Elishah Sawyers, Pax Crate & Freight, Inc. and Robin Sawyers v. Marc Carter and Sally Carter

Opinion

ACCEPTED 01-14-00870-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 12:33:22 PM CHRISTOPHER PRINE CLERK

No. 01-14-00870-CV

FILED IN 1st COURT OF APPEALS In the Court of Appeals HOUSTON, TEXAS For the First District of Texas 4/8/2015 12:33:22 PM Houston, Texas CHRISTOPHER A. PRINE Clerk

Elishah Sawyers; Pax Freight & Crate, Inc.; and Robin Sawyers, Appellants vs.

Mark Carter and Sally Carter, Appellees

Appeal from the 506th Judicial District Court of Waller County, Texas Trial Court Cause No. 14-07-22604

APPELLEES’ BRIEF

Mr. Bruce C. Tough State Bar No. 20151500 Tough Law Firm, PLLC 819 Crossbridge Drive Spring, Texas 77373 btough@toughlawfirm.net telephone: (281) 681-0808 telecopier: (281) 281-0809 Lead Counsel for Appellees Mark Carter and Sally Carter Table of Contents

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iv

Statement of the Case.................................................................................................1

Statement Regarding Oral Argument ........................................................................2

Statement of Issues Presented ....................................................................................2

Statement of Facts ......................................................................................................3

Summary of Argument ..............................................................................................6

Argument....................................................................................................................8

First Issue Presented

THE APPELLATE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY AND THE RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND IMPERMISSIBLE………………………….8 - 15

Second Issue Presented

THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND RETURN OF SERVICE WERE VALID………………………15 -27

Third Issue Presented

THE JUDGMENT IS FINAL AND APPEALABLE, NOT INTERLOCUTORY……………………………………………27 - 34

ii Fourth Issue Presented

FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES……………………………………………………..34 - 38

Prayer……………………………………………………………………………...38

Certificate of Compliance…………………………………………………………39

Certificate of Service……………………………………………………………...40

Appendix………………………………………………………………………...ante

iii Index of Authorities

Cases Page

Adjust Video v. Nueces County, 996 S.W.2d 245 (Tex. App.-Corpus Christi 1999, no pet.)………………………………................30

Cockrell v. Estevez, 737 S.W.2d 138 (Tex. App.--San Antonio 1987, no writ)………………………………………….23

Color Smart, Inc. v. Little, No. 04-00-00294-CV, 2001 WL 1230526, at *2 (Tex. App. – San Antonio, Oct. 17, 2001, no pet.)………………………………..15

Cont’l Cas. Co. v. Guzman, No 04-07-00589-CV, 2009 WL 136926, at *5 (Tex. App. –San Antonio Jan. 21, 2009, pet. denied)…………………………….22

Cotton Patch Cafe, Inc. v. McCarty, 2006 WL 563307, at *6 (Tex. App. -- Fort Worth Mar. 9, 2006, no pet.)……………………………...16, 24

Daniel v. Fort Worth & Rio Grande Ry. Co., 72 S.W. 578 (Tex. 1902)………………………………………………………………………..36

Davis v. McCray Refrigerator Sales Corp., 150 S.W.2d 377 (Tex. 1941)………………………………………………………………………..30

Day v. Tripp, 1999 WL 546869 (Tex. App. -- Austin July 29, 1999)………………………………………………36

Dezso v. Harwood, 926 S.W.2d 371 (Tex. App.--Austin 1996, writ denied)……………………………………………16

iv Fluor Daniel, Inc. v. H.B. Zachary Co., Inc., 2005 WL 2559773, *3 (Tex. App. – Corpus Christi Oct. 13, 2005, pet. denied) (mem. op.)……………..32

Fresh Coat, Inc. v. Life Forms, Inc. 125 S.W.3d 765 (Tex. App. – Houston [1st Dist.] 2003, no pet.)…………………...………………33

Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex.1989)………………………………………………………………………...13

Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008)………………………………………………………………………..36

Gilstrap v. Calley, 2004 WL 2812881 (Tex. App. Houston [14th Dist.] Dec. 9, 2004)……………………………………13

Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009)………………………………………………………………………..13

Grondona v. Sutton, 991 S.W.2d 90 (Tex. App. – Austin 1998, pet. denied) (per curiam)……………………………..12

Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866 (Tex. App.--Houston [1st Dist.] 1995, no writ)…………………………………...16

Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695 (Tex. 1990)………………………………………………………………………..15

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992)……………………………………………………………………..…34

v Hunt Oil Co. v. Moore, 639 S.W.2d 459 (Tex. 1982)………………………………………………………………………..29

In re Bokeloh. 21 S.W. 3d 784 (Tex. App. – Houston [14th Dist.] 2000, no pet.)………………………………….11

In re Griffith, 2003 WL 21508337, at *1 (Tex. App.-- San Antonio July 2, 2003, mandamus denied)………………….27, 28

Irlbeck v. John Deere Co., 714 S.W.2d 54 (Tex. App. -- Amarillo 1986, no writ)...…………………………………………..37

John v. Marshall Health Servs., Inc. 58 S.W.3d 738 (Tex. 2001)………………………………………………………………………..11

Jones v. Griege, 803 S.W.2d 486 (Tex. App.--Dallas 1991, no writ)………………………………………………...29

Jones v. Rabson & Broocks, LLC, 2003 WL 302439, at *3 (Tex. App. – Houston [1st Dist.] Feb. 13, 2003, no pet.) (mem. op.)……………..32

Lefton v. Griffith, 136 S.W.3d 271 (Tex. App. San Antonio 2004, no pet.)……………………………………….26, 36

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)……………………………………………………………27, 32, 33, 36

LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863 (Tex. App. – Fort Worth 2013, no pet.)…………………………………………...16

vi Lucas v. Clark, 347 S.W.3d 800 (Tex. App.—Austin 2011, pet. denied)…………………………………………...34

Marquez v. Greig ex rel. Texas Stars Cheerleading, 2012 WL 3228710, No. 01-10-01118-CV, op. at 3 (Tex. App. –Houston [1st Dist.] 2012, no pet.) (mem. op.)………………………25

McClain v. USA Today Newspaper, 2010 Tex. App. 2010 WL 2404651 (Tex. App. --Dallas June 17, 2010)……………………………………………….14

McDonald v. Newmyer, 775 S.W.2d 652 (Tex. App.--Houston [1st Dist.] 1989, writ denied)………………………………..9

Mem'l Hosp. v. Gillis, 741 S.W.2d 364 (Tex. 1987)………………………………………………………………………..11

Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App.--Corpus Christi 1996, writ denied)………………………….........15, 23

Payne & Keller Co. v. Word, 732 S.W.2d 38 (Tex. App.--Houston [14th Dist.] 1987,writ ref'd n.r.e.)……………………...15, 23

Pena v. McDowell, 201 S.W.3d 665 (Tex. 2006)………………………………………………………………………..14

Priest v. Texas Animal Health Comm'n, 780 S.W.2d 874 (Tex. App.-Dallas 1989, no writ)…………………………………………………29

Primate Construction, Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994)………………………………………………………………………..26

vii Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226 (Tex. 1999)…………………………………………………………………………9

Ragsdale v. Progressive Voter League, 801 S.W.2d 880 (Tex. 1990)………………………………………………………………………..35

Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 S.W.3d 903 (Tex. App. – Dallas 2005, pet. denied)……………………………………………22

Regalado v. State, 934 S.W.2d 852 (Tex. App.--Corpus Christi 1996, no writ)……………………………………15, 16

Rosedale Partners v. 131st Judicial Dist. Court, 869 S.W.2d 643 (Tex. App. -- San Antonio 1994)……………………………………………...28, 29

Sheik Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP, 2011 WL 3964573 (Tex. App. Dallas Sept. 9, 2011)………………………………………………….29

Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802 (Tex. App. -- Waco 2007, no pet.)………………………………………………..37

Southwestern Bell Mobile Sys. v. Franco, 971 S.W.2d 52 (Tex. 1997) (per curiam)………………………………………………………….37

Stephenson v. Corporate Servs., Inc., 650 S.W.2d 181 (Tex. App. –Tyler 1983, writ ref’d n.r.e.)………………………………………...21

Sutton v. Hisaw & Assocs. Gen. Contrs., Inc., 65 S.W.3d 281 (Tex. App. –Dallas 2001, pet. denied)……………………………………………37

viii Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515 (Tex. 1999)………………………………………………………………..34, 35, 37

Verburgt v. Domer, 959 S.W.2d 615 (Tex. 1997)………………………………………………………………………..12

Whitaker v. Rose, 218 S.W.3d 216 (Tex App.—Houston [14th Dist.] 2007, no pet.)………………………………….34

Williams v. Williams, 150 S.W.3d 436 (Tex. App. –Austin 2004, pet. denied)………………………………………..15, 16

Zamarripa v. Sfuentes, 929 S.W.2d 655 (Tex. App. – San Antonio 1996, no writ)…………………………………………28

Zepeda v. Giraud, 880 S.W.2d 833 (Tex. App. – San Antonio 1994)…………………………………………………...9

Zhao v. Lone Star Engine Installation Ctr., No. 05-09-01055-CV, 2009 WL 3177578, at *1 (Tex. App. –Dallas Oct. 6, 2009, pet. denied)……………………………………12

ix Statutes and Rules Page

TEX. R. APP. P.4.2 …………………………………………………7, 8, 11, 13, 14 TEX. R. APP. P. 4.2(a)(1).......................................................................................10 TEX. R. APP. P. 4.2(c)……………………………………………………………11 TEX. R. APP. P. 26.1…………………………………………………………... 6, 8 TEX. R. APP. P. 26.1(a)…………………………………………………………..10 TEX. R. APP. P. 26.1(c)………………………………………………………7, 8, 9 TEX. R. APP. P. 26.3………………………………………………………..7, 8, 12 TEX. R. APP. P. 30………………………………………………………………...9 TEX. CIV. PRAC. & REM 38.004……………………………………………….36 TEX. R. CIV. P. 99(b)………………………………………………………...16, 19 TEX. R. CIV. P. 99(b)(4)…………………………………………………………25 TEX. R. CIV. P. 99(b)(8)…………………………………………………………21 TEX. R. CIV. P. 106 ……………………………………………………………...26 TEX. R. CIV. P. 106(a)(2)………………………………………………….....20, 26 TEX. R. CIV. P. 107(b)…………………………………………………...20, 25, 26 TEX. R. CIV. P. 107(b)(4)………………………………………………………..20 TEX. R. CIV. P. 107(b)(6)………………………………………………………..23 TEX. R. CIV. P. 107(h)……………………………………………………….26, 27 TEX. R. CIV. P. 306(a)………………………………………………….........10, 11 TEX. R. CIV. P. 306(a)(4)………………………………………………………….7 TEX. R. CIV. P. 306(a)(5)…………………………………… 6, 7, 8, 10, 11, 13, 14 TEX. R. CIV. P. 683…………………………………………………………..30, 31

x No. 01-14-00870-CV

In the Court of Appeals For the First District of Texas Houston, Texas

Elishah Sawyers; Pax Freight & Crate, Inc.; and Robin Sawyers, Appellants vs.

Mark Carter and Sally Carter, Appellees

Appeal from the 506th Judicial District Court of Waller County, Texas Trial Court Cause No. 14-07-22604

APPELLEES’ BRIEF

TO THE HONROABLE FIRST COURT OF APPEALS:

STATEMENT OF THE CASE

This was a suit for permanent injunctive relief and private nuisance

damages. CR 2-29. After Appellees Mark and Sally Carter obtained a final default

judgment on September 12, 2014 (CR 50-51), Appellants Elishah and Robyn

Sawyer and Pax Crate and Freight, Inc. filed a late notice of appeal and, recently,

a late notice of restricted appeal. (CR 60-61) The late notices fail to invoke

1 Appellate Court subject matter jurisdiction and, therefore, this Court must dismiss

Appellants’ appeal irrespective of any merit of the points of error raised by

Appellants. Notwithstanding the absence of jurisdiction, service was proper, the

default judgment is a final judgment and appealable, and sufficient legal and

factual evidence has been presented via affidavits in support of the default

judgment. In summary, the trial court judgment should be confirmed.

STATEMENT REGARDING ORAL ARGUMENT

Appellee intends to participate in any oral hearing.

STATEMENT OF ISSUES PRESENTED

ISSUE ONE: THE APPELLATE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY AND THE RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND IMPERMISSIBLE.

In the event the Appellate Court decides it has subject matter jurisdiction

and hears the appeal, Appellees present the following issues:

ISSUE TWO: THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND RETURN OF SERVICE WERE VALID.

(Germane to Appellants’ Issues Two through Nine) A review of the record shows that the proper defendants, Appellants herein,

were served.

2 ISSUE THREE: THE DEFAULT JUDGMENT IS A FINAL JUDGMENT AND APPEALABLE. (Germane to Appellants’ Issue One) The language of the judgment, the record as a whole, and the conduct of the

parties confirm the disposition of all parties and claims and, therefore, the

judgment is final.

ISSUE FOUR: FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES (Germane to Appellant's Issues 1 and 3)

Evidence in the form of affidavits attached to Appellees’ petition supports

the trial court's judgment.

STATEMENT OF FACTS

As a matter of background, Mark and Sally Carter, Appellees in this matter

(also, the “Carters”), had been living on their twenty-two acres of rural land

located in Hockley, Texas since 2000 when, in September of 2013, Appellants,

husband and wife, Elishah and Robyn Sawyers (also, the “Sawyers”), purchased

the thirteen-acre property adjoining the Carters’ property. CR 2 – 29. Shortly

thereafter, large amounts of dirt fill were hauled onto the Sawyers’ property to

construct a semi-professional dirt bike track. CR 2-29. Thereafter, dirt bike activity

regularly produced excessively loud, high-pitched noise that could be heard clearly

on any part of the Sawyers’ property, including inside their home. CR 2-29. The

dirt bike activity also produced large clouds of dust, which traveled onto the

3 Sawyers’ property, coating their buildings, yards, vehicles, animals and anyone

outside in dust. CR 2 – 29. The regular dirt bike riding deteriorated the quality of

life of the Appellees. CR 2 – 29.

Appellee Mark Carter informed Appellant Elishah Sawyers of the harm

being caused by the dirt bike riding and requested that the dirt bikes be limited to

smaller, quieter bikes. Appellant Elishah Sawyers refused Mr. Carter’s request and

added that the Sawyers intended to move their business, Appellant Pax Crate &

Freight, Inc., which business uses loud air guns in its regular course of business, to

their Sawyer property along the Carters’ fence line. CR 2 – 29.

The Carters listed their property for sale to escape the noise and dust that

had invaded their property and destroyed their quality of life that they had enjoyed

for approximately fourteen years. CR. 2 – 29. Although the Carters found a

serious buyer, the nuisance caused by the dirt bike racing activities on the

Sawyers’ property directly caused that potential buyer to revoke the offer. CR 2 –

29.

Appellees filed their petition and request for permanent injunctive relief on

July 1, 2014 seeking to recover damages in the amount of $480,000 and a

permanent injunction against (1) the use of excessively loud dirt bikes or other

ATV's on the Sawyers’ property and (2) the construction of Pax Crate & Freight,

Inc. on the Sawyers’ property. CT 2-29.

4 The Appellants acknowledge that they timely e-filed answers to the petition

on August 4, 2014; however, the purported answers are not a part of the trial

clerk’s record. Appellees filed a motion for default judgment on August 21, 2014

that included a request for an oral hearing; Appellees then filed an amended motion

for default judgment on September 3, 2014 and a notice of submission on

September 4, 2014. CR 36 – 49. The notice of submission advised that the motion

would be presented on September 11, 2014 without the necessity of an oral hearing

unless demand for one was made. CR 49.

The motion for default judgment was supported by affidavits, as well as

default admissions, which resulted in the trial court signing a default judgment on

September 12, 2014 that awarded permanent injunctive relief and the amount of

$480,000.00 in damages, plus costs of court, post-judgment interest, and attorney’s

fees. CR 50-51. The damages award stemmed from the fact that the Carters

incurred personal damages as well as property damages, including the loss of a

serious buyer who retracted an offer to purchase the Carters’ property, and

damages for discomfort and annoyance in the amount of $480,000.00 because of

the nuisance created by the Sawyers’ dirt bike racing activities. CR 51.

On October 27, 2014, Appellants filed their notice of appeal. CR 60. On

November 24, 2014, this Court instructed the Sawyers to file a reasonable

explanation for their untimely filing of notice of appeal. On December 14, 2014,

5 the Sawyers filed a Response to the Court’s Inquiry Regarding Jurisdiction (also,

“Response”) that concedes that the court does not have jurisdiction and blames

their late filing of the notice of appeal on the trial clerk for the failure to send a

notice of the default judgment to Appellants. See Response, pp. 2-3, 8 – 10, 17 –

19 and the Affidavits attached to the Response. (also, “Response Affidavits”)

In the Affidavits to their Response, Appellants Robyn and Elishah Sawyers

acknowledge that they e-filed an answer in a timely manner on August 4, 2014 to

the July 1, 2014 petition in their pro se status and attached a copy to their Affidavit

of the answer that they purportedly e-filed, but the answers are not part of the

record, hence the default judgment. Both Robyn and Elishah Sawyers also

acknowledge that had they learned of the default judgment within thirty (30) days

of it being signed, they would have timely filed a post-judgment motion or notice

of appeal. See Affidavits attached to the Response.

Appellants did not file a post-judgment motion or a Texas Rule of Civil

Procedure 306(a)(5) motion in the trial court. Appellants also filed a notice of

restricted appeal on March 18, 2015.

SUMMARY OF ARGUMENT

The Appellate Court lacks subject matter jurisdiction of this appeal and must

dismiss it because Appellants did not file their notice of appeal timely pursuant to

Texas Rules of Appellate Procedure 26.1 or provide a “reasonable explanation” for

6 their late filing of the notice of appeal pursuant to Texas Rules of Appellate

Procedure 26.3, nor did Appellants certify in the trial court the date on which they

acquired actual notice of the default judgment pursuant to Texas Rules of

Appellate Procedure 4.2 and Texas Rules of Civil Procedure 306(a)(4), a

jurisdictional prerequisite.

Their “reasonable explanation” for their late filing of the notice of appeal, to

wit – they acquired knowledge of the default judgment too late to timely file a

motion for new trial or notice of appeal within 30 days of the default judgment -

should have been presented at the trial court in a Texas Rules of Civil Procedure

306(a)(5) hearing prior to filing their notice of appeal. The Texas Rules of Civil

Procedure 306(a)(5) hearing is a prerequisite to subject matter jurisdiction of the

appellate court.

Appellants also filed their notice of restricted appeal late pursuant to Texas

Rules of Appellate Procedure 26.1(c) and did so without first abandoning their

ordinary appeal.

The legal missteps of Appellants cannot be excused because of their pro se

status. However, should the appellate court decide that it has subject matter

jurisdiction, the default judgment should nevertheless be confirmed: (1) the

service of process should not be invalidated for defective service because the

record as a whole, including the petition, citation, and return, shows that citation

7 was indeed served on the proper defendants ( “Appellants” herein) in the suit; (2)

after Appellants’ recognition and treatment of the default judgment as final by their

filing of a notice of appeal, and restricted notice of appeal, Appellants have now

reversed their opinion and claim that the judgment is interlocutory, but a review of

the default judgment, record and conduct of the parties provides a distinct mark of

finality to the default judgment and all parties and claims were disposed of in the

default judgment; and, (3) the affidavit evidence attached to Appellees’ petition is

legally and factually sufficient to support the amounts awarded as damages and

attorney’s fees.

ARGUMENT

FIRST ISSUE PRESENTED

THE APPELLATE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY AND THE RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND IMPERMISSIBLE.

This Court does not have subject matter jurisdiction to hear Appellants’ case

and must dismiss the appeal. Appellants are not entitled to additional time to file

their notice of appeal because they did not satisfy the jurisdictional prerequisites of

Texas Rules of Appellate Procedure 4.2, 26.1, 26.1(c), 26.3 and Texas Rules of

Civil Procedure 306(a)(5). Irrespective of the reversibility of the default judgment

on the basis of any other points of error asserted by Appellants, this Court simply

does not have authority to entertain the appeal because it was not timely perfected 8 and, therefore, must grant Appellees' motion to dismiss. See McDonald v.

Newmyer, 775 S.W.2d 652, 653 (Tex. App.--Houston [1st Dist.] 1989, writ

denied).

Restricted Notice of Appeal: In addition to their filing of a notice of

appeal on October 27, 2014, the Appellants have now also filed a restricted notice

of appeal. However, the restricted notice of appeal was required to be filed no later

than 6 months after the default judgment was signed on September 12, 2014. Tex.

