Opinion
NUMBER 13-16-00035-CV
02-02-2017
MICHAEL BOOKER, Appellant, v. LVNV FUNDING LLC, Appellee.
On appeal from the 82nd District Court of Robertson County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Rodriguez
Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et seq. (West, Westlaw through 2015 R.S.).
In 2005, appellee LVNV Funding LLC (LVNV) took a default judgment against appellant Michael Booker. In 2015, Booker moved to vacate that default judgment, and the trial court denied his motion. By four issues on appeal, Booker argues that jurisdictional defects in the 2005 suit render the default judgment void. We affirm.
This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). Because this is a transfer case, we apply the precedent of the Tenth Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3.
I. BACKGROUND
According to LVNV's 2005 petition, Booker had received a credit card from a company called "Metris." Booker accrued a debt of $3,588.13 on the Metris credit card. LVNV then purchased this debt from Metris and sought to collect the debt from Booker. When payment was not forthcoming, LVNV sued Booker for breach of the credit card agreement and quantum meruit.
Booker did not file an answer. Following a hearing, the district court entered a default judgment in favor of LVNV in the amount of $3,588.13 plus attorney's fees in the amount of $1,196.04.
In 2015, LVNV filed an application for writ of garnishment against Booker. Booker responded with a motion to vacate the 2005 default judgment. His motion argued that the 2005 default judgment was void for three reasons, each dealing with alleged jurisdictional defects which rendered the judgment void. The trial court denied his motion and proceeded to grant LVNV's application. This appeal followed.
II. CHALLENGES TO JURISDICTION
By his first three issues, Booker contests jurisdiction for the 2005 default judgment. Booker's first issue asserts that LVNV's petition did not plead his home address and did not allege that Booker signed the underlying credit agreement in Robertson County, and that these deficiencies destroy subject matter jurisdiction. In his second and third issues, Booker attacks personal jurisdiction for the 2005 default judgment, arguing that the citation in that suit was defective because it allegedly stated an incorrect deadline for filing his answer and because the citation misspelled his name. Booker's fourth issue argues that if this Court sustains any of his jurisdictional arguments against the 2005 default judgment, we should reverse the 2015 writ of garnishment as well.
A. Standard of Review and General Applicable Law
A litigant may attack a void judgment directly or collaterally, but a voidable judgment may only be attacked directly, such as by appeal or bill of review. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). The form of direct attack with the longest availability is a bill of review, which must be filed within four years of the judgment. See id. at 272 n.7; Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d 760, 763 (Tex. App.—Corpus Christi 2004, no pet.). A void judgment can be collaterally attacked at any time. PNS Stores, 379 S.W.3d at 272.
A judgment is void when "the court rendering judgment had no jurisdiction [over] the parties or property, no jurisdiction [over] the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act." Id. All other errors render the judgment merely voidable, and such errors must be corrected on direct attack, within the appropriate time. See Thibodeau v. Dodeka, LLC, 436 S.W.3d 23, 25 (Tex. App.—Waco 2014, pet. denied) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam)).
When attacked collaterally, a judgment is presumed valid. PNS Stores, 379 S.W.3d at 273; White v. White, 179 S.W.2d 503, 506 (Tex. 1944) ("Where a court of record, having general jurisdiction, assumes to exercise its jurisdiction in a given case, all presumptions are in favor of the validity of its proceedings . . . ."). But that presumption disappears when the record affirmatively reveals a jurisdictional defect. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam). A judgment is void when the record establishes a jurisdictional defect such as a lack of subject matter jurisdiction or deficiencies in personal jurisdiction which violate due process. Thibodeau, 436 S.W.3d at 26. A "complete failure or lack of service" violates due process; mere "technical defects in service" do not. PNS Stores, 379 S.W.3d at 274.
To clarify this standard, we address one aspect of Booker's third issue out of turn: Booker relies heavily on the rule that strict compliance with the rules of service must be observed in order for a default judgment to be upheld on review. However, Booker neglects to mention an important qualification to this rule: "strict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack" such as by an appeal or a bill of review. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (emphasis added). Booker never directly appealed the default judgment, and a bill of review must be filed within four years of the judgment. Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d 760, 763 (Tex. App.—Corpus Christi 2004, no pet.). The default judgment was rendered in 2005, and Booker's access to bill of review procedure elapsed long before he filed his motion in 2015.
B. Pleading of Subject Matter Jurisdiction
As we understand Booker's first issue, he argues that LVNV's original petition failed to establish the subject matter jurisdiction of the trial court because (a) the petition did not state Booker's home address and (b) LVNV failed to state where the contract was signed. However, these considerations relate to venue, not to jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a) (West, Westlaw through 2015 R.S.) (providing the general venue rule that all lawsuits shall be brought "(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; (2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person . . . .").
"Jurisdiction and venue are not synonymous." Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In Texas, "venue" refers to the county in which suit is proper within the forum state. In re Great Lakes Dredge & Dock Co. LLC, 251 S.W.3d 68, 73 (Tex. App.—Corpus Christi 2008, no pet.). Venue pertains solely to where a suit may be brought and is a different question from whether the court has jurisdiction of the property or thing in controversy. Gordon, 196 S.W.3d at 383. Unlike subject matter jurisdiction, venue may be waived, and it is not jurisdictional. Id.
