Verley Lee Sembritsky, Jr. v. Michel Castrinos Sembritzky

Opinion issued January 8, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00251-CV

____________

VERLEY LEE SEMBRITZKY JR.,

Appellant

V.

MICHEL LESLIE CASTRINOS SHANKS

a/k/a MICHEL CASTRINOS SEMBRITZKY,

Appellee

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 2006-06775

MEMORANDUM OPINION

In this restricted appeal, appellant, Verley Lee Sembritzky Jr., appeals a default

judgment rendered against him in a suit alleging a breach of a contractual alimony

agreement, brought by appellee, Michel Leslie Castrinos Shanks. (1) We determine (1)

whether a misnomer in the citation requires reversal of the judgment and (2) whether

the evidence is legally sufficient to support the damages award. We modify the

judgment and affirm it in part, reverse the judgment in part, and remand the cause

with instructions.

Background

Sembritzky and Shanks were once married. They divorced in 2001 and, as part

of the agreed divorce decree entered into an agreement for contractual alimony.

Under this agreement, Sembritzky was to pay Shanks the greater of 25% of his gross

monthly income each month or $5,000, for a total of 60 months, beginning January

1, 2002 and ending after the payment due December 1, 2006, or until such time that

Shanks had received a total of $5,000,000, whichever occurred first. (2)

On January 31, 2006, Shanks filed a petition for breach of alimony contract,

alleging that Sembritzky failed to pay numerous installments of the contractual

alimony agreement from February 2003 through January 1, 2006, (3) and asserting that

Sembritzky owed at least $180,000 in payments. Shanks also alleged that

Sembritzky's "flagran[t] disregard" of the contractual alimony degree constituted an

anticipatory repudiation of all future payments, and Shanks averred that she was

therefore entitled to the "present value of all maximum future payments due and

owing," after the subtraction of an amount already received by way of garnishment.

Shanks prayed for an award of $4,952,815.77 ($5,000,000 minus $45,184.23

previously received in garnishment action), attorney's fees, pre- and post-judgment

interest, and costs of court. The action was styled "In the Matter of the Marriage of

Michel Castrinos Sembritzky and Rocky Sembritzky." (4)

Citation was issued and served on "Rocky Sembritzky." No answer was filed

and no appearance made.

A default judgment hearing took place on September 21, 2006. The only

evidence offered was the testimony of Shanks, who agreed that, under the terms of

the alimony agreement, Sembritzky was obligated to pay her 25% of his monthly

gross income per month, or $5,000 per month, whichever was greater, from January

1, 2002 through December 2006, with total payments not to exceed $5,000,000. She

testified that Sembritzky had made only one voluntary payment of $5,000, in April

2002, and that a judgment had already been rendered against him for outstanding

alimony payments from January 2002 through January 2003. She agreed that she was

requesting the court to render a judgment "for all amounts due and owing from

February 1 of 2003 through December 1 of 2006," and that it was her belief that

Sembritzky's failure to make any payments since April 2002 constituted a breach of

the entire obligation. She agreed that she was requesting that the trial court accelerate

all the remaining amounts due from October 1, 2006 through December 1, 2006. The

following exchange between Shanks and her counsel then took place:

COUNSEL: Has Rocky Sembritzky provided you with any information

establishing that 25 percent of his gross monthly income

from January 1, 2002 to the present would be less than $5

million?

SHANKS: No.

COUNSEL: Do you have any reason to believe that that amount would

be less than $5 million?

SHANKS: No, I don't.

COUNSEL: Are you requesting that this Court enter a judgment in the

amount of $4,935,000 in this matter?

SHANKS: Yes, I am.

COUNSEL: Is the amount $4,935,000 based upon $5 million minus the

previous $60,000 judgment, minus the one $5,000 payment

in April 2002?

SHANKS: Yes.

Counsel subsequently requested that the trial court enter a default judgment

"against V.L. Rocky Sembritzky in the amount of $4,935,000." The trial court asked

if that was the amount that would be due under the terms of the agreement in

counsel's opinion, and counsel agreed that it was. Counsel then tendered her own

testimony in support of her request for attorney's fees in the amount of $5,000.