R. Civ. P. 26.1(c). The six-month time limit is mandatory and jurisdictional.

Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)1. The

deadline for the filing of the restricted notice of appeal was March 12, 2015, six

months after the date on which the judgment was signed on September 12, 2014.

Appellants did not file their restricted notice of appeal until March 27, 2014. As

such, regardless of the reversibility of the default judgment on the basis of any

other points of error, the Appellate Court does not have jurisdiction over this

appeal and can do nothing but dismiss the appeal. McDonald v. Newmyer, 775

S.W.2d at 653. Furthermore, Appellants were required to first abandon their

ordinary appeal as both an ordinary appeal and restricted appeal may not be

pursued simultaneously. Zepeda v. Giraud, 880 S.W.2d 833, 834 - 835 (Tex. App.

1 This case concerned a writ of error proceeding filed in 1996 under the former Texas Rules of Appellate Procedure. “Writ of error” appeals have been replaced by “restricted” appeals under the current Texas Rules of Appellate Procedure. See Tex. R. App. P. 30.

9 San Antonio 1994) (An appeal by writ of error from a default judgment in a civil

suit was dismissed for want of jurisdiction because appellant had previously

perfected an ordinary appeal, which was dismissed by the court and not abandoned

by appellant.) Because of the late notice of restricted appeal, even the

abandonment of the ordinary appeal would not preserve this appeal.

Notice of Appeal: The timely filing of a notice of appeal is jurisdictional. A

notice of appeal must be timely filed within thirty days after a judgment is signed

unless the appellant files a motion for new trial, motion to modify the judgment,

motion to reinstate, or request for findings of fact and conclusions of law. Tex. R.

App. P. 26.1 (a). The Appellants did not file a post-judgment motion to extend the

plenary power of the trial court.

The default judgment in this case was signed on September 12, 2014. CR

50- 51. Because Appellants did not file a motion for new trial, the trial court’s

plenary jurisdiction therefore ended on October 12, 2014 and their notice of appeal

was due on October 12, 2014. Appellants filed their notice of appeal on October

27, 2014. CR 60.

Texas Rules of Appellate Procedure. 4.2(a) (1) allows post-judgment

deadlines to be extended if the requirements of Texas Rules of Civil Procedure

306(a) are met. Rule 306(a)(5) provides that a party who did not have notice or

knowledge of a judgment or order may be afforded 30 days from the date he

10 acquired such notice or knowledge in order to invoke the trial court's plenary

jurisdiction, provided that he can prove in the trial court, on sworn motion and

notice, the date on which the party or his attorney first either received a notice of

the judgment or acquired actual knowledge of the signing and that this date was

more than twenty days after the judgment was signed. Tex. R. Civ. P. 306(a)(5).

After hearing the motion, the trial court must sign a written order that certifies the

date when the party or the party's attorney first either received notice or acquired

actual knowledge the judgment was entered. Id.; see John v. Marshall Health

Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001); see also Tex. R. App. P. 4.2(c).

Appellants did not comply with the required Texas Rules of Appellate

Procedure 4.2 that requires compliance with the Texas Rules of Civil Procedure

306(a)(5) to extend the start of the appellate timetable. Id. Compliance with the

provisions of rule 306a is a jurisdictional prerequisite. Mem’l Hosp. v. Gillis, 741

S.W. 2d 364, 366 (Tex. 1987). “Rule 306a plainly requires that this proof be made

in the trial court, not the court of appeals. [Italics added.]” Id.

The record herein does not indicate that Appellants requested a rule 306a

hearing nor does it contain a written order; consequently, Appellants are not

entitled to receive an extension of time for perfecting an appeal under rule 4.2 of

the Texas Rules of Appellate Procedure. See In re Bokeloh, 21 S.W.3d 784, 793

11 (Tex. App. – Houston [14th Dist.] 2000, no pet.); Grondona v. Sutton, 991 S.W.2d

90, 92 (Tex. App. – Austin 1998, pet. denied) (per curiam).

The Appellants also did not file a motion in the Appellate Court pursuant to

Texas Rules of Appellate Procedure 26.3, to extend the 30-day period by the 15-

day grace period to file the notice of appeal. In order to benefit from the 15 day

extension, a motion for extension of time must be filed; however, such motion will

be “necessarily implied” when the appellant has filed the notice of appeal within

that 15 day grace period. Verburgt v. Domer, 959 S.W.2d 615, 617-18 (1997). The

motion must provide a “reasonable explanation” for the failure to file the notice of

appeal. Id.

Appellants herein filed their notice of appeal within the 15-day grace period

but failed to file the companion motion for extension. Following this Court’s denial

of Appellees’ motion to strike the late-filed notice of appeal, this Court instructed

Appellants to provide a “reasonable explanation” for why the notice was filed late.

The Texas Supreme Court has defined "reasonable explanation" to mean

"'any plausible statement of circumstance indicating that failure to file within the

[required] period was not deliberate or intentional, but was the result of

inadvertence, mistake, or mischance.'" Zhao v. Lone Star Engine Installation Ctr.,

No. 05-09-01055-CV, 2009 WL 3177578, at *1 (Tex. App.—Dallas Oct. 6, 2009,

12 pet. denied) (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670

(Tex.1989)).

Appellants acknowledge that their “reasonable explanation” for filing the

notice of appeal after the 30-day period was because of the trial clerk’s failure to

provide notice of the default judgment. See Response, pp. 2-3, 8 – 10, 17 – 19 and

the Affidavits of Appellants attached to the Response.2 Appellants cannot rely as

their “sufficient explanation” on their late notice of default because they failed to

first file a motion in the trial court to certify the date of their actual notice of

default judgment pursuant to Texas Rules of Civil Procedure 306(a)(5) and Texas

Rules of Appellate Procedure 4.2. This was a jurisdictional prerequisite.

Appellants improperly seek a second bite at the apple by their assertion of this

explanation now in this Court, instead of the trial court3, which is prohibited.

Gilstrap v. Calley, 2004 WL 2812881 (Tex. App. Houston [14th Dist.] Dec. 9,

2004).

Appellants’ suggestion that their mistake should be excused because they are

pro se litigants cannot overcome the jurisdictional prerequisite of complying with

2 The absence on the clerk’s docket sheet of the required notice of a default judgment does not result in an inference of error and is not reversible error anyway. Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009) (clerk’s notation in record indicating the inability to locate documents that notice was sent could not be construed as affirmative evidence that trial court failed to provide notice.) 3 Not to mention their attempt for a third bite of the apple by filing the notice of restricted appeal, infra, on March 27, 2015.

13 Texas Rules of Civil Procedure 4.2 and Texas Rules of Civil Procedure 306(a)(5).

Appellees were entitled to offer controverting evidence of the date on which notice

of the judgment was received by Appellants, i.e. an affidavit of the trial court clerk.

Appellants’ attempt to bypass this hearing in the trial court ignores the clear

jurisdiction in this Court. Pro se litigants are held to the same standards of licensed

counsel. Id.; Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006). “To do

otherwise would give a pro se litigant an unfair advantage over a litigant who is

represented by counsel. McClain v. USA Today Newspaper, 2010 WL 2404651

(Tex. App. --Dallas June 17, 2010).

The Appellants’ wish to now cast themselves as inexperienced defendants

who did not know what they were doing is quickly dispelled by their

acknowledgement that they would have filed a post-judgment motion or a timely

notice of appeal had they received notice of the default judgment within 30days of

the judgment, the clear inference being that they would not have filed the requisite

hearing in the trial court under Texas Rules of Appellate Procedure 4.2 and Texas

Rules of Civil Procedure 306(a)(5) or a request for findings of fact. See Response

Affidavits.

The Court of Appeals has no choice but to dismiss for lack of subject matter

jurisdiction based on the failure of Appellants to either timely file their notice of

appeal or obtain a motion in the trial court to certify the date on which they

14 acquired knowledge of the default judgment to extend the plenary power of the

trial court and, hence, the time within which to file a notice of appeal.

SECOND ISSUE PRESENTED

THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND RETURN OF SERVICE WERE VALID.

Appellees do not dispute the well-established requirement of strict

compliance with the rules governing service of citation involving default

judgments; however, 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,

613 (Tex. App.--Corpus Christi 1996, writ denied). Further, as long as the record

as a whole, including the petition, citation, and return, shows that the citation was

served on the proper defendant in the suit, service of process will not be

invalidated. Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus Christi

1996, no writ); Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d at 613;

Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.]

1987,writ ref'd n.r.e.). Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.

Austin 2004, pet. denied) (There was no confusion about whether the correct party

was actually served); see also Higginbotham v. General Life & Accident Ins. Co.,

796 S.W.2d 695, 696-97 (Tex. 1990) (although return did not recite method of

service as required, record demonstrated strict compliance with valid method of

service); Color Smart, Inc. v. Little, No. 04-00-00294-CV, 2001 WL 1230526, at

15 *2 (Tex. App. – San Antonio, Oct. 17, 2001, no pet.) (not designated for

publication) ("Spelling errors, too minor to raise any doubt that the correct person

was served, are insufficient to invalidate service."); LEJ Dev. Corp. v. Sw. Bank,

407 S.W.3d 863, 866 (Tex. App. – Fort Worth 2013, no pet.); Herbert v. Greater

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

1995, no writ)).

Notwithstanding this requirement of strict adherence to rules governing

service, courts distinguish those cases holding that otherwise problematic service

of process will not be invalidated so long as the citation and return show with

reasonable certainty that citation was served on the proper defendant. See Cotton

Patch Cafe, Inc. v. McCarty, 2006 WL 563307, at *6 (Tex. App. -- Fort Worth

Mar. 9, 2006, no pet.); citing Regalado v. State, 934 S.W.2d at 854; Dezso v.

Harwood, 926 S.W.2d 371, 374 (Tex. App.--Austin 1996, writ denied) (upholding

default judgment even though wrong person was sued because record clearly

showed proper defendant received service and knew she was intended defendant.)

In Williams, supra, the court of appeals held that even though the citation

omitted the name of the petitioner and was not directed to a sheriff or constable,

clearly not minor omissions, it otherwise complied with the requirements for

proper service of citation under Texas Rules of Civil Procedure 99(b). Williams v.

Williams, 150 S.W.3d at 444-445. The Williams court of appeals based their

16 holding on the appellant’s testimony at her motion for new trial that she had been

served, that she had carefully read all of the papers served on her, and that,

although she had drafted an answer, she had not mailed it until after the default

judgment was rendered. Id. Because the appellant’s testimony left no question that

the correct defendant had been properly served, the court of appeals held that the

trial court did not err in assuming personal jurisdiction of appellant. Id. The court

explained that the purpose of requiring strict adherence to the rules governing

service of citation is to ensure that there is no question about whether the proper

party has been served before a default judgment is rendered. Id. at 444. “As long

as the record as a whole, including the petition, citation, and return, shows that the

citation was served on the defendant in the suit, service of process will not be

invalidated [italics added].” Id.

A similar review herein of the record, including the petition, citations, and

returns, also leaves no question that before the default judgment was rendered, the

proper party defendants had been served. Further, both Elishah Sawyer and Robin

Sawyer acknowledge in their Affidavit that they “thought” they had timely e-filed

an answer on August 4, 2014 for the three Appellants, the irrefutable inference

being that Appellants, without stating in so many words, had been served and did

not dispute the propriety of service of process on them:

“After I found out that Mark Carter and Sally Carter filed the Lawsuit through their attorney, Jaclyn D. Patton, I took steps to make sure that an 17 answer was filed in the lawsuit for myself (Elishah Sawyers), Robin Sawyers, and Pax Crate & Freight, Inc. I formed the belief by reading the citation that the answer of Elishah Sawyers, Robin Sawyers and Pax Crate & Freight, Inc., was due to be filed with the Clerk of the Waller County District Court on or before August 4, 2014. [Para.] I believed that a pro se answer had been e-filed on behalf of Elishah Sawyers, Robin Sawyers and Pax Crate & Freight, Inc. in the lawsuit on August 4, 2014. . . .”

The Affidavits clearly establish that the proper Defendants were served with

citation and thought they had filed a timely answer, albeit there is no record of an

answer, hence the request for a default judgment. Appellants’ Affidavit testimony

that “after [they] found out [that Appellees filed the petition], they took steps to

make sure that an answer was filed [on August 4, 2014]” seems to be a

disingenuous exercise to avoid stating the obvious, that the petition had been

“served” on Appellants before they “attempted” to e-file an answer. Appellants’

testimony that they would have filed a motion for new trial within 30 days of

receiving notice of the default judgment further reinforces their recognition of the

service of process as proper and not defective. Therefore, this Court should

overrule Appellants’ eight assertions of error (issues two through nine) because

there is no question that the proper parties were served.

Nevertheless, in the event that this Court disagrees with the foregoing

argument for proper service, in the alternative, Appellees assert the following

argument: Despite the various errors asserted in issues two through nine, a review

of the record, citations, returns and petition show strict adherence to the

18 requirements for proper service of citation under Texas Rules of Civil Procedure

99(b), as follows:

a. In the second issue, Appellants argue that error is apparent on the face

of the record because of the absence of Elishah Sawyer’s signature on the

certified mail return receipt. The record, including the petition and affidavits

attached to the petition, establishes or raises a presumption that Appellant

Robin Sawyers is Elishah Sawyers’ wife (CR 4 -25, 30) who signed, as his

agent, the certified mail return receipt for the service of process and petition

that were addressed to Elishah Sawyers at their last known address of 23658

Margerstadt Road, Hockley, Texas 77447. CR 43. The signature box on the

return indicated that Robin Sawyers was signing either as the “addressee” or

“agent” of the addressee, depending on which box was checked. CR 34.

Since Robin Sawyers is not the “addressee”, then it is reasonable that the

trial court, not presented with controverting evidence, presumed that she

intended to sign as her husband’s agent. Furthermore, nowhere in the record

or in Appellant Elishah Sawyer’s Affidavit has he disputed his wife’s

authority to sign as his authorized agent. Thus, this Court should overrule

this second issue.

b. In the third issue, Appellants argue that error is apparent on the

face of the record because the two returns of service addressed to Elishah

19 Sawyers and Robin Sawyers fail to state the date and time that the process

was received for service as required by Texas Rules of Civil Procedure

107(b)(4).

Rule 106 (a) (2) of the Texas Rules of Civil Procedure allows as a

valid method service by certified mail, return receipt requested with a copy

of the citation and petition attached. Rule 107(b) requires eleven items to be

included in “the return, together with any documents to which it is attached

(italics added).” Tex. R. Civ. P. 107 b. A review of the record shows that

the Appellees requested that citations be issued on July 9, 2014 and then

again on July 10, 2014, both file-stamped by the Waller County District

Clerk. The return of service together with the documents attached thereto

indicate the date and time that the Waller County District Clerk’s office

issued the process for service on July 11, 2014 and the date that the certified

mail was served on Appellants on July 14, 2014, as indicated on the green

cards (CR 30 – 34). It is irrefutable that the clerk delivered the service

documents to the US Mail Service between July 11 th and 14th. Therefore,

based on the foregoing and the absence in Appellants’ brief of a denial that

the clerk performed this step, the Appellate Court should overrule this issue.

c. In the fourth issue, Appellants argue that error is apparent on

the face of the record because the citation issued to Appellant Pax Crate &

20 Freight, Inc. omitted the “Inc.” in violation of Texas Rules of Civil

Procedure 99(b)(8).

Because a review of the record, the citation, petition, and return of

service shows that the correct name of the Appellant with the “Inc.” included

has been served (CR 3 -4), the omission of “Inc.” after “Pax Crate &

Freight” in the citation should not invalidate service of process. The purpose

of citation of service is to give notice to a defendant that he has been sued,

by whom, and for what so that due process may be effected and the

defendant may appear and defend the claims against him. See Stephenson v.

Corporate Servs., Inc., 650 S.W.2d 181, 182-183 (Tex. App. – Tyler 1983,

writ ref’s n.r.e.) (“[O]mission of a corporate designation from the return of

service did not invalidate service when the citation and attached petition

both fully named the defendant with the proper designation.” Therefore, this

issue should be overruled.

d. In the fifth issue, Appellants argue that error is apparent on the

face of the record because the return of service addressed to Pax Crate &

Freight was served on Elishah Sawyer and not on Pax Crate & Freight, Inc.

Service was made on the Pax Freight & Crate, Inc.’s authorized agent,

Elishah Sawyer, whose agency relationship with that entity is established in

the petition. CR 3 - 4. “A recital in a petition that names a person or entity

21 as the registered agent for service on the defendant is prima facie evidence

of that fact [citations omitted].” Cont’l Cas. Co. v. Guzman, No 04-07-

00589-CV, 2009 WL 136926, at *5 (Tex. App. –San Antonio Jan. 21, 2009,

pet. denied).

Service on Appellant Pax Crate & Freight, Inc. was proper because

the record, including the citation, petition and return, properly names the

corporate Appellant and shows service upon its authorized agent: the

petition properly names “Defendant Pax Crate & Freight, Inc. [that] may be

served with citation in this cause by serving its registered agent for service,

Elishah Sawyers”; the citation is directed to “Pax Crate & Freight, by

serving its authorized agent Elishah Sawyer”, and the return names “Elishah

Sawyer”. CR 3 - 4, 35.

Appellants cited as authority Reed Elsevier, infra, in arguing improper

service on Pax Crate & Freight based on the return indicating service only

on “Elishah Sawyer”. However, that case is distinguishable. The record in

the current case, unlike the record in Reed Elsevier, describes the

relationship between Pax Crate & Freight, Inc. and the person served,

“Elishah Sawyer”, as the registered agent for the corporation. CR 3 -4. See

Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180

22 S.W.3d 903, 905-06 (Tex. App. – Dallas 2005, pet. denied). Therefore, the

Appellate Court should overrule the fifth issues.

e. In the sixth issue, Appellants argue that error is apparent on the

face of the record because the returns of service pertaining to Elishah and

Robin Sawyers fail to correctly state the address served in violation of

107(b)(6) because of an “(s)” that is randomly placed after the zip code of

the address on the returns. The return receipts (the “green cards”) have the

correct address. CR 34. Appellees assume that Appellants are referring to

the “(s)” following the zip code on the “certificate of delivery by mail”

located at the bottom of the same page as the citation. CR 32 – 33.

As stated above, 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 at 613 (omission of accent mark and of corporate

designation and substitution of symbol " at " for word "at" are defects that do

not invalidate service); see also Cockrell v. Estevez, 737 S.W.2d 138, 140

(Tex. App.--San Antonio 1987, no writ) (misspelling of defendant's name in

citation did not invalidate service); Payne & Keller Co. v. Word, 732 S.W.2d

38, 41 (Tex. App. Houston [14th Dist.] 1987, writ ref’d. n.r.e.) (judgment

upheld where petition and citation reflected registered agent as "Philippe

Petitfrere," and return reflected "Philipee Petitfreere").

23 In another case involving service of process and a questionable zip

code, the court of appeals held that service of citation was not defective

based on an incorrect digit in the zip code on the return. Cotton Patch Cafe,

Inc. v. McCarty, 2006 WL 563307 (Tex. App. Fort Worth Mar. 9, 2006, no

pet.). “[T]he return clearly complies with the requirements of Rule 107, but

simply contains an incorrect final numeral in the registered agent's zip code.

The zip code in McCarty's petition correctly states that the registered agent's

zip code is "75063," the citation contains the correct zip code on the same

page as the officer's return, and Cotton Patch does not argue that it was not

served.” Id.

Rule 107 (b) requires the eleven required items to be included in “the

return, together with any documents to which it is attached (italics added).”

Tex. R. Civ. P. 107 (b). A review of the record herein shows that but for the

“(s)” after the zip code in the “certificate of delivery by mail”, the addresses

of Appellants Elishah and Robin Sawyer are identical on the petition,

citation, and return receipts, all which omit any “(s)” after the zip code.

Similar to Cotton Patch, supra, the petition and citation state the correct zip

code and there is a slight discrepancy in the address in a different section of

the record.

24 Appellants’ citation to Marquez v. Greig ex rel. Texas Stars

Cheerleading, 2012 WL 3228710, No. 01-10-01118-CV, op. at 3 (Tex. App.

–Houston [its Dist.] 2012, no pet.) (mem. op.) should be rejected as

authority. That case is distinguishable. In addition to the presence of a minor

discrepancy in the service address, the return was marked “unclaimed”.

