Mylonas v. Texas Commerce Bank-Westwood

678 S.W.2d 519
CourtCourt of Appeals of Texas
DecidedMay 24, 1984
DocketB14-83-263CV
StatusPublished
Cited by30 cases

This text of 678 S.W.2d 519 (Mylonas v. Texas Commerce Bank-Westwood) 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
Mylonas v. Texas Commerce Bank-Westwood, 678 S.W.2d 519 (Tex. Ct. App. 1984).

Opinion

OPINION

ELLIS, Justice.

Appellant, E.G. Mylonas, appeals from a default judgment against him and in favor of appellee, Texas Commerce Bank-West-wood, for $162,142.62. The basis for liability was debts allegedly due and owing ap-pellee from corporate defendants and guaranteed by appellant. The district court entered an Interlocutory Default Judgment against Mylonas on June 15, 1981. On January 14, 1983, the judgment was severed and made final. Mylonas did not answer or otherwise appear until after final *521 judgment at which time he filed-postjudgment motions asking the district court to quash the citation and vacate entry of the default judgment, or alternatively, to grant a new trial. The court denied all of these motions and granted appellee’s motion to amend a return of service. Appellant appeals from the entry of the default judgment and from the denial of his post judgment motions. We affirm.

Appellant brings three points of error on appeal. In his first point of error, appellant argues that the trial court lacked personal jurisdiction over appellant because appellant was not served in accordance with the court’s order for substituted service. Point of error two complains that the court erred in authorizing substituted service because appellee did not show that personal service was impractical as required by Rule 106(b) of the Texas Rules of Civil Procedure. Finally, point of error three claims that the trial court erred in granting appellee’s motion to amend the return of service. We disagree with these points of error and affirm.

On May 28, 1980, appellees filed this action seeking to recover debts based on promissory notes guaranteed by appellant. Appellee’s Original Petition asserted that appellant could be served process at his residence, 734 Arlington, Houston, Harris County, Texas 77007. The constable’s office was unable to serve the citation within 90 days from issuance; therefore, the citation was returned expired and unexecuted.

Appellee then filed a motion for substituted service pursuant to Rule 106(c) asking the trial court to authorize service on any person over age 16 at appellant’s “usual place of business which is 5271 Memorial Way # 204 Houston, Harris County, Texas.” In support of this motion appellee offered an affidavit by Deputy Constable R. Rivera, who had previously tried to serve appellant.

The pertinent portion of that affidavit reads as follows:

I have personally made five (5) attempts to secure personal service upon Defendant herein, E.G. Mylonas, between August 24,1980, and September 24, 1980. I have attempted this service at Defendant’s residence at 734 Arlington and at Defendant’s place of business at 5271 Memorial Way, # 204. I have verified on September 22, 1980, that 5271 Memorial Way, # 204, is Defendant’s usual place of business. This verification has come from Defendant’s personal secretary. My partner was told that his wife was taking care of him. I was then told on September 24, 1980, by his wife that she and Defendant were separated and he was no longer residing at this address. Accordingly, I have reason to believe, and do believe, that it is impracticable to secure personal service of citation on Defendant herein by delivering to the Defendant, in person, a true copy of the citation with the date of delivery endorsed thereon and with a copy of the Petition attached thereto.

On October 8, 1980, the trial judge entered an order authorizing delivery to “any person above the age of sixteen (16) years of age at the usual place of business of the Defendant [appellant], 5271 Memorial Way, # 204, Harris County, Texas.”

This address was not within the area covered by Deputy Constable Rivera; therefore, the citation was turned over to Constable James Cecil Armstrong, who covered the area. Constable Armstrong then attempted to serve the citation at 5271 Memorial Way, # 204. Upon going to Memorial Way, the constable determined that there was no such address as “5271 Memorial Way.” Thereafter, on October 16, 1980, without further order of the court, he proceeded to 5271 Memorial Drive, which he found was actually appellant’s usual place of business. There, he left the citation for appellant with Deborah Wimer, an employee of Certified Engineering, Inc., a corporation of which appellant was a stockholder. On the return of service, the constable wrote that he delivered the citation to “5271 Memorial.”

