IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 22, 2004
______________________________
WILLIAM H. FORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2003-486284; HON. DRUE FARMER, PRESIDING
________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant William H. Ford, by and through his attorney, has filed a motion to dismiss this appeal because he no longer desires to prosecute it. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.
Brian Quinn
Justice
Do not publish.
YLE="font-size: 10pt">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, 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Do not publish.
1. 2.