Gibraltar Savings Ass'n v. Kilpatrick

770 S.W.2d 14, 1989 Tex. App. LEXIS 558, 1989 WL 25944
CourtCourt of Appeals of Texas
DecidedMarch 21, 1989
Docket9683
StatusPublished
Cited by4 cases

This text of 770 S.W.2d 14 (Gibraltar Savings Ass'n v. Kilpatrick) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibraltar Savings Ass'n v. Kilpatrick, 770 S.W.2d 14, 1989 Tex. App. LEXIS 558, 1989 WL 25944 (Tex. Ct. App. 1989).

Opinions

CORNELIUS, Chief Justice.

Gibraltar Savings Association appeals by writ of error from an adverse default judgment. It contends that the judgment is invalid because of improper service of citation; insufficiency of evidence to establish a causal nexus between the event sued on and the damages; insufficiency of the evidence establishing the amount of damages; and the judgment is interlocutory. We overrule all points and affirm the judgment.

The suit arose out of the sale of a shopping center from Gibraltar to Wade Kilpa-trick. Kilpatrick discovered that a previous owner had conveyed two perpetual easements across the property, which had not been revealed or excepted in Kilpa-trick’s deed.

In his petition Kilpatrick alleged that Gibraltar warranted and falsely represented that it had good title to the property free of [16]*16easements; that Kilpatrick relied on the representations; that the representations were willful, malicious, and wanton; that the property’s market value decreased because of the easements; and that the price paid for the property was based on its value without the easements. Gibraltar failed to answer Kilpatrick’s suit. Its default constituted an admission of all the allegations in Kilpatrick’s petition. Stra, Inc. v. Seafirst Commercial Corp., 727 S.W.2d 591 (Tex.App.-Houston [1st Dist.] 1987, no writ).

A writ of error is but another mode of appeal. Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Tex.R.App.P. 45. Where available, it affords review of the entire trial proceedings the same as an ordinary appeal. Reference may be had to all matters shown by the record, including the statement of facts, in testing the validity of the judgment. First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640 (Tex.App.-Dallas 1987, no writ); Morales v. Dalworth Oil Co., 698 S.W.2d 772 (Tex.App.-Fort Worth 1985, writ ref’d n.r.e.); Spears v. Brown, 567 S.W.2d 544 (Tex.Civ.App.-Texarkana 1978, writ ref’d n.r.e.).

Gibraltar first argues that the judgment is invalid because the record fails to show strict compliance with the rules respecting the service and return of citation. The presumptions ordinarily made in support of proper service do not apply when a direct attack is made on a default judgment. The record in such a case must show strict compliance with the Rules of Civil Procedure respecting service of process. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Dan Edge Motors, Inc. v. Scott, 657 S.W.2d 822 (Tex.App.-Texarkana 1983, no writ).

Gibraltar makes four attacks on the service and return of process. The first attack contends that proper service was not shown because the constable’s return stated that the “writ” was “executed” rather than the citation was served. This contention is without merit. A citation is a writ, and a statement that it was “executed” by delivering a copy to the proper person to be served is sufficient to show service. Houston Pipe Coating v. Houston Freightways, 679 S.W.2d 42 (Tex.App.Houston [14th Dist.] 1984, writ ref’d n.r.e.). The second attack contends that the record fails to show proper service because the defendant named in the petition and the party to whom citation was issued was “Gibraltar Savings Association,” while the return shows that citation was delivered to “Gibraltar Savings Association, a corporation (emphasis added).” Gibraltar asserts that the words “a corporation” indicate that an entity other than the defendant was served. See Brown-McKee, Inc. v. J.F. Bryan & Associates, 522 S.W.2d 958 (Tex.Civ.App.-Texarkana 1975, no writ).

The constable’s return is a preprinted form with blanks to be filled in upon its execution. The blank for the name of the party served is filled in by handwriting as “Gibraltar Savings Association.” Following the blank, the preprinted form continues with the words “a corporation.” The printed words “a corporation” were not marked out. Handwritten notations on the return are entitled to more weight than preprinted language and will control in case of a conflict. Payne & Keller Co. v. Word, 732 S.W.2d 38 (Tex.App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.); Maritime Services, Inc. v. Moller S.S. Co., 702 S.W.2d 277 (Tex.App.-Houston [1st Dist.] 1985, no writ); Houston Pipe Coating v. Houston Freightways, supra. The constable’s handwritten language indicating service on Gibraltar Savings Association is sufficient to show service on the correct entity. Moreover, unlike the return in Brown-McKee, Inc. v. J.F. Bryan & Associates, supra, the word corporation in this case does not purport to be part of the defendant’s name, but rather a designation of its legal nature. Gibraltar argues that it is not a corporation, but is a savings association. However, it states in its petition for writ of error in this Court that it is a Texas savings and loan association formed pursuant to Tex.Rev.Civ.Stat.Ann. art. 582a (sic) (should be Article 852a) in 1921. Savings and loan associations organized pursuant to the Texas savings and loan law are corporations. Prudential Building & [17]*17Loan Ass’n v. Shaw, 119 Tex. 228, 26 S.W. 2d 168 (Comm’n App.1930, opinion adopted); Tex.Rev.Civ.Stat.Ann. art. 852 et seq. (Acts 1st C.S.1913), now Tex.Rev.Civ. StatAnn. art. 852a, § 3.02 (Vernon 1964), §§ 2.01, 2.08, 2.10, 2.11, 4.01,10.01 (Vernon Supp. 1989); see also, Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747 (1961); Gerst v. Nixon, 399 S.W.2d 845 (Tex.Civ.App.-Austin), aff'd, 411 S.W.2d 350 (Tex.1966). Additionally, Gibraltar’s deed to Kilpatrick, which forms the basis of this suit and which was introduced in evidence in the trial court, states that it is acknowledged by Charles Ackerman, senior vice-president of “GIBRALTAR SAVINGS ASSOCIATION, a Texas corporation, on behalf of said corporation.”

The third attack contends that the wrong agent for service was served. The citation was directed to J. Livingston Kos-berg, chief executive officer, but the return shows it was received by Milton Cowden, senior vice-president.

Savings and loan associations are governed by Tex.Rev.Civ.Stat.Ann. art. 852a (Vernon 1964 & Supp.1989). However, matters affecting those entities which are not covered by Article 852a are governed by the Business Corporation Act. Tex.Bus. Corp.Act Ann. art. 9.14 (Vernon 1980). Because Article 852a is silent on the manner a savings and loan association is to be served, Tex.Bus.Corp.Act Ann. art. 2.11 (Vernon 1980) controls, providing that service may be had on any vice-president.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Compaq Computer Corp. v. Albanese
153 S.W.3d 254 (Court of Appeals of Texas, 2004)
USA Custom Paint & Body Shop, Inc. v. Stewart
856 S.W.2d 227 (Court of Appeals of Texas, 1993)
Gibraltar Savings Ass'n v. Kilpatrick
770 S.W.2d 14 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
770 S.W.2d 14, 1989 Tex. App. LEXIS 558, 1989 WL 25944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibraltar-savings-assn-v-kilpatrick-texapp-1989.