The trial court awarded damages in the amount of $4,935,000 and attorney's

fees in the amount of $5,000. The written judgment, signed on the same day as the

hearing, stated that V.L. Rocky Sembritzky, although duly served with citation, had

not appeared and wholly made default, and ordered that Shanks recover from "V.L.

Rocky Sembritzky, a/k/a Verley Lee Sembritzky, a/k/a Rocky Sembritzky, a/k/a V.L.

Sembritzky" the sum of $4,935,000, with interest at the rate of 7.75% from February

1, 2003 until final payment, plus attorney's fees of $5,000 and all costs of court with

interest at the rate of 7.75%. The judgment also allowed Shanks such writs and

processes necessary to enforce and collect the judgment.

On March 16, 2007, Sembritzky filed a notice of restricted appeal, stating that

he was a party to the judgment, he did not participate in the hearing that resulted in

the default judgment being appealed, and he did not timely file a post-judgment

motion, request for findings of facts and conclusions of law, or a notice of appeal.

Sembritzky also stated that the notice of restricted appeal was being filed by "Verley

Lee Sembritsky, Jr." and that he had been incorrectly named "Rocky Sembritsky" in

the underlying petition and default judgment.

Restricted Appeal

A restricted appeal is a direct attack on a default judgment. Whitaker v. Rose ,

218 S.W.3d 216, 219 (Tex. App.--Houston [14th Dist.] 2007, no pet.); see also

Norman Commc'ns v. Tex. Eastman Co. , 955 S.W.2d 269, 270 (Tex. 1997) (same,

under prior nomenclature of "writ of error"). In order to prevail on a restricted

appeal, a party must establish that: (1) it filed notice of the restricted appeal within

six months after the judgment was signed; (2) it was a party to the underlying suit; (3)

it did not participate in the hearing that resulted in the judgment complained of and

did not file a timely postjudgment motion or request for findings of fact and

conclusions of law; and (4) the error is apparent from the face of the record. See

Alexander v. Lynda's Boutique , 134 S.W.3d 845, 848 (Tex. 2004); Norman

Commc'ns , 955 S.W.2d at 270 ; Whitaker , 218 S.W.3d at 219 ; see also Tex. R. App.

P. 26.1(c), 30.

A restricted appeal affords an appellant the same scope of review as an

ordinary appeal, as long as the error appears on the face of the record. Norman

Commc'ns , 955 S.W.2d at 270 . The face of the record, for purposes of a restricted

appeal, consists of all the papers on file in the appeal, including the reporter's record.

Id. Accordingly, legal and factual sufficiency claims may be challenged in a restricted

appeal. Id .; Whitaker , 218 S.W.3d at 220 .

The first three requirements for a restricted appeal are not in dispute. The issue

before us, then, is whether Sembritzky has shown error on the face of the record.

Sembritzky asserts three (5) contentions of purported errors on the face of the record:

(1) a misnomer on the citation and judgment naming him "Rocky Sembritzky"; (2)

legally and factually insufficient evidence to support the damages awarded; and (3)

legally and factually insufficient evidence to support the award of attorney's fees.

In her response brief, Shanks asserts that the clerk's record fails to include the

affidavit on attorney's fees which was filed with the trial court, avers that disputing

this issue would be counterproductive, and states that she "waives all attorney's fees

awarded in the default judgment." We construe this as a confession that the record,

as it currently exists, does not support the claim for attorney's fees, and an

abandonment on appeal of her claim for attorney's fees. We therefore do not consider

Sembritzky's arguments regarding attorney's fees, but we modify the judgment to

delete the award of attorney's fees. See Tex. R. App. P. 43.2(b).

We turn then to Sembritzky's other challenges asserting error on the face of the

record.

