Opinion issued August 23, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00661-CV
                           ———————————
          PATRICK O’CONNOR & ASSOCIATES, L.P., Appellant
                                        V.
                        CHESTER R. HALL, Appellee


             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                       Trial Court Case No. 1036533



                         MEMORANDUM OPINION

      Patrick O’Connor & Associates, L.P. appeals a default summary judgment on

a bill of review in favor of Chester R. Hall. On appeal, O’Connor contends that the

trial court erred in granting summary judgment because a fact issue exists as to
whether a typographical error on the citation in the underlying suit establishes

improper service. We affirm.

                                  BACKGROUND

      Patrick O’Connor & Associates, L.P., provides commercial property tax

reduction advocacy services. Between 2007 and 2010, O’Connor billed Chester R.

Hall for its services. In December 2010, O’Connor sued Hall in justice court,

requesting $549.04 in unpaid fees, $52.42 in unpaid interest, and $1,500.00 in

attorney’s fees. Hall was served with a citation that named “Patrick OConnor

Associates” as the Plaintiff, instead of “Patrick O’Connor & Associates, L.P.”

      In June 2012, the justice court entered a default judgment against Hall. The

court awarded O’Connor $549.04 in fees, $104.37 in interest, $750.00 in attorney’s

fees, and $109.00 for cost of court and service of process fees. In February 2013,

Hall filed a bill of review in the justice court. The court denied Hall’s bill of review.

Hall appealed that decision to the county court at law.

      On appeal to the county court, Hall argued that the default judgment entered

against him was the result of fraud because he had never hired O’Connor to provide

him any services. Second, he argued that O’Connor was prohibited from filing a

lawsuit against him because an agreed permanent injunction between O’Connor and

the State of Texas prohibited him from “initiating debt collection efforts of any

kind . . . including lawsuits” after November 1, 2010.           Finally, Hall filed a



                                           2
supplemental petition arguing that he was entitled to a bill of review as a matter of

law because he was not properly served in the underlying suit.

      Hall moved for summary judgment on his bill of review. O’Connor filed an

untimely response the day before the hearing, arguing that the typographical error in

his citation in the justice court in the first suit did not constitute defective service.

The trial court granted summary judgment to Hall.

                                    DISCUSSION

I.    Standard of Review

      When a trial court grants summary judgment on a bill of review, we apply the

regular standard of review. See Boaz v. Boaz, 221 S.W.3d 126, 130–31 (Tex. App.—

Houston [1st Dist.] 2006, no pet.); Brown v. Vann, No. 05-06-01424-CV, 2008 WL

484125, at *2 (Tex. App.—Dallas Feb. 25, 2008, no pet.) (mem. op.). We review a

summary judgment de novo. Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex.

2014). To prevail, the movant has the burden of proving that there is no genuine

issue of material fact and that it is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c). When deciding whether a disputed, material fact issue precludes

summary judgment, we take as true evidence favorable to the non-movant, and we

indulge every reasonable inference and resolve any doubts in its favor. See Boerjan,

536 S.W.3d at 311–12 (quoting Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310

(Tex. 2009)).



                                           3
II.   Applicable Law

      A bill of review is an equitable proceeding brought to set aside an earlier final

judgment. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (citing Baker v.

Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979)). A bill-of-review plaintiff must plead

and prove (1) a meritorious defense to the underlying cause of action; (2) that fraud,

accident, or wrongful act of the opposing party, or an official mistake, prevented the

presentation of this defense, and (3) this error was unmixed with any fault or

negligence on the plaintiff’s part. Baker, 582 S.W.2d at 406–07. In cases in which

a bill of review plaintiff establishes a lack of proper service, constitutional due

process eliminates the need to show the first two elements. Caldwell, 154 S.W.3d

at 96. A bill-of-review plaintiff alleging defective service must still show that the

defective judgment resulted from conduct that was “unmixed with any fault or

negligence of his own.” Id. at 97.

      A default judgment is void unless the record shows strict compliance with the

rules governing issuance, service, and return of citation. Primate Constr., Inc. v.