Appellant did not answer or otherwise appear until after final judgment. On February 14, 1983, he filed his Original An *522 swer, a Motion to Quash Service of Citation and Vacate Entry of Default Judgment, and Alternative Motion for New Trial.

At a hearing on these motions, Deputy Constable R. Rivera testified that he tried to deliver the citation to appellant’s home address. The first attempt was on August 12, 1980 at 6:38 a.m., when he spoke to appellant’s wife, who told him appellant was not at home because he was hospitalized in Hermann Hospital. On the August 15, 1980, Rivera returned, and was again told that appellant was not at home. At this time, he left his card with appellant’s wife. Mrs. Mylonas, however, was not truthful. Appellant had been hospitalized for five weeks due to a broken leg, but had returned home in mid-July. During the period from July to November, appellant was at his home, basically immobilized.

Rivera made several other attempts to serve appellant. Mrs. Mylonas told the constable that she and appellant were divorced and that he no longer lived at that address.

On August 20,1980, appellant called Rivera and gave him his business address, “5271 Memorial Way, Suite 204.” Deputy Rivera made a notation of the address and telephone number on the citation.

At this hearing, appellant admitted that 5271 Memorial Drive was his usual place of business and that he received the citation delivered there.

Following the hearing, the trial judge overruled appellant’s motions, and granted appellee’s motion to amend the return of service to read “5271 Memorial Drive”, and to clarify that the citation was served pursuant to the requirements of Rule 106. Appellant then perfected this appeal.

In his second point of error, appellant alleges that the trial court erred in authorizing substituted service because appellee did not show that personal service was impractical as required by Rule 106(b). We disagree.

In order to obtain an order for substituted service, the plaintiff must show that it is impractical to secure personal service by delivery in person or by certified mail. Tex.R.Civ.P. 106; Harrison v. Dallas Court Reporting College, 589 S.W.2d 813 (Tex.Civ.App.—Dallas 1970, no writ). Because substituted service is not the preferred method, this rule requires strict compliance. Stylemark Const., Inc. v. Spies, 612 S.W.2d 654 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ).

Rivera’s affidavit showed that he made five attempts to deliver personally the citation to appellant. Further, it states that appellant’s wife told Rivera that appellant no longer lived at that address.

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

Related

Joyce Creaven v. Caroline Creaven
551 S.W.3d 865 (Court of Appeals of Texas, 2018)
Anna Maria Cancino v. Jason M. Cancino
Court of Appeals of Texas, 2016
LEJ Development Corporation and L.E. Jowell, Jr. v. Southwest Bank
407 S.W.3d 863 (Court of Appeals of Texas, 2013)
Khrysten Williams v. Asset Acceptance LLC
Court of Appeals of Texas, 2012
Taylor v. State
293 S.W.3d 913 (Court of Appeals of Texas, 2009)
Justin Ryan McCarthy v. State
Court of Appeals of Texas, 2009
John L. Taylor v. State of Texas
Court of Appeals of Texas, 2009
Dawson v. Briggs
107 S.W.3d 739 (Court of Appeals of Texas, 2003)
Kelly Renee Dawson v. Carla K. Briggs
Court of Appeals of Texas, 2003
Stankiewicz v. Oca
991 S.W.2d 308 (Court of Appeals of Texas, 1999)
Barker CATV Construction, Inc. v. Ampro, Inc.
989 S.W.2d 789 (Court of Appeals of Texas, 1999)
Walker v. Brodhead
828 S.W.2d 278 (Court of Appeals of Texas, 1992)
Martinez v. Wilber
810 S.W.2d 461 (Court of Appeals of Texas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
678 S.W.2d 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mylonas-v-texas-commerce-bank-westwood-texapp-1984.