Misnomer

Sembritzky's first listed issue on appeal is whether he is entitled to review by

way of restricted appeal. Contained within the discussion of this issue is a contention

that error on the face of the record is shown because citation was issued to "Rocky

Sembritzky" and not "Verley Lee Sembritzky, Jr." Sembritzky argues that strict

compliance with the rules of service of process must appear on the face of the record

in order for a default judgment to stand and the citation is required to correctly name

the person to be served. Sembritzky asserts that there can be no presumption that

"Rocky Sembritzky" and "Verley Lee Sembritzky, Jr." were the same person and,

since the petition and citation both incorrectly named him "Rocky Sembritzky,"this

misnomer requires a reversal of the default judgment. Although Sembritzky states

that the misnomer makes it "even more unlikely that the right person was served," he

does not complain that he did not receive service nor does he dispute Shanks's

assertion that he was personally served with citation.

A default judgment cannot stand unless the record shows strict compliance

with the rules of civil procedure governing issuance, service, and return of citation,

and there are no presumptions in favor of valid issuance, service or return of citation.

See Uvalde Country Club v. Martin Linen Supply Co. , 690 S.W.2d 884, 885 (Tex.

1985). Sembritzky argues that "[c]itation issued in the wrong name is error on its

face" and cites Fidelity & Guaranty Insurance Co. v. Drewery Construction Co. , Inc. ,

186 S.W.3d 571 (Tex. 2006), Uvalde , and Hercules Concrete Pumping Service, Inc.

v. Bencon Management & General Contracting Corp. , 62 S.W.3d 308 (Tex.

App.--Houston [1st Dist.] 2001, pet. denied), for support. However, these cases do

not stand for the proposition asserted by Sembritzky. Rather, they simply hold that

a return of service which does show that the name of the person actually served is

identical to that of the person named as the defendant (or agent thereof) in the

petition, will not support a default judgment because there is no proof of service on

the party actually named as the defendant in the petition; these cases involve an issue

of misidentification--raising a question about whether some other person or entity,

not a party to the litigation, was served instead of the named defendant to the suit. (6) Texas courts have recognized a distinction between misnomer and

misidentification. Enserch Corp. v. Parker , 794 S.W.2d 2, 4 (Tex. 1990).

"Misnomer" is when the plaintiff misnames the correct defendant. Id .

Misidentification is when the plaintiff is mistaken as to which of two defendants is

the correct one, there actually exists a defendant with the erroneous name, and the

plaintiff has sued the wrong party. (7) Id. at 5 ; see also Brown, L.L.P. v. Lanier

Worldwide , Inc ., 124 S.W.3d 883, 894 (Tex. App.--Houston [14th Dist.] 2004, no

pet.).

Sembritzky does not contend that there exists a different person by the name

of "Rocky Sembritzky" who is the proper defendant to the breach of contractual

alimony suit, and that he, Verley Lee Sembritzky, Jr., is not a proper party to the suit.

Nor does he assert that he was not a party to the divorce decree which contained the

contractual alimony provision at issue and which included a party named "V.L.

Rocky Sembritzky." He does not contest that he is the person whom Shanks seeks

a judgment against for breach of contractual alimony. (8) Rather, his complaint is that

he was "incorrectly named" in the breach of contractual alimony suit under the

moniker of "Rocky Sembritzky" rather than his formal legal name of "Verley Lee

Sembritzky, Jr." This presents a complaint of misnomer, not misidentification. See

Enserch, 794 S.W.2d . at 4; Brown , 124 S.W.3d at 894 .

It has long been established that when a person intended to be sued is sued and

served, but under the wrong name, and such person then fails to appear and plead

such misnomer in abatement, and default ensues, the person is bound by such

judgment. Adams v. Consol. Underwriters , 133 Tex. 26, 29 , 124 S.W.2d 840, 841

(1939); see also Matthews Trucking Co., Inc. v. Smith , 682 S.W.2d 237, 238 (Tex.

1984) (noting that, in a misnomer case, when plaintiff sued correct defendant under

incorrect name, service on correct defendant would be proper and defendant would

then be under duty to plead such misnomer and seek abatement); Brown , 124 S.W.3d

at 894 (same); Abilene Indep. Tel. & Tel. Co. v. Williams , 111 Tex. 102, 104-06 , 229

S.W. 847, 848-49 (1921) (same).