Thus, because Appellants do not claim in their brief that they did not

receive service, and because the citation and petition show that citation was

actually served on Appellants at the correct address with the correct zip

code, the trial court should not be deprived of jurisdiction because of the

minor discrepancy of the addition of the “(s)” after the zip code.

f. In the seventh and eighth issues, Appellants argue that error is

apparent on the face of the record because the returns of service and

citations, respectively, fail to provide an accurate description of what

pleading was served as required by Texas Rules of Civil Procedure 107(b)

(3) and Texas Rules of Civil Procedure 99(b)(4). Rule 107(b) requires

eleven items to be included in “the return, together with any documents to

which it is attached (italics added).” Tex. R. Civ. P. 107 (b). A review of the

record shows that the citation, return of service, and petition provide the

required description of the pleading served as “Plaintiffs’ Original Petition

and Request for Permanent Injunction”. The Supreme Court case submitted

25 by Appellants is distinguishable because, unlike in the current case, the

petition attached to the return was a prior version that had omitted the name

of the defendant. Primate Construction, Inc. v. Silver, 884 S.W.2d151 (Tex.

1994). The Appellate Court should overrule this eighth issue.

g. In the ninth issue, Appellants assert as error that the returns of

service do not indicate a clerk’s file mark indicating proof of service and,

therefore, it is not possible to show that the proof of service was on file for

ten days, exclusive of the day of filing and the day of judgment as required

by Texas Rules of Civil Procedure 107(h). However, rule 107(h) provides

that the proof of service that is required to be on file with the clerk of the

court for the ten day period is to be “as ordered by the court in the event

citation is executed by an alternative method under Rule 106.” The

alternative method under Rule 106 (a) (2) refers to service by certified mail,

as was done in this case. In the current case, the citation instructs that the

return must be attached to the citation pursuant to Rule 106 (a) (2) and the

return receipts that are attached as instructed show that Elishah and Robin

Sawyer were served on July 14, 2014 (CR 33 – 34). Since the default

judgment was granted almost two months later on September 12, 2014. CR

50 – 51, the required 10-day period was met. See Lefton v. Griffith, 136

S.W.3d 271 (Tex. App. San Antonio 2004, no pet.). The presumption that

26 the procedure and method of service followed by the trial court clerk to

deliver citation of service by certified mail was “as ordered by the court” has

not been rebutted in Appellants’ brief. Accordingly, the return of service was

on file for the ten day period required under Texas Rules of Civil Procedure

107(h) before the default judgment was granted. Therefore, the Court should

overrule this issue.

THIRD ISSUE PRESENTED

THE JUDGMENT IS FINAL AND APPEALABLE, NOT INTERLOCUTORY.

"A judgment issued without a conventional trial on the merits is final for

purposes of appeal if and only if either it actually disposes of all claims and parties

then before the court, regardless of its language, or it states with unmistakable

clarity that it is a final judgment as to all claims and parties. [Italics added.]"

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). “[It is necessary

to] divine the intention of the trial court from the language of the decree and the

record as a whole, aided on occasion by the conduct of the parties." In re Griffith,

2003 WL 21508337, at *1 (Tex. App.--San Antonio July 2, 2003, mandamus

denied). "An order can be a final judgment for appeal purposes even though it

does not purport to be if it actually disposes of all claims still pending in the case."

Lehmann v. Har-Con Corp., 39 S.W.3d at 204. The absence of a Mother Hubbard

recital is not determinative. Id. at 199-200. “The standard Mother Hubbard clause

27 is used in interlocutory orders so frequently that it cannot be taken as any indicator

of finality.” Id. at 204; Zamarripa v. Sfuentes, 929 S.W.2d 655, 657 (Tex. App.-

San Antonio 1996, no writ).

A review of the record in this case when considered in conjunction with the

conduct of the parties confirms the finality of the judgment because it disposes of

all claims – in effect, the judgment has a “distinct stamp of finality.” See In re

Griffith, 2003 WL 21508337 at *4. Contrary to Appellants’ claim that the default

judgment failed to dispose of the request for prejudgment interest and injunctive

relief, Appellees’ request for prejudgment interest was abandoned and the

judgment disposes of the request for injunctive relief.

Pre-judgment Interest: Appellants cite to Rosedale Partners v. 131st

Judicial Dist. Court, 869 S.W.2d 643, 648 (Tex. App. San Antonio 1994) for

authority for their claim that the absence of an award for prejudgment interest

renders the default judgment an interlocutory judgment. In fact, this case

additionally serves as authority for the Appellees’ claim that they abandoned their

claim for prejudgment interest. The appeals court in Rosedale, supra, held that the

judgment was interlocutory, in part, because the default judgment failed to include

an award of prejudgment interest. The Rosedale court of appeals stated that “it

[was] crucial for us to know when Rosedale decided to abandon or waive its

remaining requests [for prejudgment interest].” Id. Because nothing in the record

28 indicated the date on which the claim was abandoned, the court was unable to

consider whether or not the claim for prejudgment interest was abandoned. Id., see

also Jones v. Griege, 803 S.W.2d 486, 487-88 (Tex. App.--Dallas 1991, no writ)

(“Griege's notice to the appellate court of his decision to waive the request for

punitive damages established that the judgment was now final and the appellate

court had jurisdiction over the appeal.” )

Unlike Rosedale, supra, in the current case, there is a date on which the

claim was abandoned – September 23, 2014, the date on which the trial clerk

prepared abstracts of judgment upon the implied request of the Appellees. CR 52 -

55.4 Therefore, the absence of an award of prejudgment interest does not negate

the finality of the default judgment.

Injunctive Relief: As to Appellants’ claim that the judgment is interlocutory

because it did not dispose of the request for injunctive relief, their argument has no

merit. In an appeal from a permanent injunction, the standard of review is whether

the trial court committed a clear abuse of discretion. Priest v. Texas Animal Health

Comm'n, 780 S.W.2d 874, 875 (Tex. App.-Dallas 1989, no writ).

4 The other two cases cited to by Appellants on the issue of the award of prejudgment interest are also distinguishable from the current case: in Hunt Oil Co. v. Moore, 639 S.W.2d 459 (Tex. 1982), there was no argument presented for the abandonment of the claim for prejudgment interest; in Sheik Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP, 2011 WL 3964573 (Tex. App. Dallas Sept. 9, 2011), the appellant had been requested to brief the issue of the finality of the judgment from the standpoint of the pending claim of prejudgment interest, but appellants addressed a different issue instead, omitting to brief the issue of finality, leaving the court no choice but to dismiss as an interlocutory judgment. 29 Texas Rules of Civil Procedure 683 requires that every order granting an

injunction shall do the following: (1) set forth the reasons for its issuance, (2) be

specific in terms, (3) describe in reasonable detail and not by reference to the

complaint or other document, the act or acts sought to be restrained, (4) be binding

only on the parties to the actions and their agents and those persons in active

concert or participation with them who receive actual notice of the order. See Tex.

R. Civ. P. 683; see also Adjust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex.

App.-Corpus Christi 1999, no pet.) (If a plaintiff seeks injunctive relief that is

ancillary to other relief sought, Rule 683 applies to permanent injunctions.) "It is

not essential that the judgment in express terms specifically dispose of each issue.

That it does dispose of a particular issue may be inferred from other provisions

thereof, provided such an inference follows as a necessary implication." Davis v.

McCray Refrigerator Sales Corp., 150 S.W.2d 377, 377-78 (Tex. 1941).

In this case, the injunction language in the default judgment complies with

Texas Rules of Civil Procedure 683 or that compliance may be inferred from other

provisions in the default judgment that follow as a necessary implication. The first

order of injunctive relief is an “injunction against unreasonable and excessive noise

and dust created by the riding of large dirt bikes on Defendants' property”. CR 50

– 51. The second order of injunctive relief is an “injunction against moving

30 Defendants' crating business, Pax Crate and Freight, Inc., to Defendants'

Margerstadt Road property”. CR 50 – 51.

Regarding the first injunction, the reason for its issuance is incorporated in

the injunction itself – to wit, “the unreasonable and excessive noise and dust

created by the riding of large dirt bikes”. CR 50 – 51. The specificity of the

“property” may be inferred from reading both injunctions together that the

“property” referred to in the first injunction is the property of Elishah and Robin

Sawyers on Margerstadt Road; the injunction language describes in reasonable

detail the activity sought to be restrained - the riding of large dirt bikes on the

Defendants Sawyers’ Margerstadt property, and it is clear that the restricted

activity is binding on Defendants Sawyers and anyone on their Margerstadt Road

property. CR 50 – 51. The second injunction is also in compliance as the required

information is either clear or can be naturally implied that Defendant Pax Crate

and Freight, Inc. is prohibited from being moved to the Margerstadt property of

Defendants Elishah and Robin Sawyers. CR 50 – 51. As the two injunctions are in

compliance with Texas Rules of Civil Procedure 683, the trial court did not abuse

its discretion in disposing of the request for injunctive relief. CR 50 – 51.

Appellants now would have this Court treat the judgment as interlocutory

despite their treatment of the default judgment as final by filing a notice of appeal,

albeit untimely. CR 60 – 61. A further indicator of their recognition of the

31 judgment as final is found in the Affidavits where they acknowledge that had they

acquired actual notice of the default judgment within 30 days of the signing of the

default judgment, they would have filed a motion for new trial, the irrefutable

inference being that they would have treated the default judgment as a final

judgment. And, lastly, they also filed the notice of appeal indicating their treatment

of the judgment as final. CR 60 – 61. See also Fluor Daniel, Inc. v. H.B. Zachary

Co., Inc., 2005 WL 2559773, *3 (Tex. App. – Corpus Christi Oct 13, 2005, pet.

denied) (mem. op.) (citing Lehmann v. Har-Con Corp., 39 S.W.3d at 203); see also

Jones v. Rabson & Broocks, LLC, 2003 WL 302439, at *3 (Tex. App. – Houston

[1sst Dist.] Feb. 13, 2003, no pet.)(mem. op.) (The appellate court considered the

defendant’s treatment of the judgment as final by the filing of a motion for new

trial and notice of appeal in its decision to confirm the lower court summary

judgment as a final judgment.)

In addition to the foregoing, the following indicators reinforce the finality of

the default judgment: (1) the judgment awarded court costs and postjudgment

interest which, by definition, cannot begin to accrue until after a final judgment;

(2) when construed with the award of postjudgment interest and costs, and the

disposition of all claims and parties as shown hereinabove, the judgment’s

recitation that the judgment is available for execution, although not determinative,

reinforces the court’s intent that the judgment is final; (3) the absence of a Mother

32 Hubbard clause is not determinative; and (4) the trial court clerk recognized the

judgment as final based on her issuance of abstracts of judgment and the

preparation of a writ of execution. CR 50 – 51.

It is patently clear from the judgment and conduct of the trial court and the

parties that the default judgment is final and appealable. Even if, arguendo, the

default judgment awards more relief that that to which Appellees are entitled, the

judgment is still final, not interlocutory as argued by Appellants. See Lehmann v.

Har-Con Corp., 39 S.W.3d at 204 (“Granting more relief than the movant is

entitled to makes the judgment reversible, but not interlocutory [citations

omitted].”)

Based on the foregoing argument and authorities, the errors asserted by

Appellants regarding whether or not the default judgment is final and appealable

should be overruled. A review of the record, the judgment itself, the actions of the

district trial clerk, the treatment of the default judgment as final by the Appellants,

and the indication of abandonment of the request for prejudgment interest by

Appellants all lend a “distinct mark of finality” to the default judgment.

However, in the alternative, should this Court be uncertain about the trial

court's intent as to the finality of the judgment, the Court may "abate the appeal to

permit clarification by the trial court." Id. at 206; see also Fresh Coat, Inc. v. Life

Forms, Inc., 125 S.W.3d 765, 768 (Tex. App. – Houston [1st Dist.] 2003, no pet.)

33 (“[T]he Texas Supreme Court has suggested that, in a case in which we are

uncertain about the trial court's intent in signing a judgment, we may abate the

appeal to permit clarification by the trial court.").

FOURTH ISSUE PRESENTED

FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES. In Appellants’ tenth point of error, they contend that the trial court erred by

awarding unliquidated damages without an evidentiary hearing. However, this

Court should overrule Appellants’ point of error because Appellees’ claims for

attorney’s fees and damages were properly pled and probative admissible evidence

in the form of affidavit testimony was properly considered by the trial court.

When a no-answer default judgment 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 v. Rose, 218 S.W.3d 216, 220 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). "After a default judgment occurs,

unliquidated damages must be proven to the trial court." Lucas v. Clark, 347

S.W.3d 800, 803 (Tex. App.—Austin 2011, pet. denied). Unliquidated damages

can be proved up to the trial court through an evidentiary hearing or with affidavits.

34 Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d at 515 - 517 (A trial court

does not err when it considers affidavits in rendering a default judgment.)

Attorney’s Fees: “An uncontested affidavit that establishes a prima facie

case for attorney's fees is legally sufficient to support an attorney's fees award.”

Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d at 515. Clear, direct, and

uncontroverted evidence of attorney's fees is taken as true as a matter of law,

particularly when the opposing party does not rebut the evidence. See Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990).

In this case, Appellees’ attorney submitted an affidavit of necessary and

reasonable attorney’s fees that serves as admissible evidence and was before the

trial court. She testified that she is a duly licensed attorney who is familiar with

the usual and customary attorney’s fees in Waller County, and that $10,000.00 was

a reasonable and customary fee for prosecuting this claim based on her knowledge

of the services rendered to the Carters in this case. Texas Commerce Bank, Nat'l

Ass'n v. New, 3 S.W.3d at 515 - 518. Appellees’ attorney’s uncontroverted

affidavit is sufficient to support the award of attorney's fees. CR 45 – 48.

Appellants also do not dispute the reasonableness and necessity in their

Brief; they merely oppose the absence of an oral hearing. However, an oral

hearing is not mandatory where affidavit testimony is before the court, as in the

current case. Id. And, "[t]he court may take judicial notice of the usual and

35 customary attorney's fees and the contents of the case file without receiving further

evidence in … a proceeding before the court." See Tex. Civ. Prac. & Rem §

38.004; Lefton v. Griffin, 136 S.W.3d, 271, 279 – 80 (Tex. App.-San Antonio

2004, no pet.) (holding in a nonjury case that an appellate court may presume that

the trial court took judicial notice even if the judge did not announce that he was

doing so). Thus, the judgment for attorney's fees herein finds support factually and

legally.

Monetary damages: In this case, the court granted damages without

identifying the theory of liability on which the damages were granted. CR 51.

However, it is not necessary for a judgment to identify on which theory it granted

damages, particularly in a default context where liability has already been

established on all theories of recovery. See Gardner v. U.S. Imaging, Inc. 274

S.W.3d 669, 671 (Tex. 2008); Lehmann v. Har-Con Corp., 39 S.W.3d at 204

("Granting more relief than that to which a movant is entitled makes the order

reversible, but not interlocutory.")

In a nuisance action, a plaintiff may recover damages for a personal injury

caused by the nuisance, such as discomfort, annoyance, and injury to health, in

addition to damages to property.5 Day v. Tripp, 1999 WL 546869 (Tex. App.

Austin July 29, 1999); see also Daniel v. Fort Worth & Rio Grande Ry. Co., 72

5 The plaintiff may recover damages for discomfort and annoyance even absent depreciation of the real property caused by the nuisance. Day v. Tripp, 1999 WL 546869. 36 S.W.578 (Tex. 1902). The measure of damages for discomfort and annoyance is

the amount of money necessary to provide the plaintiff reasonable and fair

compensation for such personal injury. Id. at 579.

Appellees’ affidavits constitute sufficient uncontroverted evidence of

personal injury caused by the nuisance that is sufficient factually and legally to

support the award of damages. It is error for a trial court to not consider the

affidavits. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 811(Tex. App.

Waco 2007, no pet.). Hearsay is even admissible to support a default judgment for

attorney’s fees and damages. Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d

at 517, citing Irlbeck v. John Deere Co., 714 S.W.2d 54 (Tex. App. Amarillo 1986,

no writ).

When challenging the legal sufficiency of the evidence on an issue, the party

without the burden of proof on that issue must show that there is “no evidence” in

support of the default judgment. Sutton v. Hisaw & Assocs. Gen. Contrs., Inc., 65

S.W.3d 281, 284 (Tex. App. Dallas 2001, pet. denied). The court considers only

the evidence and inferences tending to support the trial court's finding, and

disregards all evidence and inferences to the contrary. Southwestern Bell Mobile

Sys. v. Franco, 971 S.W.2d 52, 54 (Tex. 1997) (per curiam). If more than a

scintilla of evidence supports the judgment, the judgment will be upheld. Sutton v.

Hisaw & Assocs. Gen. Contrs., Inc., 65 S.W.3d at 284.

37 The testimony of Appellees is probative on their personal injury damages

and more than a scintilla of evidence has been presented by the affidavits that they

suffered personal and property damages as a result of the private nuisance created

by Appellants. CR 2 – 18. The affidavits of Appellees (CR 8 – 18) are factually

and legally sufficient to support the trial court’s findings that the monetary

damages of Appellees are reasonable and fair compensation to Appellees. CR 8 –

18. If, arguendo, this Court finds otherwise, the Court may remand the issue of

damages to the trial court.

PRAYER

Based on the foregoing, Appellees Mark and Sally Carter pray that the

Appellate Court dismiss this appeal for lack of subject matter jurisdiction. In the

alternative, Appellees pray that this Court confirms the default judgment. In the

event this Court seeks further clarification regarding the finality of the judgment,

Appellees pray that this Court abate the appeal to seek clarification in the trial

court as to the finality of the default judgment. In the event this Court finds error

regarding the award of attorney’s fees and damages, Appellees pray that this Court

remand the issue of damages to the trial court.

38 Respectfully submitted,

TOUGH LAW FIRM, PLLC

/s/ Bruce C. Tough Bruce C. Tough btough@toughlawfirm.net email State Bar No. 20151500 819 Crossbridge Drive Spring, Texas 77373 (281) 681-0808 telephone (281) 681-0809 telecopy Lead Counsel for Appellees Mark Carter and Sally Carter

Certificate of Compliance Based upon the word counting function of Windows, this Brief of Appellees contains 9,106 words excluding the portions of the brief excluded in Texas Rule of Appellate Procedure 9.4(i)(1).

