Payne & Keller Co. v. Word

732 S.W.2d 38
CourtCourt of Appeals of Texas
DecidedMay 7, 1987
DocketA14-86-712-CV
StatusPublished
Cited by33 cases

This text of 732 S.W.2d 38 (Payne & Keller Co. v. Word) 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
Payne & Keller Co. v. Word, 732 S.W.2d 38 (Tex. Ct. App. 1987).

Opinion

OPINION

CANNON, Justice.

This is an appeal by writ of error from a default judgment. In five points of error, appellant complains that: (1) the return of citation is defective; (2) the damages awarded by the judgment are not supported by the pleadings or the evidence; and (3) the motion for new trial was erroneously denied. We agree that some of the damages are unsupported by the pleadings, and, accordingly, modify the judgment of the court below and affirm it as modified.

The cause of action arose from an automobile collision between appellee, Peggy Word, and Richard H. Jones (Jones). Ap-pellee filed suit against appellant, Payne & Keller Company, on June 4, 1985, alleging that her car was struck from the rear by Jones’s vehicle. Further, she alleged, at the time of the collision, Jones was in the course and scope of his employment for appellant. Appellee pleaded as damages her medical expenses; past and future lost wages; past and future physical pain and mental anguish; court costs; and interest on the judgment.

The petition was served on appellant’s registered agent, Philippe Petitfrere, on June 19,1985. Appellant, however, did not answer. On January 10, 1986, appellee filed a supplemental petition asking for prejudgment interest. This supplemental petition was not served on appellant.

On January 24, 1986, a default judgment was entered against appellant for $285,-630.25 plus post judgment interest and court costs. The judgment recited that the cause of action was unliquidated and that appellee was entitled to damages upon *40 good and sufficient evidence presented to the court. Included in the judgment was the sum of $35,630.25 for prejudgment interest. Appellant filed an untimely motion for new trial on March 27,1986, which was not granted. Appellant’s appeal by writ of error was subsequently filed.

In point of error one, appellant maintains that the default judgment is void because the constable’s return fails to state the name of the constable who executed the service of citation as required by Tex. R.Civ.P. 107. In support of this point, appellant relies on our case, Houston Pipe Coating Co., Inc. v. Houston Freightways, Inc., 679 S.W.2d 42 (Tex.App. — Houston [14th Dist.] 1984, writ ref’d n.r.e.), wherein we stated that Rule 107 requires that the return must be signed by the sheriff or constable or by a deputy who indicates for whom he or she acted as deputy. We acknowledge that Houston Pipe Coating Co., Inc. is the applicable rule of law in this case. However, contrary to appellant’s assertions, the citation and officer’s return satisfies the requirements of Houston Pipe Coating Co., Inc.

In Houston Pipe Coating Co., Inc., 679 S.W.2d at 45, we held: “In the absence of statutory direction as to the method of signing, Constable Maxon’s printed signature strictly complies with Rule 107.” Here, the citation and officer’s return was marked with a file stamp that stated:

1985 Jun 19 PM 1:57
R.C. Martinez
Constable, Precinct No. 6
Harris County, Texas

Thus we find, in accordance with the holding of Houston Pipe Coating Co., Inc., that Constable Martinez’s printed signature strictly complies with Tex.R.Civ.P. 107. Point of error one is overruled.

In point of error two, appellant complains that the return fails to correctly set forth the manner of service as required by Tex.R.Civ.P. 107 because the return indicates that the wrong individual was served in the wrong capacity. Specifically, appellant asserts that the petition and citation state that service is to be on Payne & Keller Company, by serving its registered agent, Philippe Petitfrere (Petitfrere). However, the officer’s return states that service was executed “by delivering to Phi-lipee Petitfreere defendant,.... ” Thus, appellant argues, because the registered agent’s name was misspelled by the officer, and because the word “defendant,” pre-printed on the citation and return form, appears after Petitfrere’s name, strict compliance with Tex.R.Civ.P. 107 is not shown and the default judgment is void.

In arguing for reversal on the basis of the misspelling of Petitfrere’s name by the deputy, appellant relies on Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex.1985). We find, however, that the facts in Uvalde Country Club and the cases cited therein are distinguishable from the facts before us. In Uvalde Country Club, citation was directed to Uvalde Country Club by serving its registered agent, “Henry Bunting.” The sheriff’s return on the citation showed delivery to “Henry Bunting.” However, the original petition alleged that the registered agent was “Henry Bunting, Jr.” The Texas Supreme Court stated that the record did not show that the person served with citation, “Henry Bunting,” was authorized to receive service or that he was connected with the appellant, because the petition alleged that the registered agent was “Henry Bunting, Jr.” Thus, the supreme court held, the record did not reflect strict compliance with the rules of civil procedure relating to issuance, service, and return of citation. In Faver v. Robinson, 46 Tex. 204 (1876) (cited in Uvalde Country Club), a default judgment was reversed and remanded because suit was brought against John R. Pavers, citation was issued to John R. Favers, and the return indicated that John R. Favers was served with the petition. However, a default judgment was taken against John R. Faver. The court stated that a petition, citation, and service against Favers does not warrant a judgment by default against Faver. In Hendon v. Pugh, 46 Tex. 211 (1876) (cited in Uvalde Country Club), a default judgment was reversed and remanded because the return indicated that service was on *41 “J.N. Hendon.” However, the defendant, against whom judgment was rendered, was J.W. Hendon. The court held that the return failed to show, with reasonable certainty, that the citation was served on the defendant in the suit. Clearly, in these cases, there is some uncertainty concerning whether the person against whom judgment was taken, or who was served as the registered agent, was the correct person.

Here, however, there is no uncertainty. The petition and citation both indicate that the registered agent was “Philippe Petitfrere.” The constable’s minor misspelling of Petitfrere’s name is not a sufficient indication that service was not had upon the correct person. We find that the face of the record reflects strict compliance with Tex.R.Civ.P. 107.

Further, we find no merit in appellant’s argument that the return does not reflect that Petitfrere was served in the correct capacity. In considering the record as a whole, including the original petition, the citation, and the return, we find that service was had upon appellant by delivering citation and petition to its registered agent, Philippe Petitfrere. Moreover, an affirmative showing of compliance with Tex.R.Civ.P.

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Bluebook (online)
732 S.W.2d 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-keller-co-v-word-texapp-1987.