REVERSE and REMAND; and Opinion Filed March 18, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-00162-CV
GREYSTAR, LLC, Appellant
V.
MELISSA ADAMS, Appellee
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-06022
OPINION
Before Justices O’Neill, Myers, and Brown
Opinion by Justice O’Neill
The underlying lawsuit in this appeal involves the circumstances surrounding Appellee
Melissa Adams’s termination from employment with appellant Greystar, LLC. 1 Appellee
allegedly served appellant; however, appellant failed to answer. The trial court entered default
judgment on August 23, 2012 and final judgment was entered on September 17, 2012. Appellant
timely filed this restricted appeal.
In a single issue, appellant argues it was not properly served. Specifically, it contends
error is apparent from the face of the record because (1) the return citation reflects delivery on an
individual other than the registered agent as identified in the citation, and (2) the return of
citation does not affirmatively show that the person who accepted service had authority to do so
1
The Original Petition identified Greystar without any corporate designation; however, the text of her pleadings refers to “Greystar, LLC.”
The notice of appeal states, “Defendant, Greystar Management, L.P., incorrectly named as ‘Greystar, LLC’ (‘Defendant’), files this Notice of
Restricted Appeal . . . .”
on its behalf. Appellee argues the appeal should be dismissed for want of jurisdiction, or
alternatively, appellant was properly served.
We deny appellee’s motion to dismiss. Because appellant has shown error on the face of
the record and was not properly served, we reverse the trial court’s judgment and remand to the
trial court for further proceedings.
Background
Appellee worked as a community manager for appellant at an apartment complex in
Plano, Texas. In October of 2010, appellee informed appellant she was pregnant. A month later,
she received a review and was then demoted to an assistant manager at a different apartment
complex. Appellee believed she was being retaliated against because of her pregnancy in
violation of the Texas Labor Code. After she was terminated, she filed suit against “Greystar,”
even though she referred to appellee as “Greystar, LLC” in the body of the original petition.
Citation was issued on May 31, 2012 in the matter of “Melissa Adams vs. Greystar LLC”
and was addressed as follows:
To: Greystar LLC
Its registered agent CT Corporation System
350 N St Paul St STE 2900
Dallas, Texas 75201
An affidavit of service was filed on June 11, 2012 stating in relevant part:
Came to hand on Friday, June 1, 2012 at 10:15 AM,
Executed at : 1705 COIT ROAD 2900, PLANO, TX 75075
within the county of COLLIN at 4:15 PM, on Tuesday, June 5,
2012, by delivering to the within named:
GREYSTAR LLC
By delivering to its Office Manager, JAMIE DAITCH
Each, in person a true copy of this
CITATION AND PLAINTIFF’S ORIGINAL
PETITION with EXHIBIT A
–2–
Appellant did not answer or otherwise respond to the original petition.
Appellee filed a motion for default judgment, which the trial court granted on August 23,
2012. A hearing was set for the trial court to hear evidence as to unliquidated damages on
September 17, 2012. After hearing evidence, the trial court entered a final judgment on
September 17, 2012 awarding appellee $19,925 in past lost earnings, $12,740 for future lost
earnings, $50,000 for compensatory damages, and $5,000 in attorneys’ fees.
Appellant did not timely file any post-judgment motions, request for findings of fact and
conclusions of law, or a notice of appeal. However, it timely filed a notice of restricted appeal
on January 22, 2013. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (a
party must file notice of a restricted appeal within six months after the judgment was signed).
Appellee’s Motion to File Separate Appendix
Before addressing the merits of the appeal, we must address appellee’s motion to file a
separate appendix. The appendix contains documents from the Equal Employment Opportunity
Commission (“EEOC”), documents from the Secretary of State, and an affidavit. Appellant filed
a response arguing the motion should be denied because appellee did not present these
documents as evidence to the trial court; therefore, they are not a part of the appellate record for
our consideration.
It is well-established an appellate court may not consider matters outside the record,
which includes documents attached to a brief as an exhibit or an appendix that were not before
the trial court. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas
1987, no writ); see also Robb v. Horizon Cmty. Improvement Ass’n, 417 S.W.3d 585, 589 (Tex.
App.—El Paso 2013, no pet.). However, we may consider submitted documents that are outside
the record for the limited purpose of determining our own jurisdiction. TEX. GOV’T CODE ANN.
–3–
§ 22.220(c) (West Supp. 2013); Harlow Land Co. v. City of Melissa, 314 S.W.3d 713, 717 n. 4
(Tex. App.—Dallas 2010, no pet.).