Silver, 884 S.W.2d 151, 152 (Tex. 1994). There are no presumptions in favor of

valid issuance, service, or return of citation. Id. “[F]ailure to affirmatively show

strict compliance with the Rules of Civil Procedure renders the attempted service of

process invalid and of no effect.” Uvalde Country Club v. Martin Linen Supply Co.,

690 S.W.2d 884, 886 (Tex. 1985).



                                          4
      Texas Rule of Civil Procedure 99 provides that a citation shall “show the

names of the parties . . .” TEX. R. CIV. P. 99(b)(7). An incorrect name of a party to

the suit demonstrates that a citation is not in strict compliance. Martin Linen Supply,

690 S.W.2d at 885 (holding that citation was invalid because it named “Henry

Bunting,” and not Henry Bunting Jr., as defendant); Medeles v. Nunez, 923 S.W.2d

659 (Tex. App.––Houston [1st Dist.] 1996, writ denied) (holding that citation was

invalid because it named “Felix Numez,” not Felix Nunez, as plaintiff and “Maria

Mendeles,” not Maria Medeles, as defendant), overruled on other grounds by Barker

CATV Constr. v. Ampro, Inc., 989 S.W.2d 789 (Tex. App.—Houston [1st Dist.]

1999, no pet.).

      On the other hand, if the name’s misspelling is consistent in both the court

documents and the citation, then the incorrectly spelled name is not fatal to a citation,

provided that the correct parties are so evident from the pleadings and process that

the defendant could not have been misled. Orange Grove Indep. Sch. Dist. v. Rivera,

679 S.W.2d 482, 483 (Tex. 1984); see Enserch Corp. v. Parker, 794 S.W.2d 2, 4–5

(Tex. 1990); Hayley v. Young, 541 S.W.2d 217, 219 (Tex. Civ. App.––Houston [1st

Dist.] 1976, no writ); Huynh v. Vo, 2003 WL 1848607, at *2 (Tex. App. ––Houston

[1st Dist.] Apr. 10, 2003, no pet.) (mem. op.). Texas courts thus distinguish between

cases of misidentification, as in Medeles and Uvalde, and misnomer, as in Enserch,

Hayley, and Huynh.



                                           5
III.   Analysis

       In this case, Hall attached the original petition and citation in the justice court

as summary judgment evidence, together with the justice court’s notice of trial

setting that did not list him as being notified of the trial date. The court documents

name the plaintiff as “Patrick O’Connor & Associates, LP.” The citation that lead

to the default judgment, however, names the plaintiff as “Patrick OConnor

Associates.” Although the variance is minor, the citation removes the limited

partnership identifier and requires the conclusion that the citation misidentifies the

limited partnership entity that is the named plaintiff, rendering the citation invalid as

a matter of law. See Medeles, 923 S.W.2d at 662–63 (explaining that “strict

compliance” required under rules of civil procedure governing service of citation

means literal compliance; holding that citation with small spelling variances from

pleadings rendered citation void and service ineffective). The citation failed to

identify “Patrick O’Connor & Associates, L.P.,” signifying that the named plaintiff

was a limited partnership, as required by Rule 99.

       Because the variance in the named plaintiff renders the citation void as a

matter of law, we need not reach the question of whether Hall could not identify

O’Connor based on the citation. See Amato v. Hernandez, 981 S.W.2d 947, 950

(Tex. App.––Houston [1st Dist.] 1998, pet. denied) (citing Wilson v. Dunn, 800

S.W.2d 833, 836 (Tex. 1990)). In the no-answer default judgment context, it is



                                            6
sufficient that the citation was not issued as required by Rule 99. Wilson, 800

S.W.2d at 836. Hall adduced evidence that he was not otherwise notified of the trial

setting.

       O’Connor’s response was not timely filed; thus, the trial court did not

consider it in granting summary judgment. On appeal, O’Connor contends that the

typographical errors should not dictate the conclusion that service was invalid, an

argument that we have rejected. He does not challenge Hall’s argument that he has

otherwise met the requirements for obtaining a bill of review. Because we have

rejected O’Connor’s argument as to the validity of the citation, the trial court did not

err in granting a bill of review to Hall.

                                   CONCLUSION

       We hold that the error in the citation rendered O’Connor’s service on Hall

fatally defective in the context of a no-answer default judgment because it failed to

identify the limited partnership entity that was the named plaintiff. The other

elements for establishing a bill of review went unchallenged in the trial court.

Accordingly, the trial court did not err in granting summary judgment on Hall’s bill

of review. We therefore affirm.



                                                Jane Bland
                                                Justice

Panel consists of Justices Bland, Brown, and Lloyd.

                                            7
