Vanscot Concrete Co. v. Bailey

843 S.W.2d 193, 1992 Tex. App. LEXIS 2975, 1992 WL 346874

• Court: Court of Appeals of Texas
• Decided: November 20, 1992
• Docket: No. 2-91-222-CV
• Status: Published

Opinions

OPINION

FARRIS, Justice.

The issue in this case is whether or not an appeal can be brought in the name of a nonexisting appellant. We hold that it cannot and order the appeal dismissed.

This is a ghost story with two ghosts. One is the specter of limitations; neither party’s brief mentions it, but it is a specter that is never out of mind. The named appellant, Vanscot Concrete Company, is the other ghost.

Vanscot Concrete Company was merged into Tarmac Texas, Inc., on June 30, 1986, and after that did not exist. Three months later, on October 4,1986, the appellee, Wallace Bailey, Jr., was injured when concrete, being poured to form a foundation, splashed on his leg causing severe bums. The concrete which injured Bailey was delivered by a truck bearing the name “Express Pennington.” From assumed name certificates filed with the County Clerk, Bailey discovered “Express Concrete Company” and “Pennington Concrete Company” were the assumed names of Vanscot. The certificates were signed by Vanscot’s president and registered agent for service, Vance C. Minter.

On March 15, 1988, Bailey, unaware of the merger, sued Vanscot, and on April 13, citation was served on Minter as registered agent for Vanscot. On May 9, 1988, in response to the service of citation on Minter, lawyers representing Vanscot filed an answer to Bailey’s petition. The answer was a general denial and addressed the court in the first person as though Vanscot still existed. The lawyers paid a jury fee and demanded a jury trial on Vanscot’s behalf.¹ On June 22, 1990, Vanscot’s lawyers filed an amended answer and, for the first time, limitations cast its shade across the record of the case.

In the first amended original answer, Vanscot’s lawyers filed a verified plea, denying Vanscot’s corporate existence, and prayed the case be dismissed with costs. Later, a motion for summary judgment set out the circumstances of the merger. The motion for summary judgment was overruled, the case was tried to a jury, and judgment was entered in favor of Bailey and against Vanscot. A cost and superse-deas bond, naming Vanscot as principal, was filed and this appeal was perfected with Vanscot as appellant.

The appellant’s brief, naming Vanscot as appellant, contains eight points of error. Six points relate to the failure to grant a directed verdict because Vanscot did not exist when Bailey was injured. We do not address any of the points but order the appeal dismissed.

Suits can he maintained only against parties having an actual or legal existence. See Stinson v. King, 83 S.W.2d 398, 399 (Tex.Civ.App. — Dallas 1935, writ dism’d). Vanscot had no actual or legal existence when Bailey was injured or when he filed suit. Therefore, no answer was necessary because a default judgment against Vanscot would have been a nullity. Further, the judgment against Vanscot Concrete Company will not support levy of execution against the surviving corporation into which Vanscot was merged.

An answer was filed in Vanscot’s name for one reason only, to forestall Bailey discovering, before limitations ran, that he had sued a non-entity. No one was obligated to tell Bailey he had sued the wrong party, but in this case filing an unnecessary answer misled Bailey to believe that Vanscot existed when it did not. To sustain any of the points of error, which are based upon Vanscot’s nonexistence, would have the deleterious effect of discouraging candor while encouraging obstructionist tactics. See Rooke v. Jenson, 838 S.W.2d 229 (Tex.1992).

Because the appealed judgment grants only relief against a nonexistent party, there is no aggrieved party entitled to bring this appeal; therefore, it is appropriate that the appeal be dismissed. See Hunt v. Burrage, 84 S.W.2d 1098 (Tex.Civ.App. — Dallas 1935, writ dism’d); Onion v. Cain, 64 S.W.2d 418 (Tex.Civ.App. — San Antonio 1933, orig. proceeding).

Dismissal is a just disposition as well as a correct one for a reason not relevant to the issues before us. It appears from the record that the surety to the supersedeas bond is also the insurance company which insured Tarmac and employed the lawyers who represented Vanscot. Superseding the judgment was a strategic error. If the judgment had not been superseded, Bailey would have been unable to recover on his judgment regardless of the outcome of the appeal.

The appeal is dismissed.

1 . The attorneys who initially represented Van-scot in this case were not with the firm who represented Vanscot at trial or in this appeal. A motion to substitute defense counsel was filed after limitations ran. Nothing in the record indicates the attorneys who represented Vanscot knew of the merger before limitations ran. In fact, the timing of Vanscot’s motion to substitute defense counsel suggests this matter was not disclosed to the attorneys until after limitations ran.