It is well established that the misnomer of a defendant does not render a

judgment void, provided that the intention to sue the correct defendant is evident

from the pleadings and process such that the defendant could not have been misled.

Brown , 124 S.W.3d at 895 (citing Adams , 124 S.W.2d at 841 , and numerous other

cases); see also Abilene Indep. Tel. & Tel. Co. , 229 S.W. at 849 .

"When an intended defendant is sued under an incorrect name, jurisdiction is

proper after service on the defendant under the misnomer." Baker v. Charles , 746

S.W.2d 854, 855 (Tex. App.--Corpus Christi 1988, no pet.) "A misnomer of a

defendant does not render a judgment based on personal service, even one by default,

void, provided the intention to sue the defendant actually served with citation is so

evident from the pleadings and process that the defendant could not have been

misled." Id. (holding that default judgment not void even though defendant was

named "Holley Farlane Baker II" and citations, pleading, and judgment referred to

him as "Holly Baker" when appellant did not raise any issue of mistake in identity or

lack of service).

Accordingly, the issuance of citation for a correct party under an incorrect

name (so long as it is consistent with the name of the party as listed in the petition)

does not show error on the face of the record and does not require the reversal of a

default judgment. See Dezso v. Harwood , 926 S.W.2d 371, 374 (Tex. App.--Austin

1996, writ denied) (denying writ of error and affirming default when citation and

petition both listed same incorrect name for correct defendant); Cockrell v. Estevez ,

737 S.W.2d 138, 140 (Tex. App.--San Antonio 1987, no writ) (denying writ of error

when petition, citation, and judgment all contained identically misspelled name of

correct defendant).

The record in the case before us reflects that the suit was brought against

"Rocky Sembritzky," citation issued against "Rocky Sembritzky," and "Rocky

Sembritzky" was served. Sembritzky admits that he is the person that Shanks seeks

judgment from in this suit and does not assert a lack of service. The fact that the

citation names Sembritzky as "Rocky" (consistent with the petition) rather than

"Verley Lee . . . Jr." does not reflect error on the face of the record. We hold that

there is no error on the face of the record as to the service of citation and overrule this

challenge to the default judgment.

Sufficiency Challenges

Sembritzky next asserts that the evidence was legally, or in the alternative,

factually, insufficient to support the amount of damages awarded. Specifically, he

argues that the testimony given by Shanks regarding his gross monthly income was

pure speculation and therefore legally and factually insufficient to support the trial

court's entry of damages in the amount of $4,935,000. (9)

As the face of the record includes all papers on file in the appeal, including the

reporter's record, and because a restricted appeal affords an appellant the same scope

of review as an ordinary appeal, the legal and factual sufficiency of the evidence to

support the judgment may be challenged by a restricted appeal. See Norman

Commc'ns , 955 S.W.2d at 270 ; Whitaker , 218 S.W.3d at 220 .

When a no-answer default is entered against a party on an unliquidated claim,

the non-answering party is deemed to have admitted all facts properly pleaded, except

for the amount of damages. Texas Commerce Bank, Nat'l Ass'n v. New , 3 S.W.3d

515, 516 (Tex. 1999); Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 83 (Tex.

1992); Whitaker , 218 S.W.3d at 220 ; Arenivar v. Providian Nat'l Bank , 23 S.W.3d

496, 497 (Tex. App.--Amarillo 2000, no pet.). The legal and factual sufficiency of

the evidence to support an award of unliquidated damages in a no-answer default

judgment may therefore be challenged on appeal. Whitaker , 218 S.W.3d at 221 ;

Arenivar , 23 S.W.3d at 498 .

