de Mexico v. Dubiel, No. 05-17-00258-CV (applying Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985)) (Dec. 13, 2017) (mem. op.) (citations omitted, emphasis added)

Notice isn’t good service – here, or overseas.

indian flagMs. Mandava served divorce papers on Mr. Chukkapalli in India using the Hague Convention. When Chukkapalli moved for a new trial in Texas, pointing out flaws in how he was served, Mandava countered by showing that he had actual notice of the Texas lawsuit – he had made a filing with an Indian family court that identified the Texas case and attached a document from the Texas case file. The Fifth Court agreed with him about the problems with service and held: “Although it appears Chukkapalli had actual notice of the Texas divorce proceeding, actual notice to a defendant of a pending suit, without proper [service], is not sufficient.” However: “[U]pon remand, the parties will be before the court wihout need for further citation because Chukkapalli has now become subject to the jurisdiction of the court.” Chukkapalli v. Mandava, No. 05-15-01287-CV (June 30, 2017) (mem. op.)

Mistaken Nomenclature Negates Default Judgment

Deutsche Bank has won a restricted appeal to set aside a no-answer default judgment. The petition named the defendant as “DEUTSCHE BANK NATIONAL TRUST COMPANY, herein sued in its capacity as the Trustee for the Morgan Stanley ABS Capital 1 Inc., Trust 2006-NC5, Mortgage Pass Through Certificates, Series 2006-NC5.” But the clerk’s office issued a citation addressed to “Deutsche Bank National Trust Company as Trustee Company,” and that name was also used on the affidavit of service. Because the citation was addressed to the wrong party, the attempted service of process was invalid and the default judgment had to be set aside.

Deutsche Bank Nat’l Trust Co. v. Kingman Holdings, LLC, 05-14-00855-CV

Supreme Court Update: Reasonable Diligence Not Established

A year ago, the Dallas Court of Appeals affirmed the denial of an equitable bill of review in which the defendants claimed that the plaintiff had not exercised reasonable diligence in its attempts to effect service through registered mail and personal delivery. The Texas Supreme Court has now set aside that ruling, holding that the defendants had presented some evidence that their failure to receive notice of the default judgment resulted solely from the plaintiff’s failure to certify the defendants’ last known mailing address, and not from any negligence or fault on the defendants’ own part. The record contained evidence that the plaintiff’s owner had met with the defendants’ registered agent at their current address, rather than the outdated address on file with the Secretary of State, that raised a genuine issue of material fact as to the validity of the plaintiff’s “last known mailing address” certification.

Katy Venture, Ltd. v. Cremona Bistro, LLC, No. 14-0629

Service of Process on a Financial Institution

In this restricted appeal, the plaintiff carried out service on the defendant, a bank with a registered agent in New York, solely though service of process upon the Texas Secretary of State.  On appeal, the Court agreed with the defendant that such service was improper because the plaintiff failed to strictly comply with CPRC 17.028, which permits service upon a financial institution by service to “the president or a branch manager at any office located in the state.”

Bank of N.Y. Mellon v. Redbud 115 Land Tr.

“Manner of Service” Required in TRCP 107 Affidavit

In this memorandum opinion, the court found insufficient the sheriff’s affidavit of service, because the affidavit merely stated that the recipient “was served.”  According to the Court, “[b]ecause the return does not state the manner of service, it does not strictly comply with [TRCP] 107, which requires the officer’s return state ‘the manner of delivery of service.'”

U.S. Bank v. Pinkerton Consulting & Investigations

Reasonable Diligence Established

The defaulting defendant in this case claimed that the plaintiff’s service through the Secretary of State was defective because the plaintiff did not establish reasonable diligence in its failed efforts to effect service via registered mail and personal delivery.  The Court of Appeals found that the plaintiff exercised reasonable diligence in both of its prior attempts to carry out service.  Regarding registered mail, the record established that the plaintiff paid the clerk and arranged to have the defendants served by certified mail, return receipt requested at the defendant’s registered address.  When the mailing was returned with the notation that it was undeliverable and could not be forwarded, the plaintiff had sufficiently exercised reasonable diligence.  Regarding personal service, the plaintiff sent a process server to defendant’s registered address, but neither plaintiff’s business nor its registered agent were there.  According to the Court, this was enough since “[t]he statute does not require efforts to find the registered agent at any place other than at the entity’s registered office.”

Katy Venture Ltd. v. Cremona Bistro Corp.

Default Judgment Upheld

The plaintiff sued his former employer, El Paisano, for unpaid wages and unpaid overtime.  After four unsuccessful attempts by a process server to serve El Paisano at the address of its registered agent, the plaintiff served the Texas Secretary of State, who then forwarded the process to the same address via certified mail.  That attempt at service also failed, and the process was returned to the secretary of state with the notation “unclaimed.”  The plaintiff then moved for a default judgment, which the trial court granted.

El Paisano eventually learned of the default judgment and sought to have it set aside.  The trial court denied its motion for a new trial, and El Paisano appealed.  El Paisano argued, among other things, that it was not properly served because the secretary of state did not send the process to its principal place of business.  The Court of Appeals rejected that argument and upheld the default judgment, noting that the plaintiff was entitled to use substituted service on the secretary of state and that the secretary of state had no obligation to send it anywhere other than the address of El Paisano’s registered agent.

El Paisano Nw Hwy v. Arzate, No. 05-12-01457-CV