Sutherland v. Spencer
| Decision Date | 12 August 2010 |
| Docket Number | No. 13–09–00198–CV.,13–09–00198–CV. |
| Parties | Robert SUTHERLAND, Jesse Garza and Southern Customs Paint and Body, Appellants, v. Robert Keith SPENCER, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Jon D. Brooks, Brooks, LLP, Corpus Christi, for Appellants.
Rene Rodriguez, Law Offices of Rene Rodriguez, Corpus Christi, for Appellee.
Before Chief Justice VALDEZ and Justices GARZA and BENAVIDES.
This is an appeal from the denial of a motion for new trial after a default judgment was entered in favor of appellee, Robert Keith Spencer, and against appellants, Robert Sutherland, Jesse Garza,1 and Southern Customs Paint and Body (“Southern Customs”). By one issue, comprising two sub-issues, appellants argue that the trial court abused its discretion by denying their motion for new trial. We affirm.
On January 8, 2007, Spencer took his 1965 Corvette to Southern Customs to have work performed on it. Robert and Jesse are the co-operators of Southern Customs. The parties entered into a service contract to have the work completed in two months for a total of $7,500. On June 20, 2007, Spencer paid an additional $2,500 for additional work. During the subsequent months, work was not completed and irreplaceable parts and pieces of the vehicle were lost. Spencer alleges that when the vehicle was picked up on June 29, 2007, the job was not complete, and the work was “minimal and shoddy.”
On December 18, 2008, Spencer sued appellants for violations of the Deceptive Trade Practices Act (“DTPA”). SeeTex. Bus. & Com.Code Ann. § 17.46 (Vernon Supp.2009). On the same day, service was requested, and citations were issued for each of the appellants. On December 19, 2008, a civil process server served Robert, Jesse, and Southern Customs. One citation named “Jesse Garza” as the person to be served; however, the return stated that the citation was served on “Jesse de la Garza.” The citations and returns were filed with the clerk on the same date. The deadline for answering Spencer's lawsuit was January 12, 2009. No answer was filed. On January 16, 2009, a default judgment was signed and entered against appellants. The judgment awarded Spencer $33,868.54 in unliquidated damages. The court further found that appellants' conduct was intentional and awarded $101,605.62, which is three times the economic damages, see id. § 17.50(b)(1) (Vernon Supp.2009), and attorney's fees of $10,312.50.
On February 6, 2009, appellants filed a motion for new trial. They filed an amended motion on February 19, 2009. Affidavits from Robert and Jesse were attached to the motions. The affidavits assert that Robert and Jesse received “the papers”, but did not know that any action was required. They put “the papers” on their desk and forgot about them. They did not know that they were obligated to do anything with “the papers” until they received the default judgment. The affidavits further set forth a meritorious defense on the grounds that Robert and Jesse agreed to do the job and satisfactorily performed the work. Robert and Jesse did not know that Spencer was dissatisfied with the job until they received a letter from Spencer's attorney in 2009.
On February 18, 2009, the court held a hearing on the motion for new trial. 2 Civil processor Santos Ronje testified that he had served Robert and Jesse. He stated that the documents stated that “you're sued.” A demand letter under the DTPA was also introduced into evidence, and it detailed Spencer's allegations and demands for damages. The demand letter states that if the issues were not resolved, Spencer would file a lawsuit. Robert and Jesse responded to the letter.
On February 23, 2009, Spencer filed a response to appellants' amended motion for new trial. As evidence, Spencer attached the affidavit of Santos Ronje, who stated that he served both individuals at their place of employment, that he told them that they were being sued, and that a record check of Jesse showed that he had been arrested three times.
After a hearing on March 3, 2009, the trial court denied the motion for new trial. The trial court granted a stay of execution of judgment, and this appeal ensued.
A trial court has wide discretion in denying a motion for new trial, and we will not disturb its ruling absent of an abuse of discretion. See In re A.P.P., 74 S.W.3d 570, 573 (Tex.App.-Corpus Christi 2002, no pet.) (citing Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994); Coastal Banc SSB v. Helle, 48 S.W.3d 796, 800 (Tex.App.-Corpus Christi 2001, pet. denied)). An abuse of discretion occurs if the trial court acts without any reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).
In their first sub-issue, appellants argue that the default judgment against Jesse is void because he was not properly served. Additionally, in a footnote, appellants assert, for the first time, that the default judgment against Southern Customs is void because it was not properly served.
