Astro Sign Co. v. Sullivan

• Decision Date: 31 December 1974
• Docket Number: No. 880,880
• Citation: 518 S.W.2d 420
• Parties: ASTRO SIGN COMPANY, a division of Commander Board of South Texas, Inc., Appellant. v. Paul W. SULLIVAN, Appellee.
• Court: Texas Court of Appeals

Page 420

518 S.W.2d 420

ASTRO SIGN COMPANY, a division of Commander Board of South Texas, Inc., Appellant. v.Paul W. SULLIVAN, Appellee.

No. 880.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 31, 1974.

Rehearing Denied Jan. 30, 1975.

Neil Norquest, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellant.

J. W. Patterson, Jr., Cox & Patterson, McAllen, for appellee.

OPINION

YOUNG, Justice.

This is a plea in abatement case.Paul Sullivan filed a suit in the 93rd District Court of Hidalgo County to recover commissions due him as an employee.That cause was numbered B--26,371.He complained in that petition of 'Joe Norman, d/b/a Astro Signs, Division of Commander Board of South Texas, Inc.'Thereafter, Sullivan prepared an amended petition wherein Astro Sign Company, a division of Commander Board of South Texas, Inc., was clearly named as a partydefendant.On February 6, 1973 a copy of the amended petition was mailed to and subsequently received by the attorney who currently represents Joe Norman and Astro Sign Company.The amended petition, however, was not filed with the district clerk until August 21, 1973.Before the actual filing of the amended petition that attorney, allegedly on behalf of Mr. Norman, conducted settlement negotiations with Sullivan's attorney.

Before Sullivan filed his amended petition with the district clerk, Astro instituted suit against Sullivan, on August 1, 1973, in the 139th District Court of Hidalgo County, cause number C--12023, to recover damages for conversion of its property and for interference with its contractual relationship with several of its employees.

At this point, we note that apparently there are now two district court suits involving three parties: Sullivan's commission suit against Norman and Astro; and Astro's conversion suit against Sullivan.

Then, on August 28, 1973, Sullivan answered the Astro suit with a plea in abatement and an alternative motion to dismiss alleging that Astro's conversion claim in its suit was a Rule 97(a),Texas Rules of Civil Procedure, compulsory counterclaim to Sullivan's claim in his suit.The trial court granted Sullivan's motion to dismiss for the reasons stated in its findings of fact and conclusions of law.Astro appeals from the judgment dismissing its suit.

In determining the propriety of the trial court's judgment, we notice two issues are raised: first, whether there was a prior pending action between appellee and appellant as required by Rule 97(a), T.R.C.P.; second, if there was a prior action pending, whether appellant's cause of action in the Astro suit arose from the same transaction or occurrence from which appellee's complaint arose in the Sullivan suit.

In resolving the first issue, we must determine whether appellee's original petition complained of Joe Norman, individually, or of Astro Sign Company, a division of Commander Board of South Texas, Inc.If, as the trial court held, the petition complained of Astro Sign Company, a division of Commander Board of South Texas, Inc., but merely misnamed the corporation, then service upon Joe Norman who was its president was proper.Consequently, the corporation was properly made a party to said action and it was under a duty to plead such 'misnomer' in abatement.Its failure to so plead would constitute a waiver of said corporation's right to abate the lawsuit .The subsequent amendment of appellee's pleadings in the Sullivan case correctly stating the name of the corporation would relate back to the date of the original petition in that cause.The amended pleading then would not constitute a new cause of action under Article 5539b, Vernon's Ann.Civ.St.;Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840(1939);Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847(1921);Craig v. White Plaza Hotel, 289 S.W.2d 625(Tex.Civ .App.--Waco 1956, n.r.e.).

A different rule would apply if appellee is found to have sued and obtained service upon the wrong party.This different rule means that when the plaintiff discovers his error and then amends his petition to join the proper party, such amended petition is a new lawsuit and the statute of limitations is not tolled until the plaintiff files his amended petition.This rule is also applicable where the plaintiff is mistaken as to which of two corporations or persons is liable in the case.In that instance, the defendant is under no duty to notify the plaintiff of his mistake.Further, knowledge of the action by the person or corporation actually liable would not be enough to allow substitution of that party for the party who is sued but is not actually liable.Moreover, this rule is applicable even where the corporation actually sued and served with citation and the corporation which is actually liable have the same agent for service .Gillette Motor Transport Co. v. Whitfield, 160 S.W.2d 290(Tex.Civ.App.--Fort Worth 1942, n.w.h.);Cosand v. Gray Wolfe Co., 262 S.W.2d 547(Tex.Civ.App.--Galveston 1953, n.w.h.);Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214(Tex.Civ.App.--Austin 1966, n.w.h.).

