Simon Stephen v. YSKJS LLC

Opinion issued August 28, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00558-CV
———————————
SIMON STEPHEN, Appellant
V.
YSKJS LLC, Appellee

On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2022-29590

MEMORANDUM OPINION

This case arises from a bill of review proceeding that challenged a default

judgment in a contract dispute. Appellant Simon Stephen contends that the trial

court lacked personal jurisdiction over him because service of process was invalid.

We affirm.
Background

Appellee YSKJS LLC sued Simon Stephen for breach of a commercial lease

agreement. Stephen was served at his residence, but he did not answer the lawsuit.

YSKJS sent him, via certified mail, two motions for default judgment and notices

of hearings on those motions. Stephen did not respond. The court entered a default

judgment against Stephen in December 2020.

After a court-ordered receiver executed on the default judgment, Stephen

filed a petition for bill of review to vacate the judgment. He argued that service

was defective because the citation prepared by the clerk misspelled his first name

as “Simom,” rather than Simon. Stephen moved for summary judgment on his bill

of review, but the trial court denied the motion. The parties entered an agreed

statement of facts; Stephen moved for reconsideration of the order denying his

motion for summary judgment; and both parties asked the trial court to enter

judgment in their respective favor. The trial court denied Stephen’s motion for

reconsideration of its denial of summary judgment and signed a final judgment

denying Stephen’s bill of review. Stephen appealed.

Service of Process

In his sole issue on appeal, Stephen contends that the trial court erroneously

denied his bill of review. He argues that the underlying default judgment is void

2
because the trial court never acquired personal jurisdiction over him due to

improper service. We disagree and affirm the judgment of the trial court.

A. Agreed Facts

The parties submitted agreed facts to the trial court. These facts included:

• The petition named the defendant as Simon Stephen, and the citation
listed the defendant as “Simom Stephen.”

• The affidavit of service (return) stated that the citation and the original
petition were delivered to “Stephen, Simon.”

• The process server testified by affidavit that she personally delivered
the citation and petition to “a male who identified himself as ‘Simon
Stephen’ at his residential address” in Missouri City, Texas.

• Simon Stephen was actually served with the citation and affidavit of
service.

• Appellee mailed, via certified mail, copies of its motion for final
default judgment to Simon Stephen at his residential address, and in
December 2020, the court signed a final default judgment which
references the plaintiff as Simon Stephen.

• Simon Stephen does not claim that he was misled by the citation
listing the defendant as “Simom Stephen.”

B. Standard of Review and Applicable Law

A bill of review is an equitable proceeding brought by a party seeking to set

aside a prior judgment that is no longer subject to challenge by a motion for new

trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Bill of review

plaintiffs must ordinarily plead and prove (1) a meritorious defense to the

underlying cause of action; (2) which the plaintiffs were prevented from making by
3
the fraud, accident, or wrongful act of the opposing party, or official mistake,

(3) unmixed with any fault or negligence on their own part. Id. When a bill of

review plaintiff claims non-service, as Stephen does here, he is relieved from

proving the first two elements, but he still must prove the judgment was unmixed

with his own fault or negligence. Id. Where, as here, the parties submitted agreed

facts to the trial court, we review de novo the application of the law to the agreed

facts. See Harris Cty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d

88, 91 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

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

the rules governing issuance, service, and return of citation. Huynh v. Vo, No. 01-

02-00295-CV, 2003 WL 1848607, at *2 (Tex. App.—Houston [1st Dist.] Apr. 10,

2003, no pet.) (mem. op.). There are no presumptions in favor of valid issuance,

service, or return of citation. Id. When the attempted service of process is invalid,

the trial court does not acquire jurisdiction over the defendant, and the default

judgment is void. Giles v. Giles, No. 01-20-00571-CV, 2022 WL 2251814, at *3

(Tex. App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.). At the same

time, strict compliance with the rules does not require “obeisance to the minutest

detail.” Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 612–13

(Tex. App.—Corpus Christi-Edinburg 1996, writ denied) (quoting Herbert v.

Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex. App.—Houston [1st

4
Dist.] 1995, no writ) (op. on reh’g)). “Errors such as mistaken capitalization in the

defendant’s name and spelling errors too minor to raise any doubt that the correct

person was served are insufficient to invalidate service.” Ortiz, 926 S.W.2d at 613.

C. Analysis

Stephen contends the default judgment is void because the record does not

affirmatively show strict compliance with the rules governing issuance, service,

and return of citation because the citation was directed to “Simom Stephen” when

his name is “Simon Stephen.” Stephen cites numerous cases claiming that this is a

case of misidentification that requires reversal.

Texas courts recognize a distinction between misidentification and

misnomer. Giles, 2022 WL 2251814, at *3 (citing Enserch Corp. v. Parker, 794

S.W.2d 2, 4, (Tex. 1990)). The key difference is whether the mistake actually

created confusion about the proper party. Misidentification “arises when two

separate legal entities actually exist[,] and a plaintiff mistakenly sues the entity

with a name similar to that of the correct entity.” Reddy P’ship v. Harris Cty.

Appraisal Dist., 370 S.W.3d 373, 376 (Tex. 2012) (internal quotations omitted).

When a correct defendant is served under a wrong or misspelled name, the case is

not one of misidentification, but rather misnomer.* Huynh, 2003 WL 1848607, at

*
See e.g., Giles v. Giles, No. 01-20-00571-CV, 2022 WL 2251814, at *3 (Tex.
App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.) (holding citation
served on “Christine Marie Giles” whose actual name was “Christina Marie Giles”
5
*2. “When the correct party . . . is sued under [an] incorrect name, the court

acquires jurisdiction after service with the misnomer if it is clear that no one was

misled or placed at a disadvantage by the error.” Reddy P’ship, 370 S.W.3d at 376

(internal quotations omitted). Misnomer of a defendant does not render a default

judgment based on personal service void, provided that 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. Huynh, 2003 WL 1848607,

at *2.

Stephen does not contest that he was personally served at his address, nor

does he argue that he is not the proper party to the lawsuit. He does not assert that

he was misled by the erroneous spelling of his name in the citation. We hold that

service of process was valid, and no lack of personal jurisdiction is apparent from

the record.

We overrule Stephen’s sole issue.

was misnomer when undisputed Christina was personally served and was proper
party); Sembritzky v. Shanks, No. 01-07-00251-CV, 2009 WL 48234, at *4 (Tex.
App.—Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem. op.) (holding citation
issued to defendant under moniker “Rocky Sembritzky,” rather than his legal
name, “Verley Lee Sembritzky, Jr.” constituted misnomer).

6
Conclusion

We affirm the trial court’s judgment.

Susanna Dokupil
Justice

Panel consists of Justices Guerra, Gunn, and Dokupil.

7