We agree with appellee that exhibits B and C, the documents from the Secretary of State,
are relevant to our determination of jurisdiction as raised in her motion to dismiss. In order to
determine which sections of the Texas Business Organizations Code apply, we must know the
structures of the business organizations involved and whether they are properly registered in this
State. Accordingly, we grant her motion to file a separate appendix as to these documents only.
However, the EEOC documents and the affidavit of the process server are not relevant to
any issue for the purpose of determining our jurisdiction. Moreover, although appellee argues
the EEOC documents were “referenced in the record” because “The Notice of Right to File a
Civil Action recites that the case was processed by the EEOC,” we refuse to allow in ninety-
seven pages of information regarding the EEOC investigation that the trial court never
considered and was merely “referenced” in another document. Accordingly, we deny appellant’s
motion to include Exhibits A and D. We now turn to appellee’s motion to dismiss.
Motion to Dismiss
In her brief and in a separate motion, appellee challenges this court’s jurisdiction and
requests dismissal of the appeal. She contends because appellant’s general partner, GREP
General Partner, LLC, has never registered with the Secretary of State to conduct business in
Texas, appellant has violated provisions of the Texas Business Organizations Code and cannot
maintain this appeal. Appellant responds Greystar Management Services, L.P. is a properly
registered entity in Texas, and the Texas Business Organizations Code requires nothing more of
it; therefore, appellee’s argument is without merit.
Section 9.001 of the Texas Business Organizations Code requires a foreign entity to
register with the Secretary of State in order to “transact business in this state.” TEX. BUS. ORG.
–4–
CODE ANN. § 9.001(a) (West 2012). Attached to her motion to dismiss, appellee included a
“Certificate of Fact” from the Office of the Secretary of State stating a “diligent search of the
records of this office was performed on the name of GREP General Partners, LLC,” and no
records of any filings on behalf of the LLC were located. Based on this information, appellee
asserts appellant has violated section 9.001(a) because “A limited partnership can legally act
only through its General Partner,” citing Texas Business Organizations Code Annotated section
153.152.
Section 153.152 states the following:
(a) Except as provided by this chapter, the other limited
partnership provisions, or a partnership agreement, a general
partner of a limited partnership:
(1) has the rights and powers and is subject to the
restrictions of a partner in a partnership without limited
partners; and
(2) has the liabilities of a partner in a partnership
without limited partners to the partnership and to the other
partners.
(b) Except as provided by this chapter or the other limited
partnership provisions, a general partner of a limited partnership
has the liabilities of a partner in a partnership without limited
partners to a person other than the partnership and the other
partners.
TEX. BUS. ORG. CODE ANN. § 153.152 (West 2012). We agree with appellant that this provision
has no bearing on whether or how a limited partnership conducts business in this State,
particularly in regards to whether appellant can maintain this appeal.
Because appellant is organized under the laws of Delaware, it is considered a “foreign
entity.” Id. § 1.002(28). Section 9.051(a) prevents a foreign filing entity from maintaining “an
action, suit, or proceeding in a court of this state . . . unless the foreign filing entity is registered
in accordance with this chapter.” Documentation attached to appellee’s motion to dismiss
–5–
confirms appellant is registered to conduct business in this State; therefore, appellant is not in
violation of sections 9.001 and 9.051. As such, contrary to appellee’s assertion, appellant is not
prohibited by section 9.051(a) from maintaining this appeal. Moreover, even if we were to
conclude that GREP General Partners, LLC’s failure to register impacted appellant’s ability to
maintain a suit, section 9.051(c) specifically states that “the failure of a foreign filing entity to
register does not: . . . (2) prevent the entity from defending an action, suit, or proceeding in a
court in this state.” Id. § 9.051(c)(2). As such, appellant would not have been prevented from
defending the underlying lawsuit, and therefore, we will not prevent it from bringing this appeal.
Appellee’s motion to dismiss is denied.
Standard of Review for a Restricted Appeal and Default Judgment
To prevail on its restricted appeal, appellant must establish: (1) it filed its notice of
restricted appeal within six months after the judgment was signed; (2) it was a party to the
underlying suit; (3) it did not participate in the hearing that resulted in the judgment complained
of and did not timely file any post-judgment motions or request findings of fact and conclusions
of law; and (4) error is apparent on the face of the record. Alexander, 134 S.W.3d at 848; Lytle
v. Cunningham, 261 S.W.3d 837, 839 (Tex. App.—Dallas 2008, no pet.) (citing TEX. R. APP. P.
26.1(c)). For purposes of a restricted appeal, the record consists of all papers filed in the appeal,
including the reporter’s record. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.—Dallas
2011, no pet.). 2
There is no presumption in favor of proper issuance, service, and return of citation.
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Lytle, 261 S.W.3d at 841. If
the record fails to affirmatively show strict compliance with the rules of civil procedure
governing issuance, service, and return of citation, there is error apparent on the face of the
2
There is no reporter’s record in this case.
