Texas Industries, Inc. v. Sanchez, 18547

• Decision Date: 13 March 1975
• Docket Number: No. 18547,18547
• Citation: 521 S.W.2d 133
• Parties: TEXAS INDUSTRIES, INC., Appellant, v. Henry SANCHEZ, Appellee.
• Court: Texas Court of Appeals

Page 133

521 S.W.2d 133

TEXAS INDUSTRIES, INC., Appellant, v. Henry SANCHEZ, Appellee.

No. 18547.

Court of Civil Appeals of Texas Dallas.

March 13, 1975.

Rehearing Denied April 3, 1975.

Stewart DeVore, Jr., Philip C. McGahey, Bagby, McGahey, Ross & DeVore, Arlington, for appellant.

Lee Arnett, Brownsville, for appellee.

GUITTARD, Justice.

In this bill-of-review proceeding the trial court set aside its earlier judgment in favor of appellant Texas Industries, Inc., against appellee Henry Sanchez on the ground that Sanchez was never served with citation. We affirm because we hold: (1) that the evidence supports the trial court's implied finding that the officer did not actually deliver the citation to defendant Sanchez; (2) that in absence of proper service the defendant was not required to show that he was prevented from answering by fraud; and (3) that the question of delivery of citation to the defendant was not raised or decided on writ of error from the earlier judgment.

1. Delivery of Citation

Although appellant requested the trial judge to file findings of fact, and none appear in the record, appellant makes no complaint concerning the lack of findings. Consequently, we must presume that the judge resolved all questions of fact in favor of appellee Sanchez. We find the evidence sufficient to support an implied finding that the citation was not delivered to Sanchez in person, as required by Texas Rules of Civil Procedure, rule 106.

The original suit was brought by appellant to recover a debt against Gregg Asphalt Company, Inc. Henry Sanchez was served with citation as president of Gregg Asphalt. Appellant then filed an amended petition in which it sought to pierce the corporate veil of Gregg Asphalt and hold Sanchez individually liable for the debt. Citation for Sanchez, individually, with the amended petition attached, was sent to the sheriff of Cameron County and was assigned to deputy Robert Hernandez for service. Hernandez testified that he called Sanchez on the telephone and told him that he 'had some more papers involving Gregg Asphalt,' and Sanchez said to 'go ahead and take them to the office.' After attempting unsuccessfully to contact Sanchez as his office, Hernandez happened to see Sanchez at the courthouse and told him he 'has some papers to serve.' Hernandez then went to the sheriff's office to get the papers. After he picked them up he found Sanchez in a room near the sheriff's office. Sanchez, who was a member of the State Legislature, was accompanied by two news reporters and was talking on the telephone. Hernandez testified that he 'filled out the citation' and put it down on a table next to Sanchez. The citation was in an unsealed envelope with no writing on it except, perhaps, the 'attorney's heading.' Hernandez admitted that he said nothing further to Sanchez because he assumed Sanchez knew what the papers were.

Sanchez testified that he remembered a telephone call from Hernandez several days before the occasion in question, but did not recall that anything was said about a citation. He remembered being in the courthouse on the occasion in question and talking to reporters, but he did not recall seeing Hernandez. Sanchez testified that he was in the 'press room' next to the sheriff's office and made several telephone calls to Austin in an attempt to get information for the reporters. He said he received no papers pertaining to Gregg Asphalt and had no recollection of anyone dropping something before him on the table as he talked.

The reporters who were with Sanchez at the time of the alleged service were called as witnesses. They testified that as they and Sanchez were walking towards the press room, Hernandez spoke to Sanchez and said 'I am glad I saw you. You saved me a trip.' They said that later when Sanchez was talking on the telephone, Hernandez walked into the room, put an envelope on the table, and left without saying a word. According to these witnesses, Sanchez had his head down and did not interrupt his telephone conversation. Neither of the reporters saw Sanchez with the envelope in his hand, but they did see him make some notes while talking, probably on the envelope which was dropped before him.

Appellant contends that Sanchez was validly served with process because the undisputed facts would put a reasonable man on notice that he was being served. We conclude that the 'reasonable man' standard should not be applied here. No decision is cited applying that standard unless defendant has taken some action by way of avoidance of service, thus indicating that he recognized that service was being attempted. The cases cited by appellant are of that sort. See Ex parte Ball, 2 Cal.App.2d 578, 38 P.2d 411 (1934); Haney v. Olin Corp., 245 So.2d 671 (Fla.App.1971); Nielsen v. Braland,264 Minn. 481, 119 N.W.2d 737 (1963).

We need not go so far as to accept appellee's contention that in the absence of physical refusal to accept service, the evidence must show that the officer actually put the citation in the defendant's hand. Here, it is only necessary to hold, and we do hold, that the evidence must at least show that the defendant was informed of the nature of the process and of the fact that service was being attempted. Dosamantes v. Dosamantes, 500 S.W .2d 233, 237 (Tex.Civ.App.--Texarkana 1973, writ dism'd). The testimony of Sanchez and of the two reporters is amply...