39 Certificate of Service

I hereby certify that a true and correct copy of the foregoing document has been forwarded by e-filing and e-service to all lead counsel of record, on this 8th day of April, 2015, as follows:

Scott Rothenberg LAW OFFICES OF SCOTT ROTHENBERG 2777 Allen Parkway, Suite 1000 Houston, Texas 77019-2165 (713) 667-0052 telecopier scott@rothenberglaw.com email Counsel for Appellants Elishah Sawyers; Pax Freight & Crate, Inc.; and Robin Sawyers /s/ Bruce C. Tough Bruce C. Tough

40 | | Positive As of: April 7, 2015 5:29 PM EDT

Adust Video v. Nueces County Court of Appeals of Texas, Thirteenth District, Corpus Christi May 20, 1999, Delivered ; May 20, 1999, Filed NUMBER 13-95-239-CV

Reporter 996 S.W.2d 245; 1999 Tex. App. LEXIS 3790

ADUST VIDEO, Appellant, v. NUECES COUNTY, not apply to a permanent injunction which was the sole TEXAS, Appellee. relief sought. The court further found that the injunction was reasonably specific. The court determined that the Prior History: [**1] On appeal from the 105th District injunction did not violate appellant's patrons' free speech Court of Nueces County, Texas. rights when the time, place, and manner restrictions imposed were justifiable without reference to the content Disposition: As modified, AFFIRMED. of regulated speech and were narrowly tailored and left ample alternative communication channels. The court Core Terms struck the injunction provision that required patrons' identification because it exerted an impermissible injunction, premises, inspection, sexual activity, patrons, inhibitory effect. The court also struck the entry receipt theater, nuisance, warning, booths, conditions, requirement as unreasonable. warrantless, issuance, disease, notice, rights, sexual, permanent injunction, restrained, adult, unsanitary Outcome condition, public health, requires, violates, safety code, trial court, peep show, restrictions, visibility, operators, The court affirmed as modified a permanent injunction temporary in appellee's favor, because the injunction was reasonably specific and sought protection of the public Case Summary from a public health nuisance. The court struck reporting, random inspection, patron entry receipt, and identification requirements because they were not Procedural Posture reasonably related to the public health nuisance and Appellant sought review of judgment which issued an had an impermissible inhibitory affect upon patrons' injunction on the basis of a public nuisance under Tex. free speech. Health & Safety Code Ann. §§ 341 and 343 (Vernon 1992 & Supp. 1999), in appellee's favor in the 105th LexisNexis® Headnotes District Court of Nueces County (Texas). Civil Procedure > Appeals > Reviewability of Lower Court Overview Decisions > Preservation for Review

Appellant adult store owner challenged an injunction HN1 The party who seeks appellate review of a issued in appellee public health department's favor for a particular point is responsible for presenting a complete public nuisance under Tex. Health & Safety Code Ann. record on that point because it has the burden of §§ 341 and 343 (Vernon 1992 & Supp. 1999). Appellee proving error. contended that unsanitary conditions that occurred through sexual activity on appellant's premises created Civil Procedure > Remedies > Injunctions > Permanent a public health nuisance. The court rejected the Injunctions argument that the injunction violated civil procedure by failing to define what unsanitary conditions existed. The HN2 The court presumes the evidence supports court explained the detailed explanation provision did injunctive relief. 996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1

Civil Procedure > Remedies > Injunctions > Permanent Civil Procedure > ... > Justiciability > Standing > General Injunctions Overview Constitutional Law > ... > Fundamental Freedoms > HN3 Tex. R. Civ. P. 683, provides: every order granting Freedom of Speech > General Overview an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; Constitutional Law > ... > Fundamental Freedoms > shall describe in reasonable detail and not by reference Freedom of Speech > Scope to the complaint or other document, the act or acts sought to be restrained. HN10 In the U.S. Const. amend. I context, litigants are permitted to challenge a statute not because their own Civil Procedure > Remedies > Injunctions > Preliminary & rights of free expression are violated, but because of a Temporary Injunctions judicial prediction or assumption that the statute's very existence may cause others not before the court to HN4 The Tex. R. Civ. P., provision compelling a detailed refrain from constitutionally protected speech or explanation of the reason for the injunction's issuance is expression. held only to apply to temporary injunctions or suits requesting ancillary injunctive relief. Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope Civil Procedure > Remedies > Injunctions > Permanent Constitutional Law > ... > Fundamental Freedoms > Judicial Injunctions & Legislative Restraints > Overbreadth & Vagueness of Legislation HN5 A permanent injunction should not be more comprehensive or restrictive than justified by the Constitutional Law > ... > Fundamental Freedoms > Judicial pleadings, evidence, and usages of equity. & Legislative Restraints > Time, Place & Manner Restrictions Civil Procedure > Remedies > Injunctions > Permanent HN11 Restrictions merely on the time, place, or manner Injunctions of exercise of free speech rights violate no constitutional HN6 An injunction decree must be as definite, clear, protections if sufficiently justified and narrowly enough and precise as possible and when practicable it should drawn. inform the defendant of the acts he is restrained from doing, without calling on him for inferences or Constitutional Law > ... > Fundamental Freedoms > Judicial conclusions about which persons might well differ and & Legislative Restraints > Time, Place & Manner Restrictions without leaving anything for further hearing. HN12 The government may impose reasonable Public Health & Welfare Law > Healthcare > Public Health restrictions of the time, place, or manner of protected Security > Communicable Diseases speech, provided restrictions are [1] justified without HN7 "Sanitary" is defined as a condition of good order reference to the content of the regulated speech, that and cleanliness that precludes the probability of disease they are [2] narrowly tailored to serve a significant transmission under Tex. Health & Safety Code Ann. governmental interest, and that they [3] leave open §341.001(7) (Vernon 1992). ample alternative channels for communication of the information. Civil Procedure > Remedies > Injunctions > Permanent Injunctions Civil Procedure > Remedies > Injunctions > Permanent Injunctions HN8 When the purpose of an injunction is to protect the public, the test of required specificity is reasonableness, HN13 Where the acts of the parties are divisible and in framing the decree, doubt should be resolved regarding lawful and unlawful conduct, an injunction against the violator. may not be framed so broadly so as to prohibit the enjoyment of lawful rights. Civil Procedure > ... > Justiciability > Standing > General Overview Constitutional Law > ... > Fundamental Freedoms > Judicial & Legislative Restraints > Time, Place & Manner HN9 A party may only assert a violation of its own rights. Restrictions Page 2 of 10 996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1

HN14 A city has a substantial interest in regulating Criminal Law & Procedure > Search & Seizure > sexually-oriented businesses. Warrantless Searches > General Overview

HN21 A warrantless search of commercial premises Civil Procedure > Remedies > Injunctions > Permanent may be reasonable when the business is closely Injunctions regulated. In such a case the privacy interests of the Civil Procedure > Appeals > Standards of Review > Abuse owner are weakened and the government interest in of Discretion regulating are higher. Civil Procedure > ... > Standards of Review > Harmless & Constitutional Law > ... > Fundamental Rights > Search & Invited Errors > General Overview Seizure > Scope of Protection Civil Procedure > Appeals > Standards of Review > Criminal Law & Procedure > Search & Seizure > Prejudicial Errors Expectation of Privacy

HN15 The standard of review when a trial court grants HN22 The expectation of privacy that the owner of or denies a permanent injunction is limited to whether commercial property enjoys may, in certain the trial court clearly abused its discretion. circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. Criminal Law & Procedure > ... > Sex Crimes > Obscenity > General Overview Constitutional Law > ... > Fundamental Rights > Search & Seizure > Scope of Protection HN16 Sexual activity in public places is prohibited by the Texas Penal Code. See Tex. Penal Code Ann. Business & Corporate Compliance > ... > Occupational Safety & Health > Administrative Proceedings > Citations §§21.07, 21.08 (Vernon 1994). Theaters and retail & Inspections shops open to the public are public places. HN23 Where congress has authorized inspection but Constitutional Law > ... > Fundamental Rights > Search & made no rules governing the procedures that inspectors Seizure > Scope of Protection must follow, the U.S. Const. amend. IV, and its various restrictive rules apply. HN17 Patrons of adult video theaters have no right to anonymity in viewing films. Constitutional Law > ... > Fundamental Rights > Search & Seizure > Warrants Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview HN18 The U.S. Const. amend. I also protects against HN24 The regulatory statute must perform the two government inhibition as well as prohibition. basic functions of a warrant: it must advise the owner of Constitutional Law > ... > Fundamental Freedoms > the commercial premises that the search is being made Freedom of Speech > Scope pursuant to law and has a properly defined scope, and it must limit the discretion of the inspecting officers. HN19 An identification requirement exerts an inhibitory effect and therefore raises U.S. Const. amend. I issues Counsel: FOR APPELLANT: John J. Fahle, III, Attorney comparable to those raised by direct government at Law, San Antonio, TX. imposed prohibitions. FOR APPELLEE: Walter D. Bryan, Assistant County Constitutional Law > ... > Fundamental Rights > Search & Attorney, Sandra Huhn, Nueces County Attorney's Seizure > Warrants Office, Annette L. Smith, Assistant District Attorney, Carl Criminal Law & Procedure > Search & Seizure > Search Lewis, County Attorney, Corpus Christi, TX. Warrants > General Overview Judges: Before Chief Justice Seerden and Justices HN20 A warrant is generally required for authorities to Dorsey and Hinojosa. Opinion by Justice Dorsey. search portions of a commercial enterprise that are not open to the public. Opinion by: J. BONNER DORSEY Page 3 of 10 996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1

Opinion premises. In addition to provisions requiring a general increase in lighting throughout the establishment, the [*248] OPINION order required verbal and written notices and posted signs warning all who entered that sexual activity was Opinion by Justice Dorsey strictly forbidden within. The trial court ordered that any person desiring entry into a booth or the theater must This action was initiated by the Nueces County Attorney sign an individualized written warning which must at the behest of the Nueces County Public Health include their printed name, phone number, address, Department against Adust Video, appellant, for and driver's license number. Adust is required to violations of the Texas Health and Safety Code. 1 maintain the original of these receipts for random, Following the issuance of a temporary restraining order warrantless inspection by the County. The management and an agreed temporary injunction, the County sought must refuse entry to the booths or theater to any person and received a permanent injunction. The trial court refusing to sign and, if they enter anyway, must call the found a public health nuisance existed and issued an police to report the trespass. "Sexual activity," when injunction which, among other things, prohibits "sexual discovered, must be halted and reported to the police. activity" on the Adust Video premises. Adust appeals by Adust was also required to modify the building so that three points of error, challenging the lack of specificity of the staff would "have a clear view at all times of all the findings of fact, the injunction's failure to afford events occurring within the premises." If the court's notice of what specific acts it prohibits, and violation of intentions were [**4] in any way unclear, the order went appellant's First Amendment right to free speech. on to permanently enjoin Adust from permitting sexual activity within its premises by any person; from [**2] As there is no statement of facts, we rely on the maintaining an unsanitary condition; from tolerating a parties' briefs for the applicable facts. Adust Video owns nuisance; from refusing to comply with the injunction; or and operates an adult book and video store in Nueces from refusing to consent to random warrantless County. In addition to displays of adult literature and inspections by the State. video tapes for sale and rent, the store also offered its patrons eight private, coin-operated viewing booths and Our review of appellant's arguments is seriously limited a sixteen-seat theater for on-site screening of adult because there is no statement of facts. See Brockette v. movies. During December 1994, Nina Sisley, an Sosa, 675 S.W.2d 807, 809 (Tex. App.--Corpus Christi inspector for the county heath agency, twice inspected 1984, no writ). HN1 The party who seeks appellate appellant's business premises and, on both occasions, review of a particular point is responsible for presenting discovered conditions she described as "unsanitary." a complete record on that point because it has the Specifically, Sisley found urine and seminal fluid on the burden of proving error. Simon v. York Crane & Rigging seats, floor, and walls of the restroom, booths, and Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Brockette, theater. The County asserts these conditions create a 675 S.W.2d at 809. HN2 We presume the evidence high risk for the transmission of diseases, including supports injunctive relief. sexually transmitted diseases such as syphilis, gonorrhea, and AIDS. I. THE RULES GOVERNING INJUNCTIONS

The health department notified Adust of its findings and In its first point of error, Adust contends the trial court's afforded Adust an opportunity to clean up the premises. order violates the rules of civil procedure because it The County concluded Adust made no effort to correct does not define what unsanitary conditions exist on these conditions so, pursuant to health and safety code appellant's premises. sections 341.012 and 343.013, sought and obtained a temporary restraining order, followed by [**3] a HN3 Rule of civil procedure 683 provides: temporary [*249] injunction, and finally, after a trial before the court, a permanent injunction. Every order granting an injunction and every restraining order shall set forth the reasons [**5] for its issuance; The trial court's order, in the name of abating a public shall be specific in terms; shall describe in reasonable health nuisance, enjoined "sexual activity" on Adust's detail and not by reference to the complaint or other

1 TEX. HEALTH & SAFETY CODE ANN. §§ 341, 343 (Vernon 1992 & Supp. 1999). Page 4 of 10 996 S.W.2d 245, *249; 1999 Tex. App. LEXIS 3790, **5

document, the act or acts sought to be restrained . . . . health nuisance. Specifically, the trial court found that Adust permitted its patrons to engage in sexual activity TEX. R. CIV. P. 683. which resulted in an unsanitary condition constituting a public health nuisance. We hold the order satisfactorily Though the rule on its face applies to every order states the reasons for its issuance. Appellant's first granting an injunction, HN4 the provision compelling a point of error is overruled. detailed explanation of the reason for the injunction's issuance has been held only to apply to temporary Adust also attacks the trial court's order by way of rule injunctions or suits requesting ancillary injunctive relief. 683 in its second point of error, claiming the order does City of Houston v. Morgan Guar. Intern. Bank, 666 not sufficiently specify what appellant is restrained from S.W.2d 524, 536 (Tex. App.--Houston [1st Dist.] 1983, doing. Specifically, Adust challenges the order's writ ref'd n.r.e.); Gasperson v. Madill Nat'l Bank, 455 language that it is prohibited from "maintaining an S.W.2d 381, 398 (Tex. Civ. App.--Fort Worth 1970, writ unsanitary condition," and from "tolerating a nuisance ref'd n.r.e.); Texas Liquor Control Bd. v. Bacon, 443 to occur within its premises." S.W.2d 312, 317 (Tex. Civ. App.--Austin 1969), rev'd on other grounds, 456 S.W.2d 891 (Tex. 1970); Alexander Rule 683's requirement that orders be specific in terms Schroeder Lumber Co. v. Corona, 288 S.W.2d 829, 835 and describe in reasonable detail the acts to be (Tex. Civ. App.--Galveston 1956, writ ref'd n.r.e.). We restrained applies to permanent injunctions. HN5 A are persuaded that rule 683's requirement for detailed permanent injunction should not be more explanations of reasons for the issuance of the injunction comprehensive or restrictive than justified by the does not apply to a permanent injunction that is the sole pleadings, evidence, and usages of equity. Thompson relief sought by the action. The [**6] rule does apply to v. Thompson [**8] Air Conditioning & Heating, Inc., 884 injunctive relief that is ancillary to other relief sought in S.W.2d 555, 559 (Tex. App.--Texarkana 1994, no writ). the action. In Schroeder, the Galveston court expressly The Texas Supreme Court held: held: "We reach the conclusion that [rule 683] applies only to ancillary injunctive relief and not to final HN6 An injunction decree must be as definite, clear and judgments in suits, the sole object of which is to obtain precise as possible and when practicable it should a perpetual injunction." Schroeder, 288 S.W.2d at 835. inform the defendant of the acts he is restrained from doing, without calling on him for inferences or [*250] The Schroeder rule was applied in Gasperson: conclusions about which persons might well differ and "such rule [683] only applies to ancillary injunctive relief without leaving anything for further hearing. (Citation and not to final judgments." Gasperson, 455 S.W.2d at omitted). But obviously the injunction must be in broad 398. The rule was also applied, although modified, in enough terms to prevent repetition of the evil sought to Bacon (in affirming the issuance of a permanent be stopped, whether the repetition be in form identical injunction) where the court said, "It has been held that to that employed prior to the injunction or (what is far Rule 683 . . . does not apply to permanent injunctions more likely) in somewhat different form calculated to insofar as it provides that the order shall state reasons circumvent the injunction as written. for its issuance." Bacon, 443 S.W.2d at 317. We likewise hold that where the injunction is not ancillary to other San Antonio Bar Ass'n v. Guardian Abstract & Title Co., relief sought, rule 683's provision requiring the injunction 156 Tex. 7, 15, 291 S.W.2d 697, 702 (1956). to state the reasons for its issuance in specific terms does not apply. 2 The order before us contains nine specific instructions to appellant regarding lighting, signage, and its duties [**7] However, even should that provision of rule 683 regarding patrons wishing to use the theater and booths. apply, we hold that the order sufficiently apprized Adust Following these nine detailed instructions are five of the reason for its issuance. The order prohibits general instructions that are apparently intended to appellant from permitting itself to operate as a public anticipate repetition of the behavior lending itself to [**9]

2 State v. Cook United, Inc., 464 S.W.2d 105, 107 (Tex. 1971), held that it was not necessary to state in a temporary injunction why the applicant would be endangered by probable injury, holding that the statute itself declares the injury, by making sales on Saturday and Sunday a public nuisance. Chief Justice Calvert concurred, but stated the requirement of Rule 683 was mandatory. He was recognizing an exception in cases involving injunctive orders restraining statutorily declared public nuisances. Page 5 of 10 996 S.W.2d 245, *250; 1999 Tex. App. LEXIS 3790, **9

creation of a public health nuisance in, as the supreme In its third point of error, Adust challenges the injunction court observed, "somewhat different form calculated to as a violation of its right to free speech under the First circumvent the injunction." Id. Amendment to the U.S. Constitution. 3 It argues that the constraints imposed by the injunction have a "chilling Adust's complaint focuses on two of these general effect" both on its ability to convey its constitutionally instructions. Specifically, it cites orders number two and protected message and the right of its customers to three which prohibit Adust "from maintaining an receive it. By so doing, Adust is asserting the First unsanitary condition within its premises at its [*251] Amendment rights of its customers to view adult films. place of business" and from permitting "a nuisance to [**11] The general rule is that HN9 a party may only occur on its premises." assert a violation of its own rights. "However, HN10 in the First Amendment context, 'litigants . . . are permitted The health and safety code defines HN7 "sanitary" as a to challenge a statute not because their own rights of condition of good order and cleanliness that precludes free expression are violated, but because of a judicial the probability of disease transmission." See TEX. prediction or assumption that the statute's very HEALTH & SAFETY CODE ANN. § 341.001(7) (Vernon existence may cause others not before the court to 1992). Similarly, section 341.011 itemizes twelve refrain from constitutionally protected speech or conditions that constitute public health nuisances, expression.'" Virginia v. American Booksellers Ass'n, including: (5) sewage, human excreta, . . . or other 484 U.S. 383, 394, 98 L. Ed. 2d 782, 108 S. Ct. 636 organic wastes deposited . . . or exposed in such a way (1988) (quoting Secretary of State of Md. v. J.H. Munson as to be a potential instrument or medium in disease Co., 467 U.S. 947, 956-57, 81 L. Ed. 2d 786, 104 S. Ct. transmission to a person or between persons; . . . and 2839 (1984)). (12) an object, place or condition that is possible and We review an injunction on First Amendment grounds probable medium of disease transmission to or between under the same rule as a statute. Adust may assert the humans." TEX. HEALTH & SAFETY CODE ANN. § constitutionally protected rights of its patrons. 4 341.011 (Vernon 1992). [**12] The State concedes, and we so presume for the HN8 When the purpose of an injunction is to protect the purposes of this opinion, that the materials appellant public, [**10] the test of required specificity is seeks to exhibit are presumptively protected by the First reasonableness, and in framing the decree, doubt Amendment to the United States Constitution. [*252] should be resolved against the violator. Lloyd A. Fry Appellant argues that the conditions imposed by the Roofing Co. v. State, 541 S.W.2d 639, 646 (Tex. Civ. trial court infringe upon its free speech rights and those App.--Dallas 1976, writ ref'd n.r.e.); Davies v. of its customers. Unauthorized Practice Comm. of State Bar of Tex., 431 S.W.2d 590, 595 (Tex. Civ. App.--Tyler 1968, writ ref'd HN11 Restrictions merely on the time, place, or manner n.r.e.). Given the definitions supplied by statute of of exercise of free speech rights violate no constitutional "nuisance" and "sanitary conditions," we hold the protections if sufficiently justified and narrowly enough injunction is reasonably specific. drawn. The Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. We overrule appellant's second point of error. 2746 (1989), set out the appropriate standard for reviewing restrictions on the time, place or manner of II. CONSTITUTIONAL ATTACKS speech:

3 Adust's brief refers to Article I, section 8 of the Texas Constitution, but its argument focuses solely on the First Amendment of the United States Constitution. Consequently, we do not consider the extent to which Article I, section 8 provides an independent basis for the protection of Adust's rights. See Tilton v. Moye, 869 S.W.2d 955, 958 n.2 (Tex. 1994). Points of error not briefed are waived. Paramount Nat'l. Life Ins. Co. v. Williams, 772 S.W.2d 255, 263 (Tex. App.--Houston [14th Dist.] 1989, writ denied); Parker v. TXO Prod. Corp., 716 S.W.2d 644, 648 (Tex. App.--Corpus Christi 1986, no writ). 4 The right to speak freely is meaningless without the corresponding right of a listener to hear what is spoken. The listener's right to receive information is also protected by the First Amendment. See Kleindienst v. Mandel, 408 U.S. 753, 762, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972); Red Lion Broad. v. F.C.C., 395 U.S. 367, 390, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969); Thomas v. Collins, 323 U.S. 516, 534, 89 L. Ed. 430, 65 S. Ct. 315 (1945). Page 6 of 10 996 S.W.2d 245, *252; 1999 Tex. App. LEXIS 3790, **12