–6–
record and attempted service of process is invalid and of no effect. Lytle, 261 S.W.3d at 840.
When the attempted service of process is invalid, the trial court acquires no personal jurisdiction
over the defendant, and the default judgment is void. Id.
Discussion
We first acknowledge that the original petition and citation was addressed to “Greystar”
and “Greystar, LLC,” rather than Greystar Management Services, L.P. However, neither party
has contested that Greystar Management, Services, L.P. is the appropriate entity involved in the
underlying lawsuit. In fact, in its brief, appellant acknowledges “Greystar was misnamed in the
Original Petition and Citation . . ., but not misidentified; Greystar does not contend that there is
another entity named ‘Greystar’ or ‘Greystar LLC’ that was actually but unintentionally served
with process in this matter.” It further admits appellee attempted service on the correct entity,
but did so improperly. Because appellant has not argued misnomer as error apparent on the face
of the record, we need not address the discrepancy between the petition, citation, and party name
on appeal.
To the extent appellee argues appellant participated in the underlying proceedings, we
find her argument without merit. Appellee admits appellant did not answer or participate in the
court hearing that resulted in the default judgment at issue, but contends appellant participated in
the EEOC proceeding that resulted in the suit. Appellee seems to imply that because appellant
allegedly participated in those proceedings and received notice of the State of Texas right to sue
letter, that somehow equates to participation and notice of the underlying lawsuit. We cannot
agree. The right to sue letter simply advised appellee of her right to bring a private civil action in
state court within sixty days. By simply receiving this notice, appellant would not know if
appellee did in fact file a lawsuit against it. Moreover, the law is well-settled that actual notice to
a defendant, without proper service, is not sufficient to convey jurisdiction upon a court to render
–7–
default judgment. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); MobileVision Imaging
Servs., L.L.C. v. LifeCare Hosp. of N. Tex, L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008,
no pet.). As such, the only element of a restricted appeal at issue is whether appellant has shown
error on the face of the record because of defective service and return of citation.
Appellant first argues error is apparent on the face of the record because the return of
citation reflects delivery on an individual other than the registered agent identified in the citation.
Appellee responds the citation reflects service on a manager qualified to accept service on behalf
of appellant.
A mistake in stating the defendant’s name in the citation has been consistently held to be
fatally defective. Pharmakinetics Lab., Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.—San
Antonio 1986, no writ). The same rule likewise applies where the citation states one name, but
then was served on a person with a different name. Id.; Sw. Sec. Sevs., Inc. v. Gamboa, 172
S.W.3d 90, 93 (Tex. App.—El Paso 2005, no pet.) (finding service defective when the return
receipt was signed by Guillermo Montes but Jesus Morales was the individual designated to
receive service); Bank v. Miller, No. 05-95-01477-CV, 1996 WL 730592, at *3 (Tex. App.—
Dallas Dec. 16, 1996, writ denied) (not designated for publication) (finding service defective
when return receipt was not signed by the person appointed or by the authorized agent).
Here, the citation was addressed to Greystar LLC “its registered agent CT Corporation
System.” Thus, CT Corporation System is the only agent whose authority is apparent from the
face of the record to receive service. However, the affidavit of service provides service was
obtained by delivering citation to Greystar LLC “by delivering to its’ Office Manager, JAMIE
DAITCH.” Although appellee argues in its brief that the petition and citation were delivered to
Jamie Daitch because “CT refused to accept service,” appellee relies on a process server’s
–8–
affidavit attached to her appendix that is not proper evidence before this court for consideration.
See Perry, 741 S.W.2d at 534.
Because the record shows the person who accepted service was not the entity stated on
the citation, the service of process is fatally defective. Pharmakinetics Labs, 717 S.W.2d at 706.
Without affirmatively showing on the face of the record that appellant was properly served, the
trial court had no personal jurisdiction to enter a default judgment. Having found error on the
face of the record, we need not address appellant’s second argument regarding whether Jamie
Daitch had authority to accept service. We sustain appellant’s sole issue.
Conclusion
The judgment of the trial court is reversed and the cause is remanded for further
proceedings.
/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE
130162F.P05
–9–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GREYSTAR, LLC, Appellant On Appeal from the 68th Judicial District
Court, Dallas County, Texas
No. 05-13-00162-CV V. Trial Court Cause No. DC-12-06022.
Opinion delivered by Justice O’Neill.
MELISSA ADAMS, Appellee Justices Myers and Brown participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
It is ORDERED that appellant GREYSTAR, LLC recover its costs of this appeal from
appellee MELISSA ADAMS.
Judgment entered this 18th day of March, 2014.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
–10–