NO. 07-01-0489-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 1, 2002

______________________________

EQUITABLE LIFE ASSURANCE SOCIETY 

OF THE UNITED STATES

Appellant

v.

DAVID FISH, INDEPENDENT ADMINISTRATOR OF 

THE ESTATE OF SUSAN BEACH FISH, DECEASED, 

Appellee

_________________________________

FROM THE 64th DISTRICT COURT OF HALE COUNTY;

NO. A-31570-0105; HON. JACK MILLER, PRESIDING

_______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

Equitable Life Assurance Society of the United States (Equitable) initiated this

restricted appeal to reverse the default judgment entered against them and in favor of

David Fish (Fish), independent administrator of the estate of Susan Beach Fish, deceased.

The grounds urged on appeal purportedly warranting reversal are two. Specifically,

Equitable contends that entry of the judgment was error because Fish failed to state (in its
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Because the second ground is dispositive, we address only it.

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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 judgment.

The record reveals that citation was issued. The entity designated to be served was

“Equitable Life Assurance Society of the United States by serving registered agent: Paula

Holderfield[,] 12377 Merit Drive, Suite 1800[,] Dallas, Tx 75251.” The officer’s return of

service discloses that citation was served “at 12377 Merit Dr #1500 within the County of

Dallas at 1:40 o’clock pm [sic] on the 16th day of July, 2001, by delivering to the within

named Paula Holderfield in person . . . .” (Emphasis added). As can be seen, the suite

number differed between the designation of the person to be served and the designation

of the person who was served. So too did the name of the entity to be served differ. While

the citation was directed to “Equitable Life Assurance Society of the United States by

serving registered agent: Paula Holderfield,” the return identified “Paula Holderfield”

without reference to her capacity as registered agent of the defendant. Given the

discrepancy between the name of the party to whom the citation was directed and the

name of the individual upon whom it was served, the “original return fails absolutely to

show service on the defendant . . . .” Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d

789, 793 (Tex. App.--Houston [1st Dist.] 1999,no pet.) (holding that because the return

stated that citation was served on “‘James Barker’” when the citation was directed to

“Barker Construction’s registered agent ‘James M. Barker, 128 Northwest Ellison,

Burleson, Johnson County, Texas 76028,'” the return of citation was defective); accord,

Verlander Enterprises, Inc. v. Graham, 932 S.W.2d 259, 261-62 (Tex. App.--El Paso 1995,
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Under Texas Rule of Appellate Procedure 26.1(c) and 30, a party who 1) has not participated in the

hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion,

request for findings of fact, or notice of appeal and 2) subsequently files a notice within six months of the

judgment may take a restricted appeal. The record at bar does not disclose that Equitable participated in the

hearing from which judgment arose or filed the documents mentioned by Rule 30. However, it does reveal

that Equitable tendered a notice of appeal approximately three months after the default judgment was signed.

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no writ) (holding the same). Consequently, because the return was fatally defective, the

default judgment cannot stand. Id. This coupled with the record’s disclosure that the

elements of a restricted appeal have been satisfied leads us to conclude that Equitable’s

second issue should be sustained.2 Id.

Accordingly, the judgment is reversed and the cause is remanded.

Brian Quinn

 Justice

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