HN12 The government may impose reasonable L.P., 960 S.W.2d 301, 308 (Tex. App.--Corpus Christi restrictions of the time, place, or manner of protected 1997, no writ). speech, provided restrictions "are [1] justified without reference to the content of the regulated speech, that III. PARTICULAR PROVISIONS they are [2] narrowly tailored to serve a significant governmental interest, and that they [3] leave open A. Visibility and lighting ample alternative channels for communication of the Adust complains about particular requirements of the information." injunction that apply to visibility of activities on the premises and the adequacy of lighting to assure visibility. Id. at 791 (quoting Clark v. Community for Creative Those provisions are the following: Non-Violence, 468 U.S. 288, 293, [**13] 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984)). Because the injunction 1. Any employee or agent of the Defendant operating or places restrictions on appellant's ability to display managing [**15] the business shall have a clear view at presumptively protected materials to its customers, we all times of all events occurring within the premises. review the provisions of the injunction under that analysis. 2. The theater shall have adequate lighting at all times that said business is open to the public. HN13 Where the acts of the parties are divisible regarding lawful and unlawful conduct, an injunction 3. The business shall have adequate running lights on may not be framed so broadly so as to prohibit the the floor of the theater common to commercial theaters. enjoyment of lawful rights. Kulkana v. Braeburn Valley W. Civic Ass'n, 880 S.W.2d 277, 278 (Tex. [*253] 4. The business shall have a lighting system of App.--Houston [14th Dist.] 1994, no writ). Since appropriate degree to allow a sufficient measure of appellant presumably has the guaranteed constitutional visibility so that, if sexual activity occurs or is about to right to exhibit these materials to adult patrons, the occur within the premises, whether such activity is by a injunction should not prohibit or unduly restrict person alone or with another, such conduct would be appellant's free enjoyment of that right. obvious and visible to any person managing the business. In addition to the government's interest in sanitation, the government has a significant interest in preventing the The purpose of the injunction is to prevent the unsanitary spread of sexually-transmitted diseases. HN14 A city conditions that have been repeatedly found on the has a substantial interest in regulating sexually-oriented premises. Those conditions are the result of sexual businesses. City of Renton v. Playtime Theatres, Inc., activities throughout the business. By preventing sexual 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). The contacts from occurring, it is hoped the areas will be State has a significant interest in preventing the spread kept sanitary. This paragraph, requiring all areas to be of sexually transmitted disease through sexual activity visible to management, is to prevent sexual activity on appellant's [**14] premises. See John Doe v. City of from occurring. Adust argues that sexual activity taking Minneapolis, 898 F.2d 612, 617 (8th Cir. 1990) (holding place behind the closed doors of a room, however that the ordinance at issue in that case advanced the small, is not illegal. Although that may be correct, such significant governmental interest in combating the is not speech protected [**16] by the First Amendment. spread of the AIDS virus). Adust has a right to exhibit films and sexually oriented material under the Constitution, but such right is HN15 The standard of review when a trial court grants unrelated to another person's right, if any, to engage in or denies a permanent injunction is limited to whether sexual conduct. the trial court clearly abused its discretion. Morris v. Collins, 881 S.W.2d 138, 139-40 (Tex. App.--Houston HN16 Sexual activity in public places is prohibited by [1st Dist.] 1994, writ denied). We consider whether the the Texas Penal Code. See TEX. PENAL CODE ANN. trial court could reasonably have reached only one §§ 21.07, 21.08 (Vernon 1994). Peep show booths decision, and whether its decision was so arbitrary and have been held to be public places. Liebman v. State, unreasonable as to amount to a clear and prejudicial 652 S.W.2d 942, 944-45 (Tex. Crim. App. 1983). error of law. See Walker v. Packer, 827 S.W.2d 833, 840 Theaters and retail shops open to the public are public (Tex. 1992); AIG Risk Mgmt., Inc. v. Motel 6 Operating places. Page 7 of 10 996 S.W.2d 245, *253; 1999 Tex. App. LEXIS 3790, **16

The United States Supreme Court has concluded HN17 Adust argues that such warnings are bound to have a patrons of adult video theaters have no right to chilling effect on the [*254] store's patrons, particularly anonymity in viewing films. Paris Adult Theatre v. Slaton, the unsophisticated, and that the warnings do not 413 U.S. 49, 65, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973). promote sanitary conditions. The purpose of the In cases dealing with substantially similar issues, similar injunction is to prohibit the unsanitary conditions that provisions have withstood challenge. See Bamon v. resulted from sexual conduct on the Adust premises. City of Dayton, 923 F.2d 470, 473 (6th Cir. 1991); With a view towards eliminating the occasions for sexual FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. conduct, the warning advises the public that such 1978). This requirement does not affect Adust's ability activities are prohibited. These notices do not affect to sell or lease its films nor its patrons' right to view either the ability of Adust to sell or rent its materials or its them. There is nothing improper in those portions of the patrons to purchase them. We find the paragraphs are injunction. reasonably designed to further the government's legitimate health interests. B. Mandatory Warnings C. THE IDENTIFICATION ORDER The next three paragraphs [**17] deal with mandatory warnings to Adust's patrons: The next paragraph provides:

5. The management, including any operators and 7. The management, including the operators and all employees of the Defendant, shall be under a continuing employees of the Defendant, shall give to each person obligation and duty to give verbal notice to any person wanting to enter the theater or any peep show booth a who enters the premises that any sexual activity, written notice that no sexual activity by any person, whether by that person alone or with another, is whether alone or with another, is permitted, allowed or absolutely prohibited. tolerated. 6. The management, including any operators and ... employees of the Defendant, shall post and permanently maintain notice in the following locations: on the exterior ENTRY RECEIPT of the entrance door, at the place where payment is made, at the entrance area to the theater, at the entrance [**19]I have received written notice of the above to the peep show booth, on the interior wall of each Warning. I understand the warning. peep show booth, on each interior wall of the theater, on each interior wall of the business, on the entrance door The entry receipt requires the potential patron to sign to each restroom premises [sic], and on each interior the notice, print his name, and divulge his address, wall of each restroom; which shall state that no sexual phone and driver's license number. Adust is to maintain activity by any person, whether alone or with another, is the originals on file for no-notice inspection by permitted, allowed or tolerated. The notice shall be "appropriate law enforcement authorities." No person is sufficient if it substantially states the following: to be allowed into the theater or peep show booth who refuses to sign the entry receipt, and all who enter "WARNING! without signing are to be advised they are committing a No Sexual Activity By Any Person, trespass. Adust's management is ordered to immediately call law enforcement authorities to enforce Whether Alone Or With Any Other Person, the warning and receipt requirements.

Is Permitted, Allowed, or Tolerated In or About the While this order does not directly prohibit the exercise of Premises. Adust's or its patrons' freedom of speech, HN18 the First Amendment also protects against government [**18] Violators Will Be Removed From the Premises, inhibition as well as prohibition. Lamont v. Postmaster Will Be Denied Future Entry Onto the Premises And Gen., 381 U.S. 301, 309, 14 L. Ed. 2d 398, 85 S. Ct. 1493 (1965) (Brennan, J., concurring). HN19 An Will Be Referred To The Police For Criminal identification requirement exerts an inhibitory effect, Prosecution." Talley v. California, 362 U.S. 60, 64-65, 4 L. Ed. 2d 559, Page 8 of 10 996 S.W.2d 245, *254; 1999 Tex. App. LEXIS 3790, **19

80 S. Ct. 536 (1960), and therefore raises First activity, and shall immediately call law enforcement Amendment issues comparable to those raised by direct authorities to report the commission of such activity. government imposed [**20] prohibitions. Fabulous Assocs. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d Adust complains this language requires it to report 780, 785 (3d Cir. 1990). suspected sexual activity. We agree the paragraph as written is confusing and, to the extent that it imposes a The State cites Pollard v. Cockrell, 578 F.2d 1002, requirement to report suspicions, overly broad. We find 1015-16 (5th Cir. 1978), for authority that obtaining and the [**22] requirement to report violations of the keeping such permits is rationally related to protecting injunction's prohibitions appropriate, however, and public health, in that, if contaminants are found, it may be necessary to locate and notify patrons of possible cannot conclude this paragraph is not reasonably exposure to disease. But Pollard involved a massage designed to further the County's interests. parlor and the requirement that a detailed "appointment book" be maintained. The aims of such a list is to keep Appellant's point is sustained. The first portion of the minors from using such establishments and in paragraph is changed to read, "The management, preventing patrons from soliciting proscribed sexual including any operators and employees of the contacts. Id. at 1016. Defendant, upon detecting any sexual activity within the premises by any person, . . . ." The main purpose of such a requirement for Adust is to inhibit potential customers from viewing the E. Random Inspections sexually-oriented films by their loss of anonymity. The requirement is not a reasonable restriction on Adust's The order requires Adust to "consent to random business and it has no rational relationship to the inspection by the appropriate law enforcement prevention of disease, sexually transmitted or otherwise. authorities of the State." Adust challenges this provision The County has not borne its heavy burden of under the First and Fourth Amendments, to the extent demonstrating that the compelling state interest could that it authorizes warrantless searches. not be served by restrictions that are less intrusive on protected forms of expression. See Sable HN20 A warrant is generally required for authorities to Communications [**21] v. F.C.C., 492 U.S. 115, 126, search portions of a commercial enterprise that are not 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989). open to the public. See v. City of Seattle, 387 U.S. 541, 543, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967). HN21 A Adust's point is sustained and we strike the requirement warrantless search of commercial premises may be that patrons complete an entry receipt, giving their reasonable when the business is "closely regulated." In names, addresses, and other personal information, as such a case the privacy interests of the owner are a condition of entry to the theater and peep show weakened and the government interest in regulating booths. are higher. New York v. Burger, 482 U.S. 691, 700, 96 L. [*255] Because we have stricken the requirement that Ed. 2d 601, [**23] 107 S. Ct. 2636 (1987). HN22 The Adust collect patrons' identification information, we need expectation of privacy that the owner of commercial not consider Adust's complaint that the provision for property enjoys may, in certain circumstances, be warrantless inspection of these receipts is improper. adequately protected by regulatory schemes authorizing warrantless inspections. United States v. Biswell, 406 D. Reporting Requirement U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972).

Adust next complains of the injunction's requirement The Supreme Court has recognized this exception in that: four industries. See Burger, 482 U.S. at 703-04 (automobile junkyards); Donovan v. Dewey, 452 U.S. 9. The management, including any operators and 594, 598-99, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981) employees of the Defendant, upon suspecting or seeing (coal mining); Biswell, 406 U.S. at 316 (firearm and any sexual activity within the premises by any person, ammunition sales); Colonnade Catering Corp. v. United whether alone or with another, shall immediately cause States, 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774 the person or persons to stop, cease and desist such (1970) (liquor industry). Lower federal courts and some Page 9 of 10 996 S.W.2d 245, *255; 1999 Tex. App. LEXIS 3790, **23

state courts have extended the exception to other Burger, 482 U.S. at 703. industries. 5 This provision of the injunction requires appellant to [**24] [*256] In Marshall v. Barlow's, Inc., 436 U.S. 307, "consent" to random inspections. The vagueness of the 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), the Court struck order raises certain problems. The order does not limit down the administrative search provision of section the "consent" to inspections to be conducted at any 8(a) of the Occupational Safety and Health Act of 1970 time, the scope of the inspection, the area to be because it failed to tailor the scope and frequency of the inspected, whether the inspection is limited to the inspections to the particular health and safety concerns business premises of appellant or could extend to other posed. Id. at 323. Also the Act did not provide any places, or whether appellant's business records are to standards to guide inspectors in the exercise of their be included. The absence of conditions on the authority to search. Id. "HN23 Where Congress has inspections violates the constitutional requirements for authorized inspection but made no rules governing the such administrative searches. The injunction must have procedures that inspectors must follow, the Fourth "a properly defined scope, and it must limit the discretion Amendment and its various restrictive rules apply." of the inspecting officers." Id. We conclude the provision Colonnade, 397 U.S. at 77. In such cases, a warrant requiring appellant to consent to inspections by law may be necessary to protect the owner from the enforcement officers violates its Fourth Amendment "unbridled discretion [of] executive and administrative rights. That provision is stricken from the injunction. officers," Barlow's, 436 U.S. at 323, by assuring him Adust's point of error is sustained. that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect We sustain Adust's third point of error, MODIFY the to a particular establishment. Camara v. Municipal Ct. injunction and, as modified, AFFIRM. of San Francisco, 387 U.S. 523, 538, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). J. BONNER DORSEY,

"HN24 The regulatory statute must perform the two Justice basic functions of a warrant: it must advise the owner of the commercial [**25] premises that the search is being Opinion [**26] delivered and filed this 20th day of May, made pursuant to law and has a properly defined scope, 1999. and it must limit the discretion of the inspecting officers."

5 Warrantless administrative searches have been upheld in the following contexts: commercial fishing, United States v. Raub, 637 F.2d 1205 (9th Cir. 1980); State v. Mach, 23 Wash. App. 113, 594 P.2d 1361 (1979); shipping, United States v. Espinosa-Cerpa, 630 F.2d 328, 333-34 (5th Cir. 1980); pleasure boating, United States v. Whitmire, 595 F.2d 1303, 1312-13 & n.22 (5th Cir. 1979), cert. denied, 448 U.S. 906, 65 L. Ed. 2d 1136, 100 S. Ct. 3048 (1980); but cf. United States v. Piner, 608 F.2d 358 (9th Cir. 1979) (Coast Guard's warrantless safety inspections of small pleasure vessels must be limited to daylight hours unless there is articulable cause for nighttime boarding); water pollution-related activities, In re State Dep't of Envirl. Protec., 177 N.J. Super. 304, 426 A.2d 534 (N.J. Super., App. Div. 1981); food and drug dealers, United States v. Schiffman, 572 F.2d 1137 (5th Cir. 1978); mining and mineral extraction, Marshall v. Texoline Co., 612 F.2d 935 (5th Cir. 1980); licensed automobile dismantlers, used parts dealers, and second-hand goods dealers, People v. Woolsey, 90 Cal. App. 3d 994, 153 Cal. Rptr. 746, 749-51 (4th Dist. 1979); State v. Barnett, 389 So. 2d 352 (La. 1980); People v. Tinneny, 99 Misc. 2d 962, 417 N.Y.S.2d 840, 845-46 (1979); taverns, State v. Williams, 84 N.J. 217, 417 A.2d 1046, 1048-50 (1980) (dictum); and massage parlors, Pollard v. Cockrell, 578 F.2d 1002, 1014 (5th Cir. 1978). Courts have struck down warrantless administrative inspections in the following contexts: trucking, United States v. Shaefer, 637 F.2d 200 (3d Cir. 1980); residential real estate, Hometown Co-Op. Apts. v. City of Hometown, 495 F. Supp. 55 (N.D. Ill. 1980) (point-of-sale inspection); adult book stores, State v. Huddleston, 412 A.2d 1148, 1156-57 (Del. Super. Ct. 1980); and physicians' offices or clinics, Margaret S. v. Edwards, 488 F. Supp. 181, 214-17 (E.D. La. 1980); Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1045-50 (D. Hawaii 1979). Page 10 of 10 Page 1

Caution As of: Mar 30, 2015

Everett Cockrell, Appellant v. Jose Estevez, Appellee

No. 04-87-00206-CV

COURT OF APPEALS OF TEXAS, Fourth District, San Antonio

737 S.W.2d 138; 1987 Tex. App. LEXIS 8440

September 16, 1987, Decided September 16, 1987, Filed

PRIOR HISTORY: [**1] Appeal from the the petition attached. The defendant failed to answer or 131st District Court of Bexar County, Trial Court No. appear, and the default judgment was entered. 86-CI-18182, Honorable Raul Rivera, Judge Presiding. The judgment referred to the Earnest Money Con- tract between the [**2] parties as "dated September 18, 1986," when, in fact, the escrow agent dated the instru- COUNSEL: Lance E. Houghtling, Attorney for Appel- ment on September 16, 1986, and the contract was exe- lant. cuted on October 15, 1986. The pleadings of the plaintiff set out the date of execution as October 15, 1985. The Steven M. Gross, Attorney for Appellee. default judgment also referred to and incorporated by reference the original Earnest Money Contract which has JUDGES: Rudy Esquivel, Associate Justice, Alfonso the agent's date as well as the correct date of execution. Chapa, Associate Justice, Shirley W. Butts, Associate Justice. Almost four months after the judgment was origi- nally signed, an order nunc pro tunc was granted on OPINION BY: BUTTS plaintiff's motion to correct the spelling of the defend- ant's name. OPINION Plaintiff argues in his first point of error that the de- [*139] This is an appeal by writ of error from a fault judgment is invalid because the petition, citation default judgment in favor of plaintiff, Juan Estevez. The and judgment misspelled defendant's name "Everett judgment granted specific performance on a contract to Cockrall," when the correct spelling is "Everett purchase real estate and awarded attorney's fees. In two Cockrell." The second point is that error resulted because points of error plaintiff challenges service of process and of non-conformity between the pleadings and the judg- failure of the default judgment to conform to the plead- ment and that the pleadings describe an earnest money ings. contract dated October 15, 1985, while the judgment describes an earnest money contract dated September 18, Plaintiff's petition misstated the name "Cockrell" as 1986. "Cockrall." The name "Cockrell" was properly spelled in the Earnest Money Contract being sued upon which was A petition should serve its designed purpose "to de- attached to the petition and incorporated in it by refer- fine the issues at trial." Murray v. O & A Express, Inc. ence. The citation contains the same misspelling of de- [**3] , 630 S.W.2d 633, 636 (Tex. 1982). In this case fendant's name but was personally served on him with the earnest money contract is incorporated and attached Page 2 737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, **

to the petition; it therefore accurately identifies the par- citation named the son but the father was served. Zim- ties and provides the defendant "information sufficient to merman v. First National Bank of Bowie, 235 S.W.2d enable him to prepare a defense." Roark v. Allen, 633 720 (Tex. Civ. App. Fort Worth 1950, writ ref'd n.r.e.) S.W.2d 804, 810 (Tex. 1982). In addition, we will apply concerned a writ of garnishment issued under a different the rule of idem sonans 1 because the two spellings name from the judgment upon which it was based. [*140] of the name "Cockrell" appear to be nearly in- Again, substantially different situations from that of the distinguishable by their sounds when pronounced. present case. The purpose of citation is to give the court proper 1 The rule of idem sonans is that absolute ac- jurisdiction of the parties and to provide notice to the curacy in spelling a name is not required in a le- defendant that he has been sued and by whom and for gal document or proceedings, either civil or what so that due process will be served and he will have criminal; that if a name, as spelled in the docu- an opportunity to appear and defend the action. ment, though different from the correct spelling Sgitcovich v. Sgitcovich [**6] , 150 Tex. 398, 241 thereof, conveys to the ear, when pronounced S.W.2d 142, 146 (1951), cert. denied, 342 U.S. 903, 72 S. according to the commonly accepted method, a Ct. 291, 96 L. Ed. 676 (1952), Stephenson v. Corporate sound practically identical to the correct name as Services, Inc., 650 S.W.2d 181, 184 (Tex. App. -- Tyler commonly pronounced the name thus given is a 1983, writ ref'd n.r.e.), Bozeman v. Arlington Heights sufficient identification of the individual referred Sanitarium, 134 S.W.2d 350, 351-52 (Tex. Civ. App. -- to, and no advantage can be taken of the clerical Dallas 1939, writ ref'd). We hold that the misspelling of error. Dingler v. State, 705 S.W.2d 144, 145 the defendant's name in the citation does not invalidate (Tex. Crim. App. 1984). service of process. If defendant's misspelled name in the [**4] The Texas Supreme Court has approved in citation or return does not invalidate service of process, practice, the application of the rule of idem sonans in neither does such error require reversal of a default civil cases. Adams v. Grogan-Cochran Lumber Co., judgment. Salazar v. Tower, 683 S.W.2d 797, 799 (Tex. 181 S.W.2d 582, 588-89 (Tex. Civ. App. -- Amarillo App. -- Corpus Christi 1984, no writ); Popkowsi v. 1944), aff'd, 186 S.W.2d 677, 143 Tex. 490 (1945). When Gramza, 671 S.W.2d 915, 917-18 (Tex. App. -- Houston an intended defendant is sued under an incorrect name, [1st Dist.] 1984, no writ). jurisdiction is proper after service on the defendant under As discussed above, there is no issue raised of lack the misnomer, but it must be clear that no one was mis- of service of citation on the intended defendant "Everett led. Orange Grove Independent School District v. Rive- Cockrell," nor does defendant claim he was misled by ra, 679 S.W.2d 482, 483 (Tex. 1984), Adams v. Consoli- the misspelling of his name in this case. Since defendant dated Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841 was the proper one to be served with citation and was not (1939). misled by the error in the spelling of his name, the record A misnomer of a defendant does not render a judg- does not reflect invalid service of process. Consolidated ment based on personal service, even one by default, Underwriters, [**7] supra, 124 S.W.2d at 841. Appel- void, provided the intention to sue the defendant actually lant's first point of error is overruled. served with citation is so evident from the pleadings and We find that the judgment in this case properly con- process that the defendant could not have been misled. R. forms to the pleadings, from which the court can deter- McDONALD, TEX. CIV. PRACTICE § 6.04.1 (1982). mine the elements of plaintiff's cause of action and iden- It is significant that the defendant does not raise an tify the relief sought. Mere formalities, minor defects, or issue of mistake in identity or lack of service or of im- technical insufficiencies will not invalidate a default proper service under the rules but raises only the claim judgment [*141] where the petition states a cause of that the improper spelling of his name voids the citation. action and gives "fair notice" to the opposing party of the The fact that defendant was personally [**5] served relief sought. Stoner v. Thompson, 578 S.W.2d 679, with citation distinguishes the case at hand from the cas- 682-83 (Tex. 1979). In a similar case it was held that es relied upon by him. Two of those cases dealt not with discrepancies in dates were clerical errors and could not personal citation but with citation by publication and have surprised the defendant or prejudiced his rights. citation by mail. Mega v. Anglo Iron & Metal Co. of Pace Sports, Inc. v. Davis Brothers Publishing Co., 508 Harlingen, 601 S.W.2d 501 (Tex. Civ. App. -- Corpus S.W.2d 493, 494 (Tex. Civ. App. -- Waco 1974), aff'd, Christi 1980, no writ); Fleming v. Hernden, 564 S.W.2d 514 S.W.2d 247 (Tex. 1974). 157 (Tex. Civ. App. -- El Paso 1978, writ ref'd n.r.e.). In The earnest money contract for which specific per- Nail v. Gene Biddle Feed Co., Inc., 347 S.W.2d 830 formance was sought in this case was attached to plain- (Tex. Civ. App. -- Beaumont 1961, no writ), two differ- tiff's petition and was incorporated in the petition and ent individuals were involved, a father and a son, the Page 3 737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, **

also in the judgment by reference. When an inspection of son, 471 S.W.2d 28 (Tex. 1971), Williams v. Pitts, 251 an exhibit referred to in the pleadings shows facts con- S.W.2d 148, 151 Tex. 408 (1952). The court did enter an tradictory to the pleadings, the exhibit, not the allegation order nunc pro tunc correcting the spelling of the de- of the pleadings, [**8] must control. Paul v. Houston fendant's name almost four months after the original Oil Co. of Texas, 211 S.W.2d 345, 353-54 (Tex. Civ. judgment. This was within the trial court's authority. App. -- Waco 1948, writ ref'd n.r.e.). The agent's date on Since both the petition and the judgment reference the the earnest money contract, appears to be September 16, earnest money contract, and since the petition seeks and 1986. It is obviously this date to which the judgment the judgment orders specific performance on the contract refers when describing the contract as dated on Septem- and attorney's fees, there is no variance between the peti- ber 18, 1986. The same reasoning applies as to the dis- tion and the judgment. The second point of error is over- crepancy in the date of execution. Although the trial ruled. court did not act on the matter of the dates, the error is The judgment in the trial court is [**9] affirmed. merely clerical and is subject to correction by the court at any time. See Universal Underwriters Ins. Co. v. Fergu- Page 1 2001 Tex. App. LEXIS 6913, *

