Westcliffe, Inc. v. Bear Creek Const., Ltd.
| Decision Date | 29 April 2003 |
| Docket Number | No. 05-02-00808-CV.,05-02-00808-CV. |
| Citation | 105 S.W.3d 286 |
| Parties | WESTCLIFFE, INCORPORATED, Appellant, v. BEAR CREEK CONSTRUCTION, LTD., Appellee. |
| Court | Texas Court of Appeals |
Bryon L. Romine, Kessler & Collins, PC, Dallas, for appellant.
Brian Thomas Cooper, Canterbury, Stuber, Elder, Gooch & Surratt, Dallas, for appellee.
Before Justices LANG, FARRIS,1 and ROSENBERG.2
This is a restricted appeal from a noanswer default judgment in favor of Bear Creek Construction, Ltd. (Bear Creek) and against Westcliffe, Incorporated (Westcliffe) in a breach of contract and quantum meruit suit. Westcliffe asserts the default judgment must be reversed, in whole or, alternatively, as to the damages awarded, because (1) the evidence is legally and factually insufficient to support the judgment; (2) citation was not properly issued and the return of service is defective; (3) the judgment fails to contain the full names of the parties; and (4) the judgment is not supported by the pleadings. We conclude that the default judgment is not void due to invalid service or the misspelling of Westcliffe's name in the petition and citation and that the pleadings support the judgment. We further conclude that the audio tape of the default judgment hearing constitutes a record of that hearing, the civil master's failure to comply with the rules for making an electronic record and with the rules of appellate procedure was harmless, and the evidence is legally and factually sufficient to support the trial court's award of damages, attorney's fees, and statutory interest. We affirm the trial court's judgment.
Bear Creek performed work for Westcliffe on several sites in Coppell, Texas. On December 10, 2001, Bear Creek filed suit against Westcliffe, contending Westcliffe failed to pay Bear Creek for the work performed and that Bear Creek was entitled to recover from Westcliffe based on breach of contract and quantum meruit. Westcliffe did not file an answer. On February 25, 2002, the civil court master heard Bear Creek's request for a default judgment and made an electronic recording of the hearing. The master recommended Bear Creek be granted a default judgment, and on February 28, 2002, the trial court entered a default judgment against Westcliffe, awarding Bear Creek $18,810 plus attorney's fees and interest. On May 17, 2002, Westcliffe filed a notice of restricted appeal. See TEX.R.APP. P. 30.
A restricted appeal (1) must be brought within six months of the date of judgment; (2) by a party to the suit who did not participate in the trial; and (3) the error complained of must be apparent from the face of the record. TEX.R.APP. P. 26.1(c), 30; Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (per curiam); Sutton v. Hisaw & Assocs. Gen. Contractors, Inc., 65 S.W.3d 281, 284 (Tex.App.-Dallas 2001, pet. denied). The only issue in this appeal is whether there is error apparent on the face of the record. The face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Communications, 955 S.W.2d at 270.
In its second issue, Westcliffe asserts that (1) defects in the service and return of citation; (2) discrepancies in the name of the defendant in the petition and the judgment; and (3) alterations to the citation constitute error on the face of the record and render the default judgment void.
There are no presumptions in favor of proper issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam); Benefit Planners, L.L.P. v. Ren-Care, Ltd., 81 S.W.3d 855, 858 (Tex.App.-San Antonio 2002, pet. denied). If the record fails to affirmatively show strict compliance with the rules of civil procedure governing service of citation, the attempted service of process is invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex.1985) (per curiam); Benefit Planners, L.L.P., 81 S.W.3d at 858. When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Union Pac. Corp. v. Legg, 49 S.W.3d 72, 79 (Tex.App.-Austin 2001, no pet.). If proper service is not affirmatively shown, there is error on the face of the record. Primate Constr., Inc., 884 S.W.2d at 153.
However, strict compliance does not require "obeisance to the minutest detail." Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex.App.-Houston [1st Dist.] 1995, no writ); see Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex.App.-Corpus Christi 1996, writ denied). "Errors such as mistaken capitalization in the defendant's name and spelling errors too minor to raise any doubt that the correct person was served are insufficient to invalidate service." Ortiz, 926 S.W.2d at 613.