Both parties in this case agree that the contractual alimony agreement provided

for alimony that could range from a minimum total of $300,000 to a maximum total

of $5,000,000, depending on whether the alimony amount due is calculated using the

minimum monthly payment amount of $5,000 per month or the payment of 25% of

Sembritzky's gross monthly income amount per month. The total amount of damages

to be awarded under the agreement depends on which amount is higher. That

determination necessarily requires evidence of Sembritzky's gross monthly income

during the time at issue before a calculation of 25% of his gross monthly income can

be computed in order for the trial court to determine which amount is higher ($5,000

or 25%of gross monthly income), and thus, the actual amount due. Shanks did not

seek a judgment based on the readily calculable fixed amount of $5,000 a month for

a total of $300,000, but rather sought an award based on 25% of Sembritzky's gross

monthly income during the period of payment at issue. The amount of Sembritzky's

gross monthly income during the months for which payment was sought does not

appear in the petition nor in any instrument in writing in the record. Accordingly, the

damages sought in the suit could not be computed by referring to the factual

allegations in the petition or any written instrument before the trial court, and

therefore were not liquidated. See Pentes Design, Inc. v. Perez , 840 S.W.2d 75, 79

(Tex. App.--Corpus Christi 1992, no writ) ("A claim is liquidated if the amount of

damages caused by the defendant can be accurately calculated from the factual as

opposed to the conclusory allegations in the petition and an instrument in writing.");

see also Arenivar , 23 S.W.3d at 498 ("Whether a claim is liquidated must be

determined from the language of the petition, as a seemingly liquidated claim may be

unliquidated because of pleading allegations that require proof for resolution."). The

trial court accordingly was required to hear evidence as to damages. See Tex. R. Civ.

P. 243 Heine , 835 S.W.2d at 83 .

The trial court did hear evidence as to the amount of damages, and the

reporter's record of this hearing, in which testimonial evidence was offered to support

the amount of damages requested, appears in the record on appeal. We therefore may

review, in this restricted appeal, the legal and factual sufficiency of the evidence to

support the unliquidated damages awarded.

We consider first Sembritzky's complaint that the evidence was legally

insufficient.

A. Standard of review for legal sufficiency

In a legal sufficiency, or "no-evidence" review, we determine whether the

evidence would enable reasonable and fair-minded people to reach the verdict under

review. City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In conducting

this review, we credit favorable evidence if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not. Id. We consider the evidence

in the light most favorable to the finding under review and indulge every reasonable

inference that would support it. Id. at 822 . We must, and may only, sustain a no-evidence contention if (1) the record reveals a complete absence of evidence of a vital

fact, (2) the court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital

fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the

opposite of the vital fact. Id. at 810 ; Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d

706, 711 (Tex. 1997).

B. Analysis

Under the terms of the contractual alimony agreement, Sembritzky was to pay

Shanks either $5,000 a month or 25% of Sembritzky's gross monthly income,

whichever was greater, for 60 months or until the total alimony paid was $5,000,000,

whichever occurred first. Shanks sought the maximum possible total alimony

payment, $5,000,000, which required that she present evidence that 25% of

Sembritzky's total gross income during the period of alimony payments was equal to

$5,000,000. (10) The only evidence presented to the trial court as to Sembritzky's

income during the time in question was testimony from Shanks that:

(1) Sembritzky had not provided any information to Shanks that would

establish that 25% of his gross monthly income from January 1, 2002 to the

time of the hearing would be less than 5 million; and

(2) Shanks had no reason to believe that 25% of Sembritzky's gross monthly

income from January 1, 2002 to the time of the hearing, was less than $5

million.

Based on these statements, the trial court awarded damages based on a

calculation that 25% of Sembritzky's total income during the time period in question

was $5,000,000. To do so, the trial court would have had to find that the evidence

established that, during the time period in question, Sembritzky had a total gross

income of at least $20,000,000. (11)

Neither of Shanks's statements provides any actual evidence that Sembritzky

had a total gross income of $20 million dollars or more from January 1, 2002 to

September 21, 2006. The fact that Sembritzky did not provide information to Shanks

that established that he made less than $20,000,000, and the fact that Shanks had no

reason to believe that Sembritzky made less than $20,000,000, is not evidence that

Sembritzky actually made at least $20,000,000 during the period of time in question.