1 of 1 DOCUMENT

Caution As of: Mar 30, 2015

COLOR SMART, INC. and Rodrigo Garcia, Individually, Appellants v. Larry LITTLE, Jr., Appellee

No. 04-00-00294-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

2001 Tex. App. LEXIS 6913

October 17, 2001, Delivered October 17, 2001, Filed

NOTICE: [*1] PURSUANT TO THE TEXAS process servers was on file with the clerks of the district RULES OF APPELLATE PROCEDURE, UN- and county courts, the appellate court took judicial notice PUBLISHED OPINIONS SHALL NOT BE CITED AS of it and considered it to be part of the papers on file in AUTHORITY BY COUNSEL OR BY A COURT. the appeal. The returns were properly acknowledged before a notary public, thus they were not defective. The PRIOR HISTORY: From County Court at Law No. lessee's name was not actually misspelled, but the last 3, Bexar County, Texas. Trial Court No. 254616. Hon- letter was cut off. It was inconsequential. orable Irene Rios, Judge Presiding. OUTCOME: The default judgment was affirmed. DISPOSITION: Affirmed. LexisNexis(R) Headnotes CASE SUMMARY:

PROCEDURAL POSTURE: Appellants, a lessee and Civil Procedure > Pretrial Judgments > Default > De- his company, filed a restricted appeal from a default fault Judgments judgment for $ 58,390 plus $ 4,000 attorney's fees ren- Civil Procedure > Appeals > Records on Appeal dered against them, arising out of a suit for breach of a [HN1] A restricted appeal is a direct attack on a judg- lease agreement brought by appellee, lessor, in County ment. A direct attack on a judgment must: (1) be brought Court at Law No. 3, Bexar County, Texas. within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in OVERVIEW: The lessee contended the trial court erred the actual trial; and (4) the error complained of must be in rendering a default judgment because (1) citation was apparent from the face of the record. The face of the rec- not served by a person authorized under Tex. R. Civ. P. ord consists of all the papers on file in the appeal, in- 103; (2) the return of citation was defective because the cluding the statement of facts. For a default judgment to verifications were defective; and (3) the return of citation withstand a direct attack, strict compliance with the Tex- was defective because his last name was misspelled on it. as Rules of Civil Procedure regarding the issuance of The parties did not dispute lessee's entitlement to bring a citation, the manner and mode of service, and the return restricted appeal but disagreed regarding whether he was of process must be shown on the face of the record. No properly served. Because the list of authorized private presumptions in favor of valid issuance, service, and Page 2 2001 Tex. App. LEXIS 6913, *

return are made, and the record must affirmatively show record. Bautista, 9 S.W.3d at 251. No presumptions in strict compliance with the rules. favor of valid issuance, service, and return are made, and the record must affirmatively show strict compliance with the rules. Id. Civil Procedure > Pleading & Practice > Service of In three points of error, Garcia contends the trial Process > General Overview court erred in rendering a default judgment because (1) [HN2] Tex. R. Civ. P. 107 provides that the return of citation was not served by a person authorized under citation by an authorized person "shall be verified" but Rule 103 of the Rules of Civil Procedure; (2) the return does not specify the manner of verification. "Verified" of citation was defective because the verifications were for purposes of rule 107 is defined as acknowledgment defective; and (3) the return of citation on Rodrigo Gar- of the instrument before a notary public. cia was defective because it shows citation was served on Rodrigo "Garci." The parties do not dispute Garcia's en- titlement to bring a restricted appeal 1 but disagree re- Civil Procedure > Pleading & Practice > Service of garding whether he was properly served. Process > General Overview [HN3] Strict compliance does not require "obeisance to 1 It is evident from the record that Garcia is a the minutest detail." Spelling errors too minor to raise party to the appeal, did not appear or file any mo- any doubt that the correct person was served are insuffi- tions, and brought the restricted appeal within six cient to invalidate service. months after the judgment was signed. COUNSEL: APPELLANT ATTORNEY: Kelly K. [*3] In point of error one, Garcia contends the McKinnis, Attorney At Law, McAllen, TX. Ruben person who served him was not authorized by law. Ser- Ramirez, Law Office Of Ruben Ramirez, McAllen, TX. vice is permitted by any person "authorized by law or by written order of the court who is not less than eighteen APPELLEE ATTORNEY: J. Philip Collier, Law Offices years of age." TEX. R. CIV. P. 103(2). He contends there Of J. Philip Collier, San Antonio, TX. is error on the face of the record because the record does not contain a written order authorizing Beatrice Cantu to JUDGES: Opinion by: Catherine Stone, Justice. Sitting: serve process. Little refers this court to the approved list Alma L. Lopez, Justice, Catherine Stone, Justice, Karen of process servers on file with the Bexar County District Angelini, Justice. Clerk and Bexar County Clerk; Beatrice Cantu's name appears on this list. Little contends there is no authority OPINION BY: Catherine Stone requiring that the record in each case must independently establish the authority of the private process server, and OPINION that Rule 103 does not require it. We agree, and decline to impose such a condition. Because the list of author- This is a restricted appeal from a default judgment ized private process servers is on file with the clerks of for $ 58,390.61 plus $ 4,000 attorney's fees rendered the district and county courts, we take judicial notice of it against appellants Color Smart, Inc. and Rodrigo Garcia and consider it to be part of the papers "on file in the (collectively, Garcia) arising out of a suit for breach of a appeal." See Norman Communications, 955 S.W.2d at lease agreement brought by appellee Larry Little. 270. [HN1] A restricted appeal is a direct attack on a We overrule point of error one. judgment. Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex. App.--San Antonio 1999, no pet.). A direct attack on a In point of error two, Garcia challenges the manner judgment must: (1) be brought within six months after in which the returns [*4] of citation are verified, argu- the trial court signs the judgment; (2) by a party to the ing they are defective because there is no basis to show suit; (3) who did not participate in the actual trial; and (4) how the person verifying the return has personal the error complained of must be apparent from the face knowledge of its facts, nor is there any mention of the of the record. Norman Communications v. Texas East- name of the person who is verifying the return. [HN2] man Co., 955 S.W.2d 269, 270 (Tex. 1997). [*2] The Rule 107 provides that the return of citation by an au- face of the record consists of all the papers on file in the thorized person "shall be verified" but does not specify appeal, including the statement of facts. Id. For a default the manner of verification. See TEX. R. CIV. P. 107. judgment to withstand a direct attack, strict compliance "Verified" for purposes of Rule 107 is defined as "ac- with the Texas Rules of Civil Procedure regarding the knowledgment of the instrument before a notary public." issuance of citation, the manner and mode of service, and See Bautista, 9 S.W.3d at 251. The returns of service the return of process must be shown on the face of the Page 3 2001 Tex. App. LEXIS 6913, *

here are properly acknowledged before a notary public, the final "a" in Garcia was cut off. Even if the original thus they are not defective in this regard. return actually shows "Garci" we are not persuaded this is error. Rodrigo Garcia's name is correctly spelled in the We overrule point of error two. petition and in the notice of citation; it is only mis- In point of error three, Garcia contends that service spelled, if at all, in the return. [HN3] Strict compliance was ineffective because one service was directed to "Ro- does not require "obeisance to the minutest detail." Her- drigo Garcia" but was served on "Color Smart, Inc. to bert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, registered agent Rodrigo Garcia" and the other was di- 871 (Tex. App.--Houston [1st Dist.] 1995, no writ). rected to "Rodrigo Garcia" but served on "Rodrigo Gar- Spelling errors too minor to raise any doubt that the cor- ci." The authority cited by Garcia is distinguishable be- rect person was served are insufficient to invalidate ser- cause, unlike the case before us, the defendants were not vice. Ortiz v. Avante Villa at Corpus Christi, Inc., 926 personally served with citation. The petition served with S.W.2d 608, 613 (Tex. App.--Corpus Christi 1996, writ the citation shows Color Smart, Inc. and [*5] Rodrigo denied); McDonough v. Williamson, 742 S.W.2d 737, Garcia as the defendants. We see no error in directing 740 (Tex. App.--Houston [14th Dist.] 1987, no writ). service to Color Smart's registered agent, Rodrigo Gar- We overrule point of error [*6] three. cia, as was done here. We also see no error in the return showing personal service on Rodrigo "Garci." The mar- We affirm the default judgment. gins of original papers are frequently cut off when copies Catherine Stone, Justice are made; that appears to be what happened here--i.e., | | Neutral As of: April 7, 2015 5:32 PM EDT

Cont'l Cas. Co. v. Guzman Court of Appeals of Texas, Fourth District, San Antonio January 21, 2009, Delivered; January 21, 2009, Filed No. 04-07-00589-CV

Reporter 2009 Tex. App. LEXIS 338; 2009 WL 136926

CONTINENTAL CASUALTY COMPANY, Appellant v. elements that had to be met for a restricted appeal Rudolph GUZMAN, Appellee under Tex. R. App. P. 30. There was no error on the face of the record because service of an amended petition Subsequent History: Petition for review denied by was not required since no new causes of action were Cont'l Cas. Co. v. Guzman, 2009 Tex. LEXIS 606 (Tex., pled. The claimant did not have to show the element of Aug. 21, 2009) due diligence in relation to his bill of review because he was contending that substituted service was invalid. Prior History: [*1] From the 45th Judicial District Court, There was sufficient proof in the record that the carrier Bexar County, Texas. Trial Court No. 2006-CI-07475. was served and that the trial court had jurisdiction. Also, Honorable John D. Gabriel, Jr., Judge Presiding. the claimant was required to file his bill of review petition in the same court where the default judgment was Disposition: AFFIRMED. taken. The trial court did not err in failing to hear evidence before granting a default in favor of the Core Terms claimant, and he was not required to comply with Tex. Lab. Code Ann. §§ 410.258, 410.253(b) (2006). Finally, the return of citation did not have to be verified. default judgment, bill of review, amended petition, workers' compensation, original petition, face of the Outcome record, registered agent, requirements, damages, pet, trial court, jurisdictional, allegations, proceedings, The decision was affirmed. diligence, contends, notice LexisNexis® Headnotes Case Summary Civil Procedure > Appeals > Notice of Appeal Procedural Posture Civil Procedure > Appeals > Reviewability of Lower Court Appellant insurance carrier filed a restricted appeal to Decisions > Timing of Appeals challenge a decision from the 45th Judicial District HN1 In order to prevail in a restricted appeal, a party Court, Bexar County, Texas, which granted a bill of must establish the following: (1) it filed notice of the review to appellee benefit claimant after a default restricted appeal within six months after the final judgment was entered in favor of the carrier in a workers' judgment was signed; (2) it was a party to the underlying compensation case. litigation; (3) it did not participate in the underlying proceedings and did not timely file any post-judgment Overview motions; and (4) error is apparent on the face of the A no-answer default judgment reversed and set aside a record. Tex. R. App. P. 26.1(c), 30. decision in a workers' compensation case. The claimant then filed a petition for a bill of review, but no answer Civil Procedure > ... > Pleadings > Amendment of was filed. A default judgment was entered, and the Pleadings > General Overview carrier then filed a restricted appeal. In affirming, the Civil Procedure > ... > Pleadings > Service of Process > appellate court determined that there were four General Overview 2009 Tex. App. LEXIS 338, *1

Civil Procedure > ... > Default & Default Judgments > proof of proper service. Tex. R. Civ. P. 107 prohibits the Default Judgments > Entry of Default Judgments rendition of a default judgment unless proof of service and return have been on file with clerk for ten days. HN2 In the context of a default judgment, Caprock follows the general rule that only an amended petition Further, the majority of courts of appeals have held that that seeks a more onerous judgment requires new a recital in a petition that names a person or entity as the service. registered agent for service on the defendant is prima facie evidence of that fact. Civil Procedure > Judgments > Relief From Judgments > Bills of Review Civil Procedure > Preliminary Considerations > Venue > Special Venue HN3 In order to prevail on a bill of review, a petitioner Workers' Compensation & SSDI > Administrative must prove (1) a meritorious defense (2) that he was Proceedings > Judicial Review > General Overview prevented from making by fraud, accident, or wrongful act of the opposing party or official mistake (3) without HN6 The statutory venue requirements set forth in the any fault or negligence of his own. However, a defendant Texas Workers' Compensation Act provide that suit for who is not served with process is entitled to a bill of judicial review of a Texas Workers Compensation review without a further showing, because the Commission decision must be filed in the county where Constitution discharges the first element, and lack of the employee resided at the time of injury. Tex. Lab. services establishes the second and third. And, Code Ann. § 410.252(b)(1) (2006). traditionally, a petitioner must also show he exercised due diligence to pursue all adequate legal remedies Civil Procedure > Preliminary Considerations > against a former judgment. But, while diligence is Jurisdiction > General Overview required from properly served parties or those who have appeared, those who have not been served have Civil Procedure > Preliminary Considerations > Venue > no duty to act, diligently or otherwise. General Overview

Civil Procedure > Judgments > Relief From Judgments > Civil Procedure > ... > Pretrial Judgments > Default & Bills of Review Default Judgments > Default Judgments HN7 A bill of review is a direct attack on a previous trial HN4 A default judgment on an unliquidated claim admits court's judgment. And, a direct attack, which is brought all allegations of fact alleged in the petition except the for the purpose of correcting a presumably incorrect amount of damages. former judgment, may only be brought in the court rendering the judgment. This is a jurisdictional Civil Procedure > Preliminary Considerations > requirement, not merely a matter of venue. Jurisdiction > General Overview

Civil Procedure > ... > Service of Process > Proof of Civil Procedure > ... > Default & Default Judgments > Service > General Overview Default Judgments > Entry of Default Judgments Civil Procedure > ... > Pretrial Judgments > Default & HN8 Tex. R. Civ. P. 241 and 243 set forth the evidentiary Default Judgments > Default Judgments requirements for default judgment proceedings. Rule Civil Procedure > Appeals > Record on Appeal 241 provides that when a default judgment is rendered, and the claim is liquidated and proved by an instrument HN5 Jurisdictional facts must affirmatively appear on in writing, the court shall assess damages. There is no the face of the record for a default judgment to withstand requirement under Rule 241 for an evidentiary hearing scrutiny. For jurisdictional facts to affirmatively appear to be held. Rule 243 provides that when a cause of on the face of the record, the record must show the action is unliquidated or not proved by an instrument in following: (1) the pleadings must allege facts that, if writing, the court shall hear evidence as to damages. true, would make the defendant responsible to answer; and (2) there must be proof in the record that the Workers' Compensation & SSDI > Administrative defendant was, in fact, served in the manner required Proceedings > Judicial Review > General Overview by statute. However, when a defendant has not answered, a trial court acquires jurisdiction solely on HN9 See Tex. Lab. Code Ann. § 410.258(a), (f) (2006). Page 2 of 7 2009 Tex. App. LEXIS 338, *1

Workers' Compensation & SSDI > Administrative Opinion by: Karen Angelini Proceedings > Judicial Review > General Overview

HN10 Tex. Lab. Code Ann. § 410.258 states that the Opinion Texas Workers Compensation Commission should receive advance notice of the attack on its decision so MEMORANDUM OPINION that the Commission may have thirty days to intervene in the judicial proceedings. § 410.258(c). AFFIRMED

This is a restricted appeal arising out of a default Workers' Compensation & SSDI > Administrative Proceedings > Judicial Review > General Overview judgment that was entered in a bill of review case. We affirm the trial court's judgment. HN11 The Court of Appeals of Texas, Fourth District, San Antonio, interprets Tex. Lab. Code Ann. § 410.258 FACTUAL AND PROCEDURAL BACKGROUND to mean that only a party who has initiated a proceeding under the Texas Labor Code is subject to its filing Rudolph Guzman filed a workers' compensation claim, requirements. asserting he had sustained an injury in the course of his employment. After holding hearings, the Texas Workers Evidence > Inferences & Presumptions > Presumptions Compensation Commission ("TWCC") determined Guzman had indeed sustained a compensable injury Governments > Legislation > Interpretation for which Continental Casualty Company is liable. HN12 In interpreting a statute, courts must look to its Continental then appealed the TWCC decision to a plain and common meaning and presume that the Bexar County district court. Continental then obtained a legislature intended the plain meaning of its words. no-answer default judgment against Guzman that reversed and set aside the TWCC decision entitling Workers' Compensation & SSDI > Administrative Guzman to workers' compensation benefits. After Proceedings > Judicial Review > General Overview [*2] discovering a default judgment had been taken against him, Guzman filed an "Original Petition for Bill of HN13 See Tex. Lab. Code Ann. § 410.253. Review" in the Bexar County district court seeking to set aside the default judgment against him. Guzman served Workers' Compensation & SSDI > Administrative Continental through the CT Corporation, which Guzman Proceedings > Judicial Review > General Overview alleged in his original petition to be Continental's HN14 Tex. Lab. Code Ann. § 410.253 applies only to a registered agent for service. Continental did not file an party seeking judicial review of a final Texas Workers answer to the suit. Thereafter, Guzman filed a "First Compensation Commission decision. Amended Original Petition for Bill of Review"; however, he did not serve Continental with the amended petition. Governments > Courts > Clerks of Court Guzman then filed a motion for default judgment, which Governments > Local Governments > Employees & was granted by the trial court based upon the amended Officials petition. Continental did not participate in the proceedings, nor were the proceedings recorded by a HN15 District clerks, like sheriffs and constables, are court reporter. Upon discovering that a default judgment considered "officers" -- persons who, by virtue of their had been taken against it, Continental filed this restricted offices, are not required to verify returns. appeal.

Counsel: For APPELLANT: Deanne C. Ayers, Julie B. RESTRICTED APPEAL Tebbets, Ayers & Ayers, Colleyville, TX. A. Standard of Review For APPELLEE: Israel M. Reyna, Texas Riogrande Legal Aid, Inc., Laredo, TX. HN1 In order to prevail in its restricted appeal, Continental must establish the following: (1) it filed Judges: Opinion by: Karen Angelini, Justice. Sitting: notice of the restricted appeal within six months after Karen Angelini, Justice Phylis J. Speedlin, Justice the final judgment was signed; (2) it was a party to the Steven C. Hilbig, Justice. underlying litigation; (3) it did not participate in the Page 3 of 7 2009 Tex. App. LEXIS 338, *2

underlying [*3] proceedings and did not timely file any Guzman was not required to serve the amended petition post-judgment motions; and (4) error is apparent on the on Continental before taking the default judgment. face of the record. TEX. R. APP. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 C. Bill of Review Elements (Tex. 2004). The only issue in this restricted appeal concerns whether error is apparent on the face of the Continental argues that Guzman did not meet all record. elements of a bill of review. More particularly, Continental contends the record does not show Guzman B. Service of Amended Petition exercised due diligence.