Westcliffe first contends the return is defective because its registered agent listed in the petition and on the citation was "Charles D. Johnson," but the return reflects service was on "Westcliff, Inc., by delivering to Charles Johnson, reg. agent." The return of service is prima facie evidence of the facts asserted therein. Primate Constr., Inc., 884 S.W.2d at 152; Dolly v. Aethos Communications Sys., Inc., 10 S.W.3d 384, 388 (Tex.App.-Dallas 2000, no pet.). Accordingly, the petition, citation, and return establish Westcliffe was served with Bear Creek's petition through Westcliffe's registered agent. The omission of the initial "D" from the return does not invalidate this service. See Ortiz, 926 S.W.2d at 612 (); Stephenson v. Corp. Servs., Inc., 650 S.W.2d 181, 184 (Tex. App.-Tyler 1983, writ ref'd n.r.e.) (); Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394, 396 (Tex.Civ. App.-Fort Worth 1981, writ ref'd n.r.e.).
Westcliffe next argues the petition and citation name the defendant as "Westcliff, Incorporated" while the judgment was entered against "Westcliffe, Incorporated." A default judgment is not rendered void when a defendant is served under the wrong name but is not misled or placed at a disadvantage by the pleadings and citation. Orange Grove Indep. Sch. Dist. v. Rivera, 679 S.W.2d 482, 483 (Tex. 1984); Aavid Thermal Techs. v. Irving Indep. Sch. Dist., 68 S.W.3d 707, 710 (Tex. App.-Dallas 2001, no pet.); Mantis v. Resz, 5 S.W.3d 388, 391 (Tex.App.-Fort Worth 1999, pet. denied), overruled on other grounds by Sheldon v. Emergency Med. Consultants I, P.A., 43 S.W.3d 701, 702 n. 2 (Tex.App.-Fort Worth 2001, no pet.). The citation gave Westcliffe sufficient notice that it was being sued by Bear Creek for work allegedly performed by Bear Creek for Westcliffe and that Westcliffe's failing to answer could result in default judgment. Therefore, the omission of the letter "e" from Westcliffe's name in the original petition and the citation did not render the default judgment void.
Westcliffe finally argues the address on the face of the citation was altered without court authorization from "Medway" to "Midway." The process server was authorized to serve citation on Westcliffe wherever Westcliffe could be found. Garcia v. Gutierrez, 697 S.W.2d 758, 760 (Tex.App.-Corpus Christi 1985, no writ). Accordingly, the correction of a typographical error in the address where Westcliffe could be found and served did not invalidate service.
There is no error apparent on the face of the record in the service and return of citation on Westcliffe. We overrule Westcliffe's second issue.
In its third issue, Westcliffe contends the judgment is defective because it does not contain the full names of the parties as stated in the pleadings. Westcliffe specifically complains judgment was entered against "Westcliffe, Incorporated" while the petition named "Westcliff, Incorporated" as the defendant. However, where, as here, the doctrine of idem sonans applies, the misspelling of the defendant's name does not require reversal of a default judgment. Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex.App. San Antonio 1987, no writ); see Mantis, 5 S.W.3d at 391; Chumney v. Craig, 805 S.W.2d 864, 866 (Tex.App.-Waco 1991, writ denied) (). The misspelling in the petition and citation did not render the default judgment void. Cockrell, 737 S.W.2d at 140. We overrule Westcliffe's third issue.
In its fourth issue, Westcliffe argues the allegations in Bear Creek's pleadings are insufficient to support the default judgment. A petition will support a default judgment unless (1) the cause of action pleaded is not within the jurisdiction of the court; (2) the petition fails to give fair notice of the claims being asserted; or (3) the petition shows the claim is invalid. Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988); Konkel v. Otwell, 65 S.W.3d 183, 188 (Tex. App.-Eastland 2001, no pet.). Westcliffe contends the allegations in Bear Creek's petition are conclusory and fail to state all the essential elements of the claims. We will review...
To continue reading
Request your trial
-
In re K.K.
...pet.) (noting that an appeal can be abated if trial court files untimely findings and appellant can show harm); Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 292 (Tex.App.-Dallas 2003, no pet.) (appeal had been abated for trial court to hold hearing on accuracy of master's a......
-
Michael Dodd & 3D Global Solutions, Inc. v. Savino
...an element of the cause of action is not specifically alleged.” Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993); Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 292 (Tex.App.-Dallas 2003, no pet.); see alsoTex.R. Civ. P. 45(b) (“That an allegation be evidentiary or be of legal ......
-
Fidelity & Guar. Ins. v. Drewery Const. Co., 12-04-00084-CV.
...the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex.App.-Dallas 2003, no pet.). However, strict compliance does not require "obeisance to the minutest detail." Herbert ......
-
Indus. Models, Inc. v. SNF, Inc.
...do not, comparably to this case, concern a complete absence of information required by the rules. See, e.g., Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290-91 (Tex. App.—Dallas 2003, no pet.); Color Smart, Inc. v. Little, No. 04-00-00294-CV, 2001 WL 1230526, at *2 (Tex. A......