NO. 07-01-0489-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JULY 1, 2002

______________________________ EQUITA BLE LIF E ASSURA NCE SOCIE TY OF THE UNITEDSTATES Appellant
v. DAVID FISH, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF SUSAN BEACH FISH , DECEASED, Appellee

_________________________________ FROM THE 6 4th DIST RICT COURT OF HALE COU NTY; NO. A-31570-0105; HON. JACK MILLER, PRES IDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Equitable Life Assurance S ociety of the U nited S t ates (Equitable) initiated this restricted appeal to reverse t he defaul t judg ment entered ag ainst them a nd in favor of David Fish (Fi sh), independent administrator of the estate of Susan Beac h Fish, deceas ed. The grounds u rged on ap peal pu rported ly warranting reversal are t wo. Sp ecif icall y, Equitable contends that entry of the judgment w as error because Fish failed to state ( in its1 Be cau se th e se con d gro und is disp ositive, w e ad dres s on ly it. 2 live pleading) a cause of action upon which relief could have been granted and the return of service was defective. 1 We reverse the default judg ment. The record reveals that citation w

as issued. The entity des ignated to be s erved was “Equitable Life Assurance S ociety of the United States

by serving registered agent: Paula Holderfield[,] 12377 Merit Dr ive, Sui te 1800[,] Dall as, Tx 75251.”The officer’s ret urn of service discloses that citation was served “at 12377 Merit Dr #1500 w ithin the Count

y of Dallasat 1:40 o’cloc k pm [sic] on t he 16th day of Jul y, 2001, by delivering to the within named Paula Holderfield in person . . . .” (Emphas is added). As can be seen, the s uite number differed between the des ignation of the person to be s erved and the designation of the person w ho wasserved. So too did the name ofthe entity to be served differ. W hile the citation w

as directed to “Equitabl e Life Assurance S ociety of the U nited Sta tes by serving register

ed agent: Paul a Holderfiel d,” the return identified “Paula Holder field” without reference to her capacity as re gistere d agent of the defendant. G iven the discrepancybetween the name of the party to whom the citatio n was dir ected and the
name of the indivi dual upon w hom it was se rved, the “ original return fails absolutely to show service on the defendan t . . . .” Barker CATV Const., Inc. v. Ampro, Inc. , 989 S.W.2d 789, 793 (Tex. App.
- -Hou ston [1st Dist.] 1999,no pe t.) (holding that because the return stated that citation wass erved on “ ‘James Barker ’” when t he citation w

as directed to “Barker Constructi on’s regi stered agent ‘James M. Barker, 128 Nor thwest El lison , Burleson, John son County, Tex as 76028,'” the return of citati on was defecti ve); accord , Verlander

Enterprises

, Inc. v. Gr

aham , 932 S.W.2d 259, 261- 62 (T ex. App.--El Pas o 1995,2 Under Texas Rule of Appel lat e Procedure 26.1( c) and 30, a pa rty who 1) has not part ici pated i n the heari ng that resul ted i n the j udgment complained of and who di d not t imely fi le a post-

judgment motion, requestfor

fi ndi ngs of

fact , or not ice of ap peal and 2) subsequ ent ly fi le s a not ice wi t hin si x months of the judgment may take a rest ri cted appeal . The record at bar does not discl ose that Equit able p arti cipat ed in the heari ng from which j udgment arose or fil ed the do cuments m enti oned byRule 30. However, it does reve al that Equit able tendered a not ice of appeal approxi matelythr ee months after the def ault judgment was si gned. 3 no writ ) (hol ding t he sa me). Conse quen tly, because the return was fatally defective, the default judgment cannot stand. Id. This co uple d with the record’s di sclosure that the elements of

a restricted appeal have been satisf ied leads us to conclude that Equita ble’s second issue s hould be sustain ed. 2 Id. Accordingl y, the judg ment is reversed and the caus e is remanded.

Brian Quinn Justice Do not publis h.