NO. 07-01-0489-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 1, 2002
______________________________
EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
Appellant
v.
DAVID FISH, INDEPENDENT ADMINISTRATOR OF
THE ESTATE OF SUSAN BEACH FISH, DECEASED,
Appellee
_________________________________
FROM THE 64th DISTRICT COURT OF HALE COUNTY;
NO. A-31570-0105; HON. JACK MILLER, PRESIDING
_______________________________
Before BOYD, C.J., QUINN and REAVIS, JJ.
Equitable Life Assurance Society of the United States (Equitable) initiated this
restricted appeal to reverse the default judgment entered against them and in favor of
David Fish (Fish), independent administrator of the estate of Susan Beach Fish, deceased.
The grounds urged on appeal purportedly warranting reversal are two. Specifically,
Equitable contends that entry of the judgment was error because Fish failed to state (in its
live pleading) a cause of action upon which relief could have been granted and the return
of service was defective.1 We reverse the default judgment.
The record reveals that citation was issued. The entity designated to be served was
“Equitable Life Assurance Society of the United States by serving registered agent: Paula
Holderfield[,] 12377 Merit Drive, Suite 1800[,] Dallas, Tx 75251.” The officer’s return of
service discloses that citation was served “at 12377 Merit Dr #1500 within the County of
Dallas at 1:40 o’clock pm [sic] on the 16th day of July, 2001, by delivering to the within
named Paula Holderfield in person . . . .” (Emphasis added). As can be seen, the suite
number differed between the designation of the person to be served and the designation
of the person who was served. So too did the name of the entity to be served differ. While
the citation was directed to “Equitable Life Assurance Society of the United States by
serving registered agent: Paula Holderfield,” the return identified “Paula Holderfield”
without reference to her capacity as registered agent of the defendant. Given the
discrepancy between the name of the party to whom the citation was directed and the
name of the individual upon whom it was served, the “original return fails absolutely to
show service on the defendant . . . .” Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d
789, 793 (Tex. App.--Houston [1st Dist.] 1999,no pet.) (holding that because the return
stated that citation was served on “‘James Barker’” when the citation was directed to
“Barker Construction’s registered agent ‘James M. Barker, 128 Northwest Ellison,
Burleson, Johnson County, Texas 76028,'” the return of citation was defective); accord,
Verlander Enterprises, Inc. v. Graham, 932 S.W.2d 259, 261-62 (Tex. App.--El Paso 1995,
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Becau se the se con d gro und is dispositive, w e ad dres s on ly it.
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no writ) (holding the same). Consequently, because the return was fatally defective, the
default judgment cannot stand. Id. This coupled with the record’s disclosure that the
elements of a restricted appeal have been satisfied leads us to conclude that Equitable’s
second issue should be sustained.2 Id.
Accordingly, the judgment is reversed and the cause is remanded.
Brian Quinn
Justice
Do not publish.
2
Under Texas Rule of Appellate Procedure 26.1(c) and 30, a party who 1) has not participated in the
hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion,
request for findings of fact, or notice of appeal and 2) subsequently files a notice within six months of the
judgment may take a restricted appeal. The record at bar does not disclose that Equitable participated in the
hearing from which judgment arose or filed the documents m entioned by Rule 30. However, it does reveal
that Equitable tendered a notice of appeal approximately three months after the default judgment was signed.
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