Inferences upon inferences merely beget inferences, not evidence. See Marathon v.

Pitzner , 106 S.W.3d 724, 728 (Tex. 2003) ("[A]s we have frequently said, some

suspicion linked to other suspicion produces only more suspicion, which is not the

same as some evidence. We have also said that an inference stacked only on other

inferences is not legally sufficient evidence.") (quotations and citations omitted). To

conclude that Sembritzky made more than $20,000,000 based solely on these negative

assertions by Shanks, would be purely speculative and no more than mere surmise

and suspicion, particularly as Shanks acknowledges on appeal that she is "not privy

to Sembritzky's personal income information," and admits that she "failed to come

forward with information regarding [Sembritzky's] gross income." (12) See Tex. R.

Evid. 602 ("A witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the

matter."); Salaymeh v. Plazo Centro, L.L.C ., 264 S.W.3d 431, 439 (Tex.

App.--Houston [14th Dist.] 2008, no pet. h.) (noting that uncontested testimony from

witness that appellant did not vacate premises did not prove that appellant actually

occupied premises where witness had no personal knowledge regarding occupation

of premises; holding that "a bare conclusion with no basis in fact cannot support a

judgment"). Shanks's testimony on this matter was, in legal effect, no evidence. See

Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983) ("When evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal effect,

is no evidence.").

We hold the evidence legally insufficient to support the amount of damages

awarded and sustain that portion of Sembritzky's second issue. (13)

When a no-evidence point is sustained as to the award of unliquidated damages

in an uncontested, no-answer default judgment, the proper disposition is to remand

for a new trial on the issue of unliquidated damages. Heine , 835 S.W.2d at 86 ;

Arenivar , 23 S.W.3d at 498 . Conclusion

We reverse the portion of the judgment awarding damages and remand the

cause for a new trial on damages. This is a limited remand. See Hudson v. Wakefield ,

711 S.W.2d 628, 630 (Tex. 1986). We modify the remainder of the judgment to

delete the award of attorney's fees and affirm the remainder of the judgment as

modified.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

1. At the time of the judgment, Shanks was known as Michel Castrinos

Sembritzky.

2. The agreement does not include the term "whichever occurs first." However,

in subsequent litigation involving this agreement, the trial court interpreted the

agreement in such a fashion, finding that appellant had a minimum obligation

of $300,000 ($5,000 x 60 months) and a maximum obligation of $5,000,000

(25% of gross monthly income to be paid each month until $5,000,000 was

paid). Both parties in this appeal adopt this interpretation of the agreement in

their briefs and thus we do likewise.

3. A prior judgment was rendered for amounts due and owing prior to February

1, 2003, apparently calculated using the $5,000-a-month-payment basis.

4. The underlying final decree of divorce was styled "In the Matter of the

Marriage of V.L. Rocky Sembritzky and Michel Castrinos Sembritzky."

5. Sembritzky also raises two additional purported errors on the face of the record

in his reply brief. However, we will not consider issues raised for the first time

in a reply brief. See Howeth Invs., Inc. v. City of Hedwig Vill. , 259 S.W.3d

877, 890 (Tex. App.--Houston [1st Dist.] 2008, no pet.).

6. See Fid. & Guar. Ins. Co. v. Drewery Constr. Co. , Inc. , 186 S.W.3d 571, 573

(Tex. 2006) (using Uvalde Country Club v. Martin Linen Supply Co. , 690

S.W.2d 884, 885 (Tex. 1985), as an example); Uvalde , 690 S.W.2d at 884-85

(holding that record did not show that person named in return of service, Henry

Bunting, was authorized to receive service for, or was connected with,

defendant named in petition, when registered agent for defendant named in

petition was Henry Bunting, Jr.); Hercules Concrete Pumping Serv., Inc. v.

Bencon Mgmt. & Gen. Contracting Corp. , 62 S.W.3d 308, 310-11 (Tex. App.

