A plaintiff sued a defendant for breach of contract. Instead of serving the defendant, the plaintiff served the Secretary of State. As the time for answering lapsed, the trial court sent notice of dismissal to the parties (according to Texas Rule 165a ) warning them of dismissal if no answer was filed by a specified deadline.

When the deadline passed with no answer, the court dismissed the case for want of prosecution. After the dismissal, the defendant’s attorney received notice that the Secretary of State had been served with the underlying lawsuit. A few days later, the court reinstated the suit sua sponte and eventually entered a default judgment in the plaintiff’s favor.

Was the defendant properly served?

The Fifth Court of Appeals, in DC Controls, Inc. v. UM Capital, L.L.C., explained that service after a case has been dismissed for want of prosecution is defective. Because the defendant did not receive notice until after the court dismissed the suit, regardless of the fact that the court reinstated the suit days later, the Court of Appeals held that service was defective and an error apparent on the face of the record, and thus reversed the default judgment and remanded the case for further proceedings.