Where a default judgment is challenged based on the pleadings which support it, the default judgment will be held erroneous only if (1) the petition does not attempt to state a cause of action that is within the jurisdiction of the court; (2) the petition does not give fair notice to the defendant of the claim asserted; or (3) the petition affirmatively discloses the invalidity of such claim. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988); Dodd v. Savino, 426 S.W.3d 275, 291 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
LVNV's petition clearly gave fair notice of its garden-variety contract claims, see Paramount Pipe, 749 S.W.2d at 494, and LVNV filed its petition in the district court of Robertson County, a court of general jurisdiction. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); White, 179 S.W.2d at 506. We find nothing in the record to affirmatively demonstrate a defect on the basis of subject matter jurisdiction. See Alfonso, 251 S.W.3d at 55. Booker's venue arguments do not otherwise disturb the presumption of a valid judgment. See PNS Stores, 379 S.W.3d at 273.
We overrule Booker's first issue.
C. Dates in Citation
By his second issue, Booker argues that the citation contained incorrect information regarding when his answer was due and that this defect in service destroys personal jurisdiction. Booker claims that because LVNV's petition also included requests for disclosure, this extended the deadline for an answer from twenty days to fifty days. He contends that the citation was therefore incorrect in stating, "If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you."
We disagree. Booker appears to be misconstruing rule of civil procedure 194.3, which governs responses to requests for disclosure. TEX. R. CIV. P. 194.3. This rule provides that the responding party must serve a written response to the requests within thirty days, except that "a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request . . . ." Id. Rule 194.3 clearly refers to the time allowed to respond to requests for disclosure if an answer has not yet been filed, not to the time for filing the answer itself. See id.
The time for filing an answer is governed by a different rule. See id. R. 99. Rule 99 provides a period of at least twenty days (not thirty days) for filing an answer and makes no allowance for requests for disclosure. See id. Instead, Rule 99 provides that the citation "shall include" a specifically worded notice of the twenty-day deadline. Id. The citation in this case correctly quoted this notice and the deadline it provides. Booker's argument is without merit.
We overrule Booker's second issue.
D. Spelling of Booker's Name
By his third issue, Booker argues that a persistent misspelling of his first name in the 2005 suit requires reversal. He protests that the petition, the citation, and the judgment each list one "Micheal D. Booker" as the defendant. The appellant's actual name is "Michael D. Booker." Booker reasons that this typo destroys personal jurisdiction and renders the 2005 default judgment void.
A misnomer occurs when a party misnames itself or another party, but the correct parties are involved in the suit. In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (per curiam). A misnomer does not render a judgment void or provide a valid basis for collateral attack so long as "the intention to sue the correct defendant is evident from the pleadings and process, such that the defendant could not have been misled." Id. at 326; N. Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 719 (Tex. App.—Austin 2003, pet. denied).
The rule of idem sonans—literally, "having the same sound"—provides that a variant spelling of a name in a document will not render the document void if the misspelling is pronounced in the same way as the true spelling. Mantis v. Resz, 5 S.W.3d 388, 391 n.5 (Tex. App.—Fort Worth 1999, pet. denied), overruled on other grounds, Sheldon v. Emergency Med. Consultants, I, PA, 43 S.W.3d 701, 702 n.2 (Tex. App.—Fort Worth 2001, no pet.); see Chumney v. Craig, 805 S.W.2d 864, 866 (Tex. App.—Waco 1991, writ denied). Where names are not the same, but so similar that "the attentive ear finds difficulty in distinguishing them when pronounced, they will be considered as idem sonans." Bosse v. Cadwallader, 24 S.W. 798, 800 (Tex. 1894). Where the doctrine of idem sonans applies, the misspelling of the defendant's name does not require reversal of a default judgment. Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 291 (Tex. App.—Dallas 2003, no pet.) (upholding default judgment where service to "Westcliff" was idem sonans for defendant "Westcliffe"); Cockrell v. Estevez, 737 S.W.2d 138, 139 n.1, 140 (Tex. App.—San Antonio 1987, no writ) (same, "Cockrall" for "Cockrell"); see Mantis, 5 S.W.3d at 391 (same, "Mantis" for "Mantas"); Miller v. Gaar-Scott & Co., 141 S.W. 1053, 1053-54 (Tex. Civ. App.—El Paso 1911, no writ) (same, "Harman Miller" for "Herman Miller"); see also Huynh v. Vo, No. 01-02-00295-CV, 2003 WL 1848607, at *2 n.3 (Tex. App.—Houston [1 st Dist.] Apr. 10, 2003, no pet.) (mem. op.) (same, "Hyunh" for "Huynh"); cf. Brown v. E. Marqueze & Co., 30 Tex. 77, 78 (1867) (finding that "Brow" and "Brown" were not idem sonans, and therefore default judgment was reversed).
The record bears evidence that Booker—the intended party—was in fact served at his home in Hearne, Texas, at the address which was included in the citation and return. The service included Booker's correct middle and last name. Also listed in the service was the last four digits of Booker's alleged social security number, which Booker has not denied as his own. The only identifying information which Booker protests is a misspelling of his first name as "Micheal," which undoubtedly is idem sonans with Booker's actual first name, Michael. See Westcliffe, 105 S.W.3d at 291; Mantis, 5 S.W.3d at 391. This misnomer does not render the default judgment void, given that the intention to sue Booker for the underlying debt is evident from the pleadings and process, such that Booker could not have been misled. See Greater Hous. Orthopaedic, 295 S.W.3d at 326.
We overrule Booker's third issue.
E. Writ of Garnishment
By his fourth issue, Booker contends that because the 2005 judgment was void, the trial court erred in denying his motion to dissolve the 2015 writ of garnishment. We have found Booker's three jurisdictional arguments to be without merit. We therefore need not address this subsidiary issue. See TEX. R. APP. P. 47.1; Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
III. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 2nd day of February, 2017.