Continental contends that the failure of Guzman to HN3 In order to prevail on a bill of review, a petitioner serve it with the amended petition amounts to error must prove (1) a meritorious defense (2) that he was apparent on the face of the record. To support this prevented from making by fraud, accident, or wrongful contention, Continental relies on Caprock Construction act of the opposing party or official mistake (3) without Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203 any fault or negligence of his own. Ross v. Nat'l Ctr. for (Tex. App.--Dallas 1997, no writ). In Caprock, as in this the Employment of the Disabled, 197 S.W.3d 795, 797 case, the plaintiff served the defendant with the original (Tex. 2006). However, "a defendant who is not served petition, but did not serve the defendant with the with process is entitled to a bill of review without a amended petition before taking a default judgment. Id. further showing, because the Constitution discharges at 204. The Dallas Court of Appeals concluded that, in the first element, and lack of services establishes the order for the default judgment to be upheld, the plaintiff second and third." Id. And, traditionally, a petitioner was required to serve the defendant with the amended must also show he exercised due diligence to pursue all petition. Id. at 205. In so holding, the court noted that the adequate legal remedies against a former judgment. amended petition named an additional plaintiff, thus King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 exposing the defendant to additional liability. Id. (Tex. 2003). But, while diligence is required from properly served parties or those [*6] who have Later-decided cases have distinguished Caprock's appeared, those who have not been served have no [*4] holding and refused to set aside default judgments duty to act, diligently or otherwise. Ross, 197 S.W.3d at where the amended petition did not expose the 798. defendant to additional liability. In Rose v. Rose, 117 S.W.3d 84, 91 (Tex. App.--Waco 2003, no pet.), the HN4 A default judgment on an unliquidated claim admits Waco Court of Appeals noted that HN2 Caprock all allegations of fact alleged in the petition except the followed the general rule that only an amended petition amount of damages. Morgan v. Compugraphic Corp., that seeks a more onerous judgment requires new 675 S.W.2d 729, 731 (Tex. 1984). Because Continental service. And, in Palomin v. Zarsky Lumber Co., 26 failed to answer the bill of review petition and Guzman S.W.3d 690, 694 (Tex. App.--Corpus Christi 2000, pet. was awarded a default judgment, all assertions made in denied), the Corpus Christi Court of Appeals similarly the petition are thus admitted as fact. Guzman pled in distinguished Caprock, by explaining that service was the bill of review proceeding that the substituted service held to be improper in Caprock because the amended in the underlying workers' compensation suit filed by pleading exposed the defendant to additional liability. Continental violated his right to constitutional due process because he was not properly served. Guzman In this case, Continental argues that Guzman's also alleged that he was not properly served because amended petition adds allegations of extrinsic fraud, Continental either fraudulently or mistakenly failure to execute official duties, and lack of adequate misinformed the court regarding Guzman's street legal remedy. Although the amended petition did, in addresses for the purpose of serving him in the fact, contain these additional factual allegations, no underlying suit. Thus, the substituted service was new causes of action were pled. Thus, the amended invalid, and Guzman's default judgment on his amended petition did not seek a more onerous judgment than the petition stands without proof of the other elements of original petition. Both the original petition and the the bill of review. See id. And, because the record amended petition requested that the trial court grant the shows that Guzman did not know of the suit or the petition for bill of review, order a new trial, and [*5] set default judgment in time to [*7] file an answer, a motion aside the default judgment against Guzman. Therefore, for new trial, or an appeal, he had no duty to act Page 4 of 7 2009 Tex. App. LEXIS 338, *7

diligently. See Ross, 197 S.W.3d at 798. Further, Guzman pled that an improper default judgment had been taken against him. Guzman also set forth that D. Jurisdiction Continental "may be served with process by serving its registered agent as follows: CT Corporation System, Continental alleges jurisdiction is not shown because 350 North St. Paul Street, Dallas, Texas 75201." Guzman's original petition did not plead that Continental is the workers' compensation carrier for Guzman or that The record contains a notice and citation, with it engaged in business in Texas. Continental also accompanying petition for bill of review, issued by the complains that there was no evidence that C.T. Bexar County District Clerk, that was directed to CT Corporation was the registered agent for service for Corporation System as registered agent of Continental. Continental or that C.T. Corporation forwarded the The record further shows that the notice and citation service to Continental. were served on Continental through its registered agent, CT Corporation System, by certified mail, return receipt HN5 Jurisdictional facts must affirmatively appear on requested. The officer's return indicates the citation was the face of the record for a default judgment to withstand executed. We conclude that Guzman's allegations and scrutiny. McKanna v. Edgar, 388 S.W.2d 927, 929-30 the proof of service contained in the record are sufficient (Tex. 1965). For jurisdictional facts to affirmatively to satisfy the jurisdictional requirements. appear on the face of the record, the record must show the following: (1) the pleadings must allege facts that, if E. Venue true, would make the defendant responsible to answer; and (2) there must be proof in the record that the Continental contends that Guzman was required to defendant was, in fact, served in the manner required comply with HN6 the statutory venue requirements set by statute. Whitney v. L & L Realty Corp., 500 S.W.2d forth in the Texas Workers' Compensation Act, which 94, 95-96 (Tex. 1973). However, when a defendant has provide that suit for judicial review [*10] of a TWCC not answered, a trial court acquires jurisdiction solely decision must be filed in the county where the employee on proof of proper service. [*8] Furst v. Smith, 176 resided at the time of injury. See TEX. LAB. CODE S.W.3d 864, 868 (Tex. App.--Houston [1st Dist.] 2005, ANN. § 410.252(b)(1) (Vernon 2006). And, according to no pet.); see TEX. R. CIV. P. 107 (prohibiting rendition Continental, because the face of the record does not of default judgment unless proof of service and return establish that Guzman resided in Bexar County at the have been on file with clerk for ten days). Further, the time of injury, the bill of review default judgment should majority of courts of appeals have held that a recital in a be reversed. petition that names a person or entity as the registered agent for service on the defendant is prima facie HN7 A bill of review, however, is a direct attack on a evidence of that fact. See, e.g., Conseco Fin. Servicing previous trial court's judgment. Pursley v. Ussery, 937 v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 672 (Tex. S.W.2d 566, 567 (Tex. App.--San Antonio 1996, no App.--Houston [14th Dist.] 2002, no pet.); K-Mart writ). And, a direct attack, which is brought for the Apparel Fashions Corp. v. Ramsey, 695 S.W.2d 243, purpose of correcting a presumably incorrect former 246 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd judgment, may only be brought in the court rendering n.r.e.); Cox Mktg. v. Adams, 688 S.W.2d 215, 218 (Tex. the judgment. Id. at 567-68. This is a jurisdictional App.--El Paso 1985, no writ). requirement, not merely a matter of venue. Id. at 568.

We find sufficient proof in the record that Continental Significantly, we note that the initial suit involving this was served properly and that the court had jurisdiction. workers' compensation claim, which was an appeal of In his original petition for bill of review, Guzman alleged the TWCC decision in Guzman's favor, was filed by that Continental "is a corporation authorized to engage Continental in Bexar County. Because, as a jurisdictional in the business of workers compensation insurance as matter, Guzman was required to file his bill of review of defined by the Texas Workers' Compensation Act and petition in the same court in which the default judgment as allowed by the State Agency." And, Guzman alleged was taken, there is no need for the face of the record to that Continental had filed suit in Bexar County against reflect Guzman's county of residence [*11] at the time of him, [*9] claiming the TWCC's final decision that he, a the injury. workers' compensation claimant, was entitled to workers' compensation benefits should be reversed. F. Sufficiency of the Record Page 5 of 7 2009 Tex. App. LEXIS 338, *11

Continental also argues that the record from the bill of thirty days to intervene in the judicial proceedings. Id. § review proceeding is incomplete and, therefore, 410.258(c); see Casillas v. State Office of Risk Mgmt., amounts to reversible error. Specifically, Continental 146 S.W.3d 735, 738 (Tex. App.--El Paso 2004, no pet.) complains that no reporter's record was taken during [*13] . the proceeding, and the clerk's record contains no affidavits or evidence supporting the granting of HN11 We interpret Section 410.258 to mean that only a Guzman's bill of review. party who has initiated a proceeding under the Labor Code is subject to its filing requirements. See Nat'l Liab. HN8 Texas Rules of Civil Procedure 241 and 243 set & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000) forth the evidentiary requirements for default judgment (holding that HN12 in interpreting a statute, courts must proceedings. See TEX. R. CIV. P. 241, 243. Rule 241 look to its "plain and common meaning" and "presume provides that when a default judgment is rendered, and that the Legislature intended the plain meaning of its the claim is liquidated and proved by an instrument in words."). Here, it was Continental, not Guzman, that writing, the court shall assess damages. TEX. R. CIV. P. "initiated a proceeding" under the statute when it filed its 241. There is no requirement under Rule 241 for an appeal of the TWCC decision in the district court. There evidentiary hearing to be held. Rule 243 provides that is nothing in the statute requiring a party seeking review when a cause of action is unliquidated or not proved by of a default judgment in a bill of review proceeding to an instrument in writing, the court shall hear evidence notify the TWCC of the attack on the trial court's action. as to damages. See TEX. R. CIV. P. 243. Guzman's Guzman's bill of review does not attack the TWCC petition did not seek relief for damages, but rather decision, but rather requests that the default judgment requested that the default judgment rendered against entered in favor of Continental be set aside so the him be set aside and vacated and that a new trial be parties may return to the trial court to resolve granted. The judgment entered in Guzman's favor Continental's initial appeal of the TWCC decision. Thus, granted the [*12] relief requested. Thus, this case is Guzman's bill of review was not an initiation of a akin to a suit for liquidated damages as opposed to proceeding under the Labor Code, and he was not unliquidated damages for which an evidentiary hearing required to comply with Section 410.258. would be required; therefore, the trial court did not err in failing to hear evidence before granting default judgment Similarly, [*14] Continental contends the trial court in Guzman's favor. lacked jurisdiction to enter the default judgment against it in the bill of review proceeding because Guzman G. Compliance with Labor Code failed to comply with Section 410.253 of the Texas Labor Code. That section provides the following: Continental argues that Guzman's failure to produce evidence of compliance with Section 410.258 of the HN13 A party may not seek judicial review Texas Labor Code renders the trial court's judgment under Section 410.251 unless the party has granting the bill of review void. Section 410.258 provided written notice of the suit to the division provides, in part, the following: as required by this section.

HN9 (a) The party who initiated a proceeding TEX. LAB. CODE ANN. § 410.253(b) (Vernon 2006). under this subchapter or Subchapter G must We again interpret HN14 section 410.253 to apply only file any proposed judgment . . ., including a to a party seeking judicial review of a final TWCC proposed default judgment, with the division decision. Because it was Continental, not Guzman, not later than the 30th day before the date on seeking judicial review, Guzman was not required to which the court is scheduled to enter the comply with Section 410.253(b) of the Texas Labor judgment . . . . Code. (f) A judgment entered . . . without complying with the requirements of this section is void. H. Validity of Service of Process

TEX. LAB. CODE ANN. § 410.258(a),(f) (Vernon 2006) Finally, Continental contends service of citation is (emphasis added). HN10 Section 410.258 also states defective because the return of citation is not verified as that the TWCC should receive advance notice of the required by Rule 107 of the Texas Rules of Civil attack on its decision so that the commission may have Procedure. Verification, however, was not required in Page 6 of 7 2009 Tex. App. LEXIS 338, *14

this instance. Service was accomplished by certified CONCLUSION mail, and the return was signed by the district clerk. HN15 District clerks, like sheriffs and constables, are We find no error in the trial court's granting of Guzman's considered "'officers' -- persons who, by virtue of their bill of review. We, therefore, affirm the trial court's offices, are not required [*15] to verify returns." Ins. Co. judgment. v. Lejeune, 261 S.W.3d 852, 859 (Tex. App.--Texarkana 2008, pet. filed). Thus, Continental's assertion is without Karen Angelini, Justice merit.

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1 of 1 DOCUMENT

Cited As of: Mar 30, 2015

COTTON PATCH CAFE, INC., APPELLANT v. CARL McCARTY, APPELLEE

NO. 2-05-082-CV

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

2006 Tex. App. LEXIS 1833

March 9, 2006, Delivered

PRIOR HISTORY: [*1] FROM THE 67TH damages for pain and suffering, physical impairment, DISTRICT COURT OF TARRANT COUNTY. and mental anguish, as well as factually sufficient evi- dence to support the trial court's award; thus, the award CASE SUMMARY: of $ 100,000 was not excessive.

OUTCOME: The court affirmed the trial court's award PROCEDURAL POSTURE: In a restricted appeal, of $ 100,000 for past and future pain and suffering, appellant restaurant challenged a judgment of the 67th physical impairment, and mental anguish damages, but District Court of Tarrant County (Texas), which entered reversed the award of $ 50,000 for past and future medi- a no-answer default judgment against it in a suit brought cal expenses. The court suggested a remittitur of $ by appellee patron for injuries sustained in a trip and fall 50,000. Unless a voluntary remittitur was filed, the court accident. reversed the trial court's judgment and remanded the case to the trial court for a new trial on the issue of unliqui- OVERVIEW: Although the trial court indicated that it dated damages. was awarding the patron $ 50,000 for past and future medical expenses and $ 100,000 for past and future pain LexisNexis(R) Headnotes and suffering, physical impairment, and mental anguish, it did not thereafter itemize the latter award. The court held that the evidence was legally insufficient to support the award for past and future medical expenses because Civil Procedure > Appeals > Reviewability > General the patron neither offered an affidavit in compliance with Overview Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (1997) nor Civil Procedure > Appeals > Standards of Review > proved that his medical expenses were reasonable and Substantial Evidence > Sufficiency of Evidence necessary through expert testimony. However, the [HN1] A restricted appeal is a direct attack on a trial patron's undisputed testimony, including that he fell and court's judgment that affords an appellant the same scope injured his knee, that he had sharp pain in his lower back of review as an ordinary appeal, that is, review of the and legs, that his foot swelled when he walked, that he entire case. A direct attack on a judgment by restricted now used a walker to move around his home, and that he appeal must (1) be brought within six months after the was unable to have surgery to address his injuries result- trial court signs the judgment (2) by a party to the suit (3) ing from the fall, constituted legally sufficient evidence who did not participate in the actual trial, and (4) the to support the trial court's award of some monetary error complained of is apparent from the face of the rec- Page 2 2006 Tex. App. LEXIS 1833, *

ord. Tex. R. App. P. 30. The face of the record, for pur- poses of restricted appeal review, consists of all the pa- pers on file in the appeal, including the reporter's record. Civil Procedure > Pretrial Judgments > Default > En- Appellate review thus covers legal and factual sufficien- try of Default Judgments cy claims. Civil Procedure > Remedies > Damages > General Overview [HN4] When a trial court does not itemize damages in its Civil Procedure > Remedies > Damages > General default judgment, it is impossible to determine what por- Overview tion of the damages were ascribed to each ground of re- Civil Procedure > Appeals > Standards of Review > covery claimed by a plaintiff. Substantial Evidence > Sufficiency of Evidence [HN2] In deciding a legal sufficiency challenge, an ap- pellate court considers only the evidence and inferences Civil Procedure > Appeals > Standards of Review > which, when viewed in the light most favorable to the Substantial Evidence > Sufficiency of Evidence judgment, tend to support the judgment; the court disre- Evidence > Procedural Considerations > Burdens of gards all evidence and inferences to the contrary and will Proof > General Overview overrule the challenge if more than a scintilla of evidence Torts > Damages > Compensatory Damages > Medical supports the finding. An assertion that the evidence is Expenses factually insufficient to support a fact finding means that [HN5] A claim for medical expenses must be supported the evidence supporting the finding is so weak or the by evidence that such expenses were reasonably neces- evidence to the contrary is so overwhelming that the sary for the plaintiff to incur as a result of her injuries. A answer should be set aside and a new trial ordered. The plaintiff may prove that medical expenses are reasonable court is required to consider all of the evidence in the and necessary (1) by presenting expert testimony on the case in making this determination, not just the evidence issues of reasonableness and necessity or (2) by present- that supports the finding. In determining whether dam- ing an affidavit prepared and filed in compliance with ages are excessive, the court applies the same test as for Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (1997). any factual insufficiency question, examining all the ev- Proof of amounts charged or paid is not proof of reason- idence in the record to determine whether sufficient evi- ableness, and evidence that medical expenses are rea- dence supports the damage award, remitting only if some sonable and customary is no evidence that the medical portion is so factually insufficient or so against the great expenses were reasonably necessary. Section 18.001 weight and preponderance of the evidence as to be man- provides in part that, unless a controverting affidavit is ifestly unjust. filed as provided by § 18.001, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that Civil Procedure > Pretrial Judgments > Default > En- the service was necessary is sufficient evidence to sup- try of Default Judgments port a finding of fact by judge or jury that the amount Civil Procedure > Appeals > Standards of Review > charged was reasonable or that the service was neces- Substantial Evidence > Sufficiency of Evidence sary. Evidence > Testimony > Lay Witnesses > General Overview [HN3] A default judgment that is taken against a non- Civil Procedure > Pretrial Judgments > Default > Re- answering defendant on an unliquidated claim operates lief From Default as an admission of all facts set out in the plaintiff's peti- Civil Procedure > Remedies > Damages > General tion except for the amount of damages. A causal nexus Overview between the defendant's conduct and the event sued up- Civil Procedure > Appeals > Remands on, or liability, is thus established in such a case, but [HN6] When an appellate court sustains a no evidence proof of a causal nexus between the event sued upon and point after an uncontested hearing on unliquidated dam- the plaintiff's injuries is still required. A challenge to the ages following a no-answer default judgment, the appro- legal and factual sufficiency of the evidence to show this priate disposition is a remand for a new trial on the issue causal nexus is examined using the same standards ap- of unliquidated damages. But the court may also suggest plicable to any sufficiency challenge. Lay testimony is a voluntary remittitur of this amount. Tex. R. App. P. adequate to prove causation in those cases in which gen- 46.5. If the court finds that part of a damages verdict eral experience and common sense will enable a layman lacks sufficient evidentiary support, its proper course is to determine, with reasonable probability, the causal re- to suggest a remittitur of that part of the damages. lationship between the event and the condition. Page 3 2006 Tex. App. LEXIS 1833, *

awards in similar cases to determine if an award for pain Torts > Damages > Compensatory Damages > Pain & and suffering is excessive. Suffering > Award Calculations [HN7] The process of awarding damages for amorphous, discretionary injuries such as pain and suffering or men- Civil Procedure > Pleading & Practice > Service of tal anguish is inherently difficult because the alleged Process > Summons > Content & Form injury is a subjective, unliquidated, nonpecuniary loss. Civil Procedure > Pretrial Judgments > Default > Re- The presence or absence of pain, either physical or men- lief From Default tal, is an inherently subjective question because the pro- [HN11] Strict compliance with the rules of service of cess is not readily susceptible to objective analysis. Ac- citation must affirmatively appear in the record in order cordingly, the trier of fact is given broad discretion when for a default judgment to withstand a direct attack. When determining such damages. the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. There are no presumptions Torts > Damages > Compensatory Damages > Pain & in favor of valid issuance, service, and return of citation Suffering > Emotional & Mental Distress > Evidence in the face of a direct attack on a default judgment, but [HN8] An award for mental anguish damages must be strict compliance does not require obeisance to the supported either by direct evidence of the nature, dura- minutest detail. Tex. R. Civ. P. 107 requires a return to tion, and severity of the plaintiff's mental anguish, state when the citation was served, to state the manner of thereby establishing a substantial interruption in the service, to be signed by the officer officially or by the plaintiff's daily routine, or by circumstantial evidence of authorized person, and to be verified if the return is by an a high degree of mental pain and distress that is greater authorized person. Tex. R. Civ. P. 107. than mere worry, anxiety, vexation, embarrassment, or anger. Damages for future mental anguish are recovera- COUNSEL: For APPELLANT: Paul A. Bezney, Tracy ble if there is a reasonable probability that they will be L. Stoker, ADKERSON, HAUDER & BEZNEY, P.C., suffered in the future. Dallas, TX.

