Gene Branscome and Sunchase Joint Venture v. Collecting Bank, N.A. ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-198-CV





GENE BRANSCOME AND SUNCHASE JOINT VENTURE,

APPELLANTS

vs.





COLLECTING BANK, N.A.,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 479,673, HONORABLE WILL WILSON, JUDGE

PER CURIAM

Appellants Gene Branscome and Sunchase Joint Venture (Sunchase) seek review by petition for writ of error of a default judgment rendered by the district court of Travis County in favor of appellee Collecting Bank, N.A. We will reverse the judgment and remand the cause.

In their first point of error, appellants contend that the district court erred in rendering the default judgment because the service and return of citation was fatally defective. Appellants argue that the record does not reflect that the issuance, service and return of citation complied with the applicable law.

On February 21, 1990, the Bank filed suit against appellants and Richard C. Lindemann, Inc. ⁽¹⁾ to recover amounts due on two promissory notes. In the Bank's original petition, citation was directed to Gene Branscome, individually and as a joint venturer in Sunchase, at 4721 Garth, Baytown, Texas 77520. When neither Branscome nor Sunchase was able to be served, the Bank filed a motion for substituted service, Tex. R. Civ. P. Ann. 106(b) (Supp. 1991), ⁽²⁾ alleging that service on "Gene Branscombe" was unsuccessful and that "Branscombe" could be served by leaving copies of the citation and petition with anyone over the age of sixteen or by attaching the copies to the door of his usual place of business. The motion was supported by the affidavit of the deputy constable who had attempted service. The trial court then entered its order providing for service on "Gene Branscombe" by leaving a copy of the citation and petition with a person over the age of sixteen at 4721 Garth, Baytown, Texas 77520, his usual place of business or by attaching the copies to the door of his usual place of business. Neither the motion nor the order specifically referred to service of citation on Sunchase.

Citations for both appellants were then issued and directed to "Gene Branscome." The returns of citation show service on a person over the age of sixteen at the address given in the district court order. When neither appellant answered, the district court, on May 22, 1990, rendered judgment that the Bank, recover from appellants, the amount of $669,127.68 on the notes; attorney's fees in the amount of $2,500.00; interest and costs. See Tex. R. Civ. P. Ann. 239 (1976).

If a default judgment is attacked directly by writ of error, the record must show strict compliance with the rules regarding service of citation, manner of service, and return of process. McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965). There are no presumptions in favor of valid issuance, service and return of citation in the face of a writ of error attack on a default judgment. Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (Tex. 1985); McKanna, 388 S.W.2d at 929. Failure to show such compliance on the face of the record renders the attempted service of process invalid. Uvalde Country Club, 690 S.W.2d at 885; McKanna, 388 S.W.2d at 929-30.

In the instant cause, the trial court order provided for substituted service on "Gene Branscombe." The proper defendants, "Gene Branscome" and Sunchase, were actually served but neither was authorized to receive service by leaving a copy of the citation and petition with a person over the age of sixteen. Accordingly, the record does not reflect strict compliance with Rule 106(b). See Uvalde Country Club, 690 S.W.2d at 885.

The Bank responds that, because the addition of the single letter to Branscome's name does not change its pronunciation or mislead Branscome, the doctrine of idem sonans applies. Cockrell v. Estevez, 737 S.W.2d 138 (Tex. App. 1987, no writ). When an intended defendant is sued under an incorrect name, jurisdiction is proper, after service on the defendant under the misnomer, if it is clear that no one was misled. Orange Grove Ind. School District v. Rivera, 679 S.W.2d 482, 483 (Tex. 1984); Baker v. Charles, 746 S.W.2d 854, 855 (Tex. App. 1988, no writ). The issue here, however, is not whether appellants were misled but whether the record shows strict compliance with the rules relating to the issuance, service and return of citation. See De La Fuente v. Castillo, 740 S.W.2d 113, 114 (Tex. App. 1987, no writ); Cockrell, 737 S.W.2d at 139-40 (appellant claimed only that the improper spelling of his name voided the citation).

Accordingly, the supreme court opinion in Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990), controls the disposition of this cause. In Wilson, the district court authorized substitute service on the defendant without an affidavit or other evidence as Rule 106(b) requires. The defendant received the citation and plaintiff's petition but did not answer. The plaintiff acknowledged that service on defendant was defective but argued that the default judgment should stand because the defendant received service and knew of the pendency of the suit. The court disagreed and held that "a default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit." Id. at 837.

The record here does not show that the person who received service, Gene Branscome, was the person authorized to receive service in the order of substituted service. Because appellants were not served in strict compliance with Rule 106(b), we sustain appellants' first point of error. Id.; Uvalde Country Club, 690 S.W.2d at 885. We need not address appellants' remaining arguments.

The judgment of the district court is reversed and the cause remanded for a new trial.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Reversed and Remanded

Filed: June __, 1991

[Do Not Publish]

1. Richard C. Lindemann, Inc. was never served with citation and, so, was not a party in the trial court and is not before this Court.

2. Rule 106(b) provides:

Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service

(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or

(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.