Failure to affirmatively show strict compliance with the rules of civil procedure renders the attempted service of process invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex.1985). When a party against whom a default judgment has been entered files a motion for new trial asserting defective service, the plaintiff may present evidence to establish that the defendant has in fact been served. see Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573–74 (Tex.2006) (per curiam); see also PPI Tech. Servs. v. Christian Operating Co., No. 09–09–00022–CV, 2009 WL 2253227, at *2 (Tex.App.-Beaumont July 30, 2009, no pet.) (memo. op.). Defective service may be raised for the first time on appeal. See Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex.1990); see also Houston Precast, Inc. v. McAllen Constr., Inc., No. 13–07–135–CV, 2008 WL 4352636, at *1 (Tex.App.-Corpus Christi Sept. 25, 2008, no pet.) (memo. op.).
Appellants rely on Uvalde Country Club to complain that service was invalid. See Uvalde Country Club, 690 S.W.2d at 884–85. However, their reliance is misplaced. In Uvalde Country Club, the citation was served on Henry Bunting, but the petition identified “Henry Bunting, Jr.” as the registered agent for service of process. Id. at 885. The supreme court found that this was ineffective service. Id.; see Hendon v. Pugh, 46 Tex. 211, 212 (Tex.1876) (). The present case is distinguishable.
It is undisputed that the petition and citation named “Jesse Garza” as the defendant to be served. In his affidavit, Jesse stated that he has never used the name “Jesse Garza” and that he used either “Jesus de la Garza” or “Jesse de la Garza.” The return shows that “Jesse de la Garza” was served. Additionally, the petition and citation named “Southern Customs Paint and Body” as the party to be served, but the return reflected that “Southern Custom's [sic] By [sic] delivery to Robert Sutherland” was the party actually served. Both returns are examples of misnomer.
“Misnomer occurs when the plaintiff sued the correct party but misstates the party's name.” Rios v. Nw. Steel & Wire Co., 974 S.W.2d 932, 934 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (citing Matthews Trucking Co., Inc. v. Smith, 682 S.W.2d 237, 238 (Tex.1984)). When the correct defendant is served under the wrong name, the case is not one of misidentification but rather misnomer. Enserch Corp. v. Parker, 794 S.W.2d 2, 4–5 (Tex.1990). “The misnomer cases all require that the defendant was actually served with process and was not confused or misled by the misnomer.” Mansell v. Ins. Co. of the W., 203 S.W.3d 499, 502 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (citing N.C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 719–20 (Tex.App.-Austin 2003, pet. denied); Dezso v. Harwood, 926 S.W.2d 371, 374 (Tex.App.-Austin 1996, writ denied); Cockrell v. Estevez, 737 S.W.2d 138, 139–40 (Tex.App.-San Antonio 1987, no writ)); see Baker v. Charles, 746 S.W.2d 854, 855 (Tex.App.-Corpus Christi 1988, 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.”). “ ‘The test seems to be whether or not the right person was sued, and whether or not he was put on notice that he, and not some other person, had been sued.’ ” Brown v. Lanier Worldwide, Inc., 124 S.W.3d 883, 895 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (quoting West v. Johnson, 129 S.W.2d 811, 815 (Tex.Civ.App.-Fort Worth 1939, writ ref'd)). “A misnomer of a defendant does not render a judgment based on personal service, even one by default, void, provided the intention to sue the defendant actually served with citation is so evident from the pleadings and process that the defendant could not have been misled.” Cockrell, 737 S.W.2d at 140.
Here, Jesse does not argue that he was not served with the citation. In fact, the return demonstrates that he was served. Additionally, Jesse received a copy of the demand letter, which informed Jesse that Spencer would sue Southern Customs and Robert and Jesse as “co-operators” of Southern Customs if his demands were not met. In his affidavit attached to the motion for new trial, Jesse confirmed that he owned fifty percent of Southern Customs and that he responded to the demand letter. Jesse does not assert that he was misled by the misnomer. Ronje, the process server, in his affidavit attached to Spencer's response to appellants' amended motion for new trial, stated that Jesse told him that the name on the lawsuit was incorrect, but, when Ronje offered to take the petition and citation back,...
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Sutherland v. Spencer
...defective service, and that Southern Customs was not entitled to a new trial because it failed to satisfy the first Craddock element. 377 S.W.3d 1, 5–6 (Tex.App.-Corpus Christi–Edinburg 2010). Because Southern Customs asserted facts that, if true, negate intentional or consciously indiffere......