Summary
holding that process server's one attempt to serve registered agent at vacant address constituted reasonable diligence
Summary of this case from Acadian Props. Austin v. Kjmonte Invs.Opinion
No. 04-04-00279-CV
Delivered and Filed: June 22, 2005.
Appeal from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 280,222, Honorable Timothy F. Johnson, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis SPEEDLIN, Justice.
MEMORANDUM OPINION
In this restricted appeal, Liberty Label Company, Inc. contends the trial court erred in rendering a default judgment against it in the sworn account suit filed by Morgan Adhesives Co. d/b/a Mactac. We affirm the trial court's judgment.
1. Liberty Label first argues the trial court erred in rendering the default judgment because Mactac failed to show due diligence in attempting to serve Liberty Label before resorting to substituted service on the Secretary of State. We disagree. Mactac's Original Petition states that process could be served on Liberty Label's registered agent, Benjamin Ramos, at 6189 E. Highway 90, Seguin, Texas. The affidavit of Ronald Nowotny, a private process server, establishes that he attempted to serve Ramos at this address on February 1, 2003, at 10:00 a.m.; but the house at that address was vacant. No more is required. See Ingram Indus. Inc. v. U.S. Bolt Mfg., 121 S.W.3d 31, 33-34 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (holding that reasonable diligence was established by one attempt to serve registered agent at registered address); RWL Constr., Inc. v. Erickson, 877 S.W.2d 449, 451 (Tex.App.-Houston [1st Dist.] 1994, no writ) ("Article 2.11(B) [of the Texas Business Corporation Act] prescribes the procedure to be followed when a plaintiff cannot serve a corporation at its registered office, and the [plaintiffs] were not required to take any action other than that prescribed by statute."). Contrary to Liberty Label's argument, "reasonable diligence" does not require a showing that Nowotny attempted to ascertain the names of and serve Liberty Label's officers or find Ramos's new address and telephone number. See id. Rather, it was Liberty Label's responsibility to notify the Secretary of State of a change to either its registered agent or his address. Tex. Bus. Corp. Act Ann. art. 2.10 (Vernon 2003).
When no one answered his knock on the door of the house next door at 6185 E. Highway 90, Nowotny left his card. He later received a call from Dale Brueggeman, who lives at 6185 E. Highway 90 and who identified himself as a manager of Liberty. Brueggeman said Ramos had lived at 6189 E. Highway 90 but had moved to Austin. Nowotny next attempted service on February 11, 2003 at Liberty Label's billing and shipping address shown on the invoices, 964 E. Kingsbury, in Seguin; but there was no answer and the business was closed. Finally, on February 13, 2003, Nowotny spoke again with Brueggeman, who said he did not know who Liberty Label's owners were or where they could be found; nor did he know Ramos's whereabouts in Austin.
2. Liberty Label next argues the trial court erred in rendering the default judgment because Mactac failed to file a verified motion for substituted service, as required by Texas Rule of Civil Procedure 106. However, "[s]trict compliance under [R]ule 106 is not necessary because it is evident from the record that substituted service was requested under article 2.11(B), rather than under [R]ule 106." Ingram Indus., 121 S.W.3d at 35.
Citing National Multiple Sclerosis Soc'y v. Rice, 29 S.W.3d 174 (Tex.App.-Eastland 2000, no pet.), Liberty Label argues that "[s]ome of the Texas courts are divided on the issue of whether a party attempting to perfect service after showing due diligence must initiate Rule 106 or rather, invoke [a]rticle 2.11 without the necessity of filing a verified motion requesting substitute[d] service." But Rice does not hold that a party seeking substituted service under article 2.11 must comply with the requirements of Rule 106. Rather, Rice holds that substituted service under article 1369-2.07 of the Texas Non-Profit Corporation Act was not available because "[n]othing in the record, including the reporter's record of the default judgment hearing, describes the attempts made to locate and to serve the registered agent;" accordingly, "[t]he record does not show that [the plaintiff] used reasonable diligence in her attempts to locate the agent and to serve him before she attempted substitute service through the Secretary of State." Id. at 177. The court further held that, "[b]ecause [it] found no evidence of reasonable diligence to support service on the Secretary of State under [a]rticle 1396-2.07," it "need not address the applicability of Rule 106(b)." Id. at 178. Neither holding supports Liberty Label's argument.
3. Liberty Label next argues the trial court erred in rendering the default judgment because Nowotny's affidavit is defective since he signed it on February 15, 2003, while he swore to its truth before a notary public on July 2, 2003. We again disagree. The statute setting forth the requirements for an affidavit does not require that an affidavit be signed and sworn to on the same date. See Tex. Gov't Code Ann. § 312.011(1) (Vernon 2005) ("`Affidavit' means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office."). Contrary to Liberty Label's argument, the cases it cites do not hold to the contrary; rather, these cases stand merely for the general proposition that the affiant must personally appear before a person authorized to administer oaths. See Wise v. Cain, 212 S.W.2d 880, 882 (Tex.Civ.App.-Austin 1948, writ ref'd n.r.e.) ("to constitute a notarial certificate to an affidavit valid, the affiant must appear personally before the notary"); United Servs. Auto. Ass'n v. Ratterree, 512 S.W.2d 30, 32 (Tex.Civ.App.-San Antonio 1974, writ ref'd n.r.e.) (holding that oath taken over the telephone was void because "a certificate of a notary is defective where the party did not appear before a notary public"); Charlton v. Richard Gill Co., 285 S.W.2d 801, 803 (Tex.Civ.App.-San Antonio 1955, no writ) (holding that a wife's acknowledgment to a deed of trust covering a homestead was void because the acknowledgment was taken over the telephone). These authorities do not support Liberty Label's argument.
4. Liberty Label next argues the trial court erred in rendering the default judgment because no reporter's record was made of the hearing. We again disagree. The affidavit of R.C. Valentine attached to the petition is sufficient to support the judgment for the amount due on the account. See Tex. R. Civ. P. 185; see also Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985) ("In the absence of a sworn denial meeting the requirements of the rule, an account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges. . . ."). The affidavit of Marshall L. Armstrong regarding attorney's fees "satisf[ies] the requirement for proof of unliquidated damages." Barganier v. Saddlebrook Apartments, 104 S.W.3d 171, 173 (Tex.App.-Waco 2003, no pet.); see Texas Commerce Bank v. New, 3 S.W.3d 515, 517 (Tex. 1999) (affidavit to which no objection is made will support a default judgment for unliquidated damages).
5. Liberty Label next argues the trial court erred in rendering the default judgment because Mactac's claim was barred by the statute of limitations. However, "statutes of limitations are not jurisdictional." In re Marriage of Collins, 870 S.W.2d 682, 684 (Tex.App.-Amarillo 1994, writ denied). Rather, limitations is an affirmative defense that is waived by the failure to plead it in the trial court. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex. 1988). Since Liberty Label failed to plead its limitations defense in the trial court, it may not raise it for the first time on appeal. McDaniel v. Tucker, 520 S.W.2d 543, 547 (Tex.Civ.App.-Corpus Christi 1975, no writ). The case upon which Liberty Label relies is not to the contrary. See Paramount Pipe Supply Co. v. Muhr, 749 S.W.2d 491 (Tex. 1988) (holding petition gave fair notice of valid claim and distinguishing cases in which claim was held to be invalid because allegations in petition varied from proof).
The trial court's judgment is affirmed.