--Houston [1st Dist.] 2001, pet. denied) (holding that return of service stating

that service was had on "George W. Brock, in person ____ (by leaving in the

principal office during office hours ____ of the said Hercules Concrete

Pumping" did not establish that named defendant, "Hercules Concrete

Pumping Service, Inc." was served; noting that return did not establish that

Brock was registered agent for named defendant and that it was possible that

there were several corporate entities whose names began with words "Hercules

Concrete Pumping").

Sembritzky also cites our opinion in Medeles v. Nunez , 923 S.W.2d 659, 663

(Tex. App.--Houston [1st Dist.] 1996, writ denied), overruled in part on other

grounds , Barker CATV Constr. Inc. v. Ampro , Inc. , 989 S.W.2d 789, 793 (Tex.

App.--Houston [1st Dist.] 1999, no pet.). However, Medeles likewise simply

held that when there is a variance between the name of the defendant in the

petition and the name of the defendant in the citation, the citation does not

comply with the rules of civil procedure because the citation must be directed

to the defendant named in the suit. Medeles , 923 S.W.2d at 662-63 . In that

case, the petition named Maria Medeles as the defendant, but the citation was

directed to "Maria Me n deles." (Emphasis added).

7. The Austin court of appeals has explained:

"The principle of these cases is simple. If a person thought to be

named A is sued and served under that name the judgment against

him is valid, even though his name is B. But if one has a cause of

action against a person whose name is A and there is another

person with the same or similar name, service on the person

against whom one has no cause of action will not support a

judgment against the one amenable to the cause of action

asserted."

Thomas v. Cactus Drilling Corp. of Texas , 405 S.W.2d 214, 216 (Tex. Civ.

App.--Austin 1966, no writ).

8. Sembritzky specifically asserts that he has been deposed by Shanks's attorney

and testified that he had no income, and contends that Shanks had deposition

and documentary evidence of Sembritzky's income as recently as four months

prior to the entry of the default judgment.

9. Sembritzky

also argues that the trial court improperly accelerated the four final

payments still outstanding when the contractual alimony agreement did not

contain an acceleration clause. However, given our disposition, we need not

reach this contention.

10. Had Shanks sought the minimum possible total alimony payment--$5,000 for

60 months--the total damages awarded would have been $235,000 ($300,000

less the amount already paid directly by Sembritzky ($5,000) and the amount

awarded in a previous judgment ($60,000)).

11. To reach a total alimony payment of $5,000,000 over 60 months, monthly

payments would have to be $8,333.33. For that amount to equal 25% of gross

monthly income, the gross monthly income would have to be $33,333.33.

Accordingly, in order for the trial court to award the full $5,000,000 maximum

payment under the alimony agreement, Sembritzky's total gross income during

the period in question would have to be $20,000,000 ($8,333 x 60, as the trial

court apparently used the entire term and "accelerated" the final four

payments). If Sembritzky's gross monthly income during the period in

question was greater than $33,333.33 per month, then the monthly payment

would be higher than $8,333.33 but, under the agreement, the total of the

alimony payments would not exceed $5,000,000. Thus, a minimum income of

$20,000,000 during the time in question would have had to be shown in order

to support the damages awarded.

12. Shanks contends that she was under no obligation to discover Sembritzky's

gross monthly income and argues that testimony as to the "total amount due"

was sufficient, citing Texas Commerce Bank, National Association v. New , 3

S.W.3d 515, 517 (Tex. 1999), and Barganier v. Saddlebrook Apartments , 104

S.W.3d 171, 173 (Tex. App.--Waco 2003, no pet.). However, these cases are

factually distinguishable as Shanks's damages under the alimony contract are

specifically tied to Sembritzky's gross income and therefore the "total amount

due" under the contract cannot be determined without evidence of

Sembritzky's gross income.

13. Because we have found the evidence legally insufficient, we need not address

whether the evidence is factually insufficient. See Harris County Dist.

Attorney's Office v. Pennington , 882 S.W.2d 529, 531 (Tex. App.--Houston

[1st Dist.] 1994, no writ) .