The Third Court of Appeals issued an interesting memorandum opinion this morning affirming a trial court’s default judgment in a case where a registered agent refused to accept service of process in a premises case.
In the underlying case, the plaintiff hired two separate process servers who tried unsuccessfully to serve a restaurant’s registered agent, both personally and via certified mail (the certified mailings were returned marked “refused,” and an employee of the agent apparently told the process server that the agent would not come out and accept service). When all that failed, the plaintiff served via the Secretary of State, who sent the petition to the registered agent via registered mail. When that mailing was also returned marked “refused,” and when the Defendant restaurant never answered, the plaintiff took the Secretary of State’s certificate to the courthouse and got a default judgment.
In a motion for new trial, the agent argued that he did not instruct an employee to refuse service, and that he had to refuse certified mail since his employees kept losing it when he accepted it. The Third Court of Appeals found that the trial judge was absolutely correct in noting that a registered agent in Texas ought not refuse to accept certified mail.
The opinion provides a good example of how to serve a recalcitrant registered agent, as well as how to prove up the recalcitrance in support of a default judgment. It’s also probably a nice cautionary tale in the event a client calls and says (in a whisper) “there’s a process server in my reception area.” Finally, I’d like to take a moment to plug the process server we use. We switched to Professional Civil Process about six months ago and have been completely impressed with their work. Don’t hesitate to email me if you’d like their contact information.
Katin v. Loesch, Cause No. 03-05-00412 (Tex. App. – Austin 2006) (mem. opinion).
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litigation, Third Court of Appeals, law