About the first issue, appellant argues that Joe Norman was sued individually in Sullivan's original petition; therefore, Astro was not made a party to that suit.Consequently, appellee's first amended petition, filed August 21, 1973, does not relate back to the date of the filing of appellee's original petition.

The findings and conclusions by the trial court essential to the determination of this first issue are summarized as follows:

1.Appellee filed suit September 14, 1972, in the 93rd District Court against 'Joe Norman d/b/a Astro Signs, Division of Commander Board of South Texas, Inc.'(Finding #1).

2.Joe Norman was agent for service of Astro Sign Company, a division of Commander Board of South Texas, Inc.(Finding #28).

3.The original petition in Sullivan's suit was timely filed.(Conclusion #1).

4.Appellee's amended petition filed August 21, 1973, related back to the time he filed his original petition on September 14, 1972.(Conclusion #2).

5.Appellee's amended petition was not the beginning of a new suit against Astro, but rather the correcting of a misnomer in his original petition.(Conclusion #5).

6.The misnomer of a defendant, be it either an individual or a corporation, which cannot mislead merely entitles the defendant to abate the proceedings until the misnomer is corrected.(Conclusion #6).

Finding #1 is uncontroverted.Finding #28 is attacked in points 6 and 17 on the grounds that there is no evidence to support such finding, that such finding is against the great weight and preponderance of the evidence, and that such finding is not material .

The only evidence regarding the propriety of service upon Joe Norman is that by Mr. Patterson, attorney for appellee, who testified that he was aware that Mr. Norman was president of Astro Sign Company.Appellant did not object to that testimony nor did it attempt to controvert Mr. Patterson's testimony.This testimony amounts to more than a mere scintilla of evidence.Where there is some evidence of probative force, the finding of the trial court will not be overturned.Carriere v. Bodungen, 500 S.W.2d 692(Tex.Civ.App.--Corpus Christi 1973, n.w.h.);Mitchell's Inc. v. Nelms, 454 S.W.2d 809(Tex.Civ.App.--Dallas 1970, n.r.e.);Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 TexasL.Rev. 361(1960).

Since the only evidence relevant to the issue of whether Joe Norman was agent for service of Astro Sign Company is that which tends to prove that fact, we should sustain appellant's points only if we find such evidence so uncertain, improbable or unbelievable that it is clearly unjust to permit the judgment to stand.Calvert, supra.The direct testimony of Mr. Patterson was uncontradicted, unequivocal, and entirely probable in light of the interrogatories which Joe Norman answered which reveal that he and his wife are the sole shareholders in the appellant-corporation.Furthermore, the evidence is material to the issue of whether the appellant was served with process in the Sullivan suit.Appellant's points 6 and 17 are overruled.

The trial court's conclusion of law (1) that appellee's original petition was timely filed on or about September 14, 1972 is supported by the facts of this case and is not attacked by appellant .

The trial court concluded (5) that appellee's amended petition was not a new suit against Astro Sign Company, but such amended petition was a correction of a misnomer.This conclusion was proper.The appellee's original petition complains of 'Joe Norman d/b/a Astro Signs, Division of Commander Board of South Texas, Inc.'It is complaining of a business entity known as 'Astro Signs, Division of Commander Board of South Texas, Inc.'This is merely a mistaken name for Astro Sign Company, a division of Commander Board of South Texas, Inc.A case closely analogous to the case at bar is Hughes v . Board of Trustees, Tarrant County Junior College District, 480 S.W .2d 289(Tex.Civ.App.--Fort Worth 1972, n.r.e.).In Hughes, one Dave L. Jennings was served with process pursuant to Rule 106, T.R.C.P.The petition complained of 'David L. Jennings, also known as Dave L. Jennings'.The petition related that the defendant was a student at Tarrant County Junior College.Dave L. Jennings was a student at the college.However, Dave had a twin brother named David L. Jennings who was not a student.On appeal Dave contended that his twin, David, was served.The Fort Worth Court held that the Thomascase, supra, was not applicable and stated:

'The appellee in the instant case did not sue the wrong party.It sued the correct party under a wrong name. . . .'

In Hughes as in the case at bar, it can be argued that there were two separate persons or entities.The complete reading of the petition in each case, however, clearly identifies the party to...