For APPELLEE: Scott Nichol, MAUERHAN & ASSO- Evidence > Procedural Considerations > Burdens of CIATES, P.C., Azle, TX. Proof > General Overview Torts > Damages > Compensatory Damages > Pain & JUDGES: PANEL B: LIVINGSTON, GARDNER, and Suffering > Loss of Enjoyment WALKER, JJ. [HN9] In order to recover for physical impairment, a plaintiff must show that the effect of the physical im- OPINION BY: SUE WALKER pairment is substantial and extends beyond any pain, suffering, mental anguish, lost wages, or earning capaci- OPINION ty. Damages for physical impairment are meant to com- pensate a plaintiff for an impairment of the capacity to MEMORANDUM OPINION enjoy life. 1

1 See TEX. R. APP. P. 47.4. Torts > Damages > Compensatory Damages > Pain & Suffering > Award Calculations I. INTRODUCTION [HN10] Once the existence of some pain, mental an- The trial court entered a no-answer default judgment guish, and impairment has been established, there is no against Appellant Cotton Patch Cafe, Inc. (Cotton Patch) objective way to measure the adequacy of the amount in a suit brought by Appellee Carl McCarty for injuries awarded as compensation, which is generally left to the sustained in a trip and fall accident. Cotton Patch brings discretion of the fact-finder. The process of awarding this restricted appeal and complains in two points that the damages for amorphous; discretionary injuries such as evidence is legally and factually insufficient to show a pain and suffering is inherently difficult because the al- causal nexus between McCarty's trip and fall and his leged injury is a subjective, unliquidated, nonpecuniary injuries and damages, that the evidence is insufficient to loss. The amounts awarded for such damages are neces- support the awards for past and future medical expenses, sarily speculative, and each case must be judged on its pain and suffering, physical impairment, and mental an- own facts. Even though each case must be judged on its guish, and that the trial court lacked jurisdiction because own unique facts, it is proper to consider other approved of an error on the return of citation. We will affirm [*2] Page 4 2006 Tex. App. LEXIS 1833, *

in part and reverse and remand in part, subject to a vol- S.W.3d at 590. The face of the record, for purposes of untary remittitur. restricted appeal review, consists of all the papers on file in the appeal, including the reporter's record. Norman II. FACTUAL AND PROCEDURAL BACK- Commc'ns, 955 S.W.2d at 270. Our review thus covers GROUND legal and factual sufficiency claims, including the McCarty sued Cotton Patch on June 7, 2004, alleg- amount of damages awarded and Cotton Patch's causal ing that he suffered injuries and incurred damages caused nexus claim. See id.; Morgan v. Compugraphic Corp., by Cotton Patch's negligence. McCarty served Cotton 675 S.W.2d 729, 731-32, 27 Tex. Sup. Ct. J. 501 (Tex. Patch on June 23, 2004, but Cotton Patch did not file an 1984). Cotton Patch meets the first three requirements answer. On August 27, 2004, the trial court held a hear- for a restricted appeal; only the fourth requirement is at ing on McCarty's request for a default judgment. A por- issue--whether Cotton Patch demonstrated on the face of tion of the evidence at the default judgment hearing the record that the trial court erroneously entered a de- shows that McCarty and his wife entered the Cotton fault judgment against it. Patch Restaurant in Lake Worth on July 5, 2003. As the IV. Sufficiency Challenges hostess was leading them to a table, McCarty tripped over a dustpan and fell on his right knee. McCarty went In its first issue, Cotton Patch argues that the evi- to a hospital the next day, received X-rays, and was re- dence is legally and factually insufficient [*5] (1) to ferred back to his family physician. A subsequent MRI show a causal nexus between McCarty's trip and fall and indicated that McCarty had a torn meniscus in his knee, his injuries and damages and (2) to support the trial and McCarty's doctor recommended that he have surgery court's award for unliquidated damages. on his knee and lower back. Through medical invoices, A. Standards of Review McCarty offered evidence that he has incurred medical expenses up until the time of the default judgment hear- [HN2] In deciding a legal sufficiency challenge, we ing totaling about $ 7,000. McCarty also offered evi- consider only the evidence and inferences which, when dence in the form of an estimate from a medical [*3] viewed in the light most favorable to the judgment, tend office indicating that the cost of future surgery for his to support the judgment; we disregard all evidence and knee would total about $ 14,677. McCarty testified that inferences to the contrary and will overrule the challenge the back surgery would could cost about $ 25,000 and if more than a scintilla of evidence supports the finding. that he would likely need physical therapy after his knee Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84, surgery, which would cost "anywhere from several hun- 35 Tex. Sup. Ct. J. 881 (Tex. 1992). An assertion that the dred dollars up." McCarty also described the extent to evidence is factually insufficient to support a fact finding which the accident and injuries have affected him, which means that the evidence supporting the finding is so we detail in our sufficiency analysis below. weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial or- The trial court ultimately entered an August 27, dered. Garza v. Alviar, 395 S.W.2d 821, 823, 9 Tex. 2004 final default judgment awarding McCarty $ 50,000 Sup. Ct. J. 76 (Tex. 1965). We are required to consider for past and future medical expenses; $ 100,000 for past all of the evidence in the case in making this determina- and future pain and suffering, physical impairment, and tion, not just the evidence that supports the finding. mental anguish; prejudgment and postjudgment interest; Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07, and costs. Cotton Patch filed a supersedeas bond on Jan- 41 Tex. Sup. Ct. J. 683 (Tex.), cert. denied, 525 U.S. uary 18, 2005, and a notice of restricted appeal on Feb- 1017, 142 L. Ed. 2d 450, 119 S. Ct. 541 (1998). [*6] In ruary 25, 2005. determining whether damages are excessive, we apply III. RESTRICTED APPEAL the same test as for any factual insufficiency question, examining all the evidence in the record to determine [HN1] A restricted appeal is a direct attack on the whether sufficient evidence supports the damage award, trial court's judgment that affords an appellant the same remitting only if some portion is so factually insufficient scope of review as an ordinary appeal, that is, review of or so against the great weight and preponderance of the the entire case. In re E.K.N., 24 S.W.3d 586, 590 (Tex. evidence as to be manifestly unjust. Torrington Co. v. App.--Fort Worth 2000, no pet.). A direct attack on a Stutzman, 46 S.W.3d 829, 851, 44 Tex. Sup. Ct. J. 225 judgment by restricted appeal must (1) be brought [*4] (Tex. 2000); Larson v. Cactus Util. Co., 730 S.W.2d within six months after the trial court signs the judgment 640, 641, 30 Tex. Sup. Ct. J. 331 (Tex. 1987); Pope v. (2) by a party to the suit (3) who did not participate in the Moore, 711 S.W.2d 622, 624, 29 Tex. Sup. Ct. J. 412 actual trial, and (4) the error complained of is apparent (Tex. 1986). from the face of the record. See TEX. R. APP. P. 30; Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d B. Causal Nexus 269, 270, 41 Tex. Sup. Ct. J. 83 (Tex. 1997); E.K.N., 24 Page 5 2006 Tex. App. LEXIS 1833, *

Generally, [HN3] a default judgment that is taken problem" twenty-five years earlier that required therapy, against a nonanswering defendant on an unliquidated not surgery. McCarty testified that he fell and injured his claim operates as an admission of all facts set out in the knee and lower back. He testified that "as a result of [the plaintiff's petition except for the amount of damages. trip and fall]," he went to the hospital, he received Heine, 835 S.W.2d at 83; see also Argyle Mechanical, X-rays, he underwent an MRI of his knee and back, he Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. needs surgery on his knee and back, he now uses a walk- App.--Dallas 2005, no pet.). A causal nexus between the er to help move about his house, and he has pain (back defendant's conduct and the event sued upon, or liability, and both legs) from his injures that affect his "state of is thus established in such a case, but proof of a causal mind." We hold that the evidence is legally and factually nexus between the event sued upon and the plaintiff's sufficient to establish a causal nexus between McCarty's injuries [*7] is still required. 2 Morgan, 675 S.W.2d at trip and fall (the event sued upon) and his injuries and 731- 32; Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. damages. See Morgan, 675 S.W.2d at 731-32; Jack- App.--Houston [14th Dist.] 2002, no pet.). A challenge to son, 77 S.W.3d at 902. [*9] the legal and factual sufficiency of the evidence to show C. Unliquidated Damages this causal nexus is examined using the same standards applicable to any sufficiency challenge. Jackson, 77 Although the trial court indicated at the conclusion S.W.3d at 902. "Lay testimony is adequate to prove cau- of the default judgment hearing that it was awarding sation in those cases in which general experience and McCarty $ 50,000 for past and future medical expenses common sense will enable a layman to determine, with and $ 100,000 for past and future pain and suffering, reasonable probability, the causal relationship between physical impairment, and mental anguish, it did not the event and the condition." Morgan, 675 S.W.2d at thereafter itemize the latter award. [HN4] When the trial 733. court does not itemize damages in its default judgment, it is impossible to determine what portion of the damages 2 In Morgan, the supreme court stated, were ascribed to each ground of recovery claimed by the plaintiff. Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex. The causal nexus between the App.--Fort Worth 2003, no pet.). We will therefore ex- event sued upon and the plaintiff's amine the record to determine whether legally sufficient injuries is strictly referable to the evidence exists to establish each element of damage and damages portion of the plaintiff's whether the amount--a $ 100,000 global award for the cause of action. Even if the de- total of all of these elements of damage--is excessive. fendant's liability has been estab- Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex. App.--San lished, proof of this causal nexus Antonio 2004, no pet.) (recognizing that when trial court is necessary to ascertain the awards lump sum damage award, appellants are limited amount of damages to which the to challenging damage award as a whole); Pentes De- plaintiff is entitled. This is true sign, Inc. v. Perez, 840 S.W.2d 75, 80 (Tex. App.--1992, because the plaintiff is entitled to writ denied). recover damages only for those 1. Legal [*10] Sufficiency injuries caused by the event made the basis of suit; that the defendant A. Medical Expenses has defaulted does not give the plaintiff the right to recover for [HN5] A claim for medical expenses must be sup- damages which did not arise from ported by evidence that such expenses were reasonably his cause of action. necessary for the plaintiff to incur as a result of her inju- ries. Jackson, 77 S.W.3d at 902; see also Walker v. Ricks, 101 S.W.3d 740, 746 (Tex. App.--Corpus Christi Morgan, 675 S.W.2d at 732 2003, no pet.). A plaintiff may prove that medical ex- penses are reasonable and necessary (1) by presenting [*8] Here, Cotton Patch contends that McCarty's expert testimony on the issues of reasonableness and testimony at the default judgment hearing did not estab- necessity or (2) by presenting an affidavit prepared and lish that his knee and lower back injuries were "caused filed in compliance with section 18.001 of the Texas Civ- by" or "a result of" the trip and fall. McCarty's petition il Practice and Remedies Code. 3 Jackson, 77 S.W.3d at states that he "suffered severe injuries as a proximate 902; Rodriguez- Narrea v. Ridinger, 19 S.W.3d 531, result of [Cotton Patch's] negligence" and that "as a re- 532 (Tex. App.--Fort Worth 2000, no pet.). Proof of sult of [McCarty's] injuries, [he] suffered . . . damages." amounts charged or paid is not proof of reasonableness, McCarty testified that he never had any "knee problems" and evidence that medical expenses are reasonable and before the accident and that he had only a "minor back customary is no evidence that the medical expenses were Page 6 2006 Tex. App. LEXIS 1833, *

reasonably necessary. Jackson, 77 S.W.3d at 902; Ro- P. 46.5; Formosa Plastics Corp. v. Presidio Eng'rs, 960 driguez-Narrea, 19 S.W.3d at 532. S.W.2d 41, 51, 41 Tex. Sup. Ct. J. 289 (Tex. 1998) (rec- ognizing two means by which a remittitur may be ef- 3 Section 18.001 provides in relevant part: fected on appeal, including by suggestion by a court of appeals in lieu of ordering a new trial). If we find that (b) Unless a controverting affi- part of a damages verdict lacks sufficient evidentiary davit is filed as provided by this support, our proper course is to suggest a remittitur of section, an affidavit that the that part of the damages. Larson, 730 S.W.2d at 641; amount a person charged for a Pope, 711 S.W.2d at 624. Accordingly, we suggest a service was reasonable at the time remittitur of $ 50,000, the amount the trial court awarded and place that the service was pro- for past and future medical [*13] expenses. vided and that the service was B. Pain and Suffering necessary is sufficient evidence to support a finding of fact by judge [HN7] The process of awarding damages for amor- or jury that the amount charged phous, discretionary injuries such as pain and suffering was reasonable or that the service or mental anguish is inherently difficult because the al- was necessary. leged injury is a subjective, unliquidated, nonpecuniary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.--Texarkana 2002, no pet.). The presence or absence TEX. CIV. PRAC. & REM. CODE ANN. § 18.001 of pain, either physical or mental, is an inherently sub- (Vernon 1997). jective question because the process is not readily sus- ceptible to objective analysis. Dawson, 107 S.W.3d at [*11] Here, the trial court awarded McCarty $ 751. Accordingly, the trier of fact is given broad discre- 50,000 for past and future medical expenses, but tion when determining such damages. Sw. Tex. Coors, McCarty neither offered an affidavit in compliance with Inc. v. Morales, 948 S.W.2d 948, 951-52 (Tex. App.--San civil practice and remedies code section 18.001 nor Antonio 1997, no writ). In this case, McCarty testified proved that his medical expenses were reasonable and that he never had knee problems in the past and that he necessary through expert testimony. The trial court ad- had only one episode of back problems twenty-five years mitted invoices indicating that McCarty had incurred $ ago. He testified that he fell on his right knee, causing 7,000 in medical expenses and an estimate from a medi- injury to his knee and lower back. After the fall and a cal office showing that surgery on McCarty's knee would subsequent visit to the hospital and his family physician, cost over $ 14,000, and McCarty testified that back sur- an MRI of McCarty's knee indicated that he had a torn gery would cost about $ 25,000. This evidence is not meniscus, and his doctor recommended that he have proof of the reasonableness of these charges. See Smith surgery on his knee [*14] and back and indicated that v. Sw. Bell Tel. Co., 101 S.W.3d 698, 703 (Tex. physical therapy after surgery would be required. App.--Fort Worth 2003, no pet.) (reasoning that medical McCarty further testified that he has a needle-like pain bill records do not establish that medical expenses listed that extends from his lower back down both of his legs, therein were reasonable). No evidence exists that almost to his knees. At the conclusion of the default McCarty's past medical expenses were reasonable or that judgment hearing, McCarty requested that the trial court the estimates for the suggested future surgeries were award him $ 100,000 for his non-medical-expense dam- reasonable. Accordingly, we sustain Cotton Patch's first ages. Based on McCarty's undisputed testimony, we hold issue to the extent it argues that the evidence is legally that the evidence is legally sufficient to support the trial insufficient to support the trial court's award for past and court's award of some monetary damages for past and future medical expenses. future pain and suffering. The supreme court has instructed [*12] that [HN6] C. Mental Anguish "when an appellate court sustains a no evidence point after an uncontested hearing on unliquidated damages [HN8] An award for mental anguish damages must following a no-answer default judgment, the appropriate be supported either by direct evidence of the nature, du- disposition is a remand for a new trial on the issue of ration, and severity of the plaintiff's mental anguish, unliquidated damages." Heine, 835 S.W.2d at 86; see thereby establishing a substantial interruption in the also Lefton v. Griffith, 136 S.W.3d 271, 280 (Tex. plaintiff's daily routine, or by circumstantial evidence of App.--San Antonio 2004, no pet.) (remanding for new a high degree of mental pain and distress that is greater trial on economic damages and mental anguish damages, than mere worry, anxiety, vexation, embarrassment, or but affirming attorney fee award). But we may also sug- anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444, gest a voluntary remittitur of this amount. TEX. R. APP. 38 Tex. Sup. Ct. J. 828 (Tex. 1995). Damages for future Page 7 2006 Tex. App. LEXIS 1833, *

mental anguish are recoverable "if there is a reasonable evidence concerning these elements of damage is so fac- probability that they will be suffered in the future." tually insufficient that it is against the great weight and Lubbock County v. Strube, 953 S.W.2d 847, 857 [*15] preponderance of the evidence as to be manifestly unjust. (Tex. App.--Austin 1997, pet. denied) (op. on reh'g). Pope, 711 S.W.2d at 624; Pentes, 840 S.W.2d at 80-81. Here, McCarty testified that he has "AR stenosis" and However, [HN10] once the existence of some pain, "severe lung problems," that he is being treated for his mental anguish, and impairment has been established, lung condition, and that he is unable to have heart sur- there is no objective way to measure the adequacy of the gery because his oxygen level is "so bad." Because of amount awarded as compensation, which is generally left these prior conditions (unrelated to the accident at the to the discretion of the fact-finder. Dawson, 107 S.W.3d Cotton Patch restaurant), McCarty is unable to have the at 751. The process of awarding damages for amorphous, recommended surgery on his knee and back and resolve discretionary injuries such as pain and suffering is in- the pain (needle-like pain) and injuries associated there- herently difficult because the alleged injury is a subjec- with. McCarty testified that he would "definitely" have tive, unliquidated, nonpecuniary loss. Id. The amounts the surgeries on his knee and back if he were able to re- awarded for such damages are necessarily speculative, solve his other health problems because he "can't live and each case must be judged on its own facts. Id. like this." McCarty further testified that his injuries have Even though each case must be judged on its own affected his state of mind because he is "taking so much unique facts, it is proper to consider other approved medication" and that "it has a lot to do with my home awards in similar cases to determine if an award for pain life." He continued, "They give me Celebrex, viagra and and suffering [*18] is excessive. HCRA of Texas, Inc. stuff like that to help me, but it doesn't work. So the v. Johnston, 178 S.W.3d 861, 872 (Tex. App.--Fort Worth urologist is trying to talk me into some sort of pump 2005, no pet.). In HCRA, this court determined that an now, so . . . ." Based on McCarty's undisputed testimony, award of $ 75,000 was not excessive to compensate a which also indicated a reasonable probability of contin- nursing home resident for physical pain and mental an- ued mental anguish in the future, we hold that the evi- guish suffered from decubitis ulcers and malnutrition. Id. dence is legally sufficient to [*16] support the trial In Sunbridge Healthcare Corp., the court held that an court's award of some monetary damages for past and award of one million dollars was not excessive to com- future mental anguish. pensate the plaintiff for physical pain and mental anguish suffered from injuries sustained in falls. Sunbridge D. Physical Impairment Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex. [HN9] In order to recover for physical impairment, App.--Texarkana 2005, no pet.). In Cresthaven Nursing the plaintiff must show that the effect of the physical Residence v. Freeman, the court held that an award of impairment is substantial and extends beyond any pain, one million dollars--remitted down from four million suffering, mental anguish, lost wages, or earning capaci- dollars--was not excessive to compensate the plaintiff for ty. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d physical pain and mental anguish suffered from two 757, 772, 46 Tex. Sup. Ct. J. 1133 (Tex. 2003). Damages broken legs sustained in a fall. 134 S.W.3d 214, for physical impairment are meant to compensate a 228-232 (Tex. App.--Amarillo 2003, no pet.). In Guzman plaintiff for an impairment of the capacity to enjoy life. v. Guajardo, the court held that an award of $ 600,000 Santa Rosa Med. Ctr. v. Robinson, 560 S.W.2d 751, 762 was not excessive to compensate a young boy who en- (Tex. Civ. App.--San Antonio 1977, no writ). McCarty, dured fifteen minutes of pain sustained in a car accident who is seventy-six and retired, testified that he is no before dying. [*19] 761 S.W.2d 506, 512 (Tex. longer able to work on his pool, that his foot swells up App.--Corpus Christi 1988, writ denied). when he walks and "steps off a curb or something like In the instant case, McCarty's testimony, including that," and that he has to use a walker to move about his that he fell and injured his knee, that he has sharp pain in home, which he never used before. Based on McCarty's his lower back and legs, that his foot swells when he undisputed testimony, we hold that the evidence is le- walks, that he now uses a walker to move around his gally sufficient to support the trial court's award of some home, and that he is unable to have surgery in order to monetary damages for past and future physical impair- address his injuries resulting from the fall, constitutes ment. factually sufficient evidence to support the trial court's award; the award of $ 100,000 is not excessive. Accord- 2. Factual Sufficiency ingly, we overrule Cotton Patch's first issue to the extent Having determined that the evidence is legally suffi- it argues that the evidence is legally and factually insuf- cient [*17] to support the trial court's award for past ficient to support the trial court's awards for past and and future pain and suffering, mental anguish, and phys- future pain and suffering, mental anguish, and physical ical impairment, we must now determine whether the impairment. Page 8 2006 Tex. App. LEXIS 1833, *

V. Service of Citation an incorrect final numeral in the registered agent's zip code. The zip code in McCarty's petition correctly states In its second issue, Cotton Patch argues that error is that the registered agent's zip code is "75063," the cita- apparent on the face of the record because the return of tion contains the correct zip code on the same page as the citation contains an incorrect numeral which, conse- officer's return, and Cotton Patch does not argue that it quently, precluded the trial court from acquiring jurisdic- was not served. At the conclusion of the default judg- tion over it. [HN11] Strict compliance with the rules of ment hearing, the trial court found that Cotton Patch had service of citation must affirmatively appear in the rec- been served with citation and with a copy of McCarty's ord in order for a default judgment to withstand a direct petition. Thus, because the return of citation complies attack. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, with Rule 107, because Cotton Patch does not claim that 152, 37 Tex. Sup. Ct. J. 1216 (Tex. 1994). [*20] When it did not receive service, and because the citation and the attempted service of process is invalid, the trial court return show that citation was actually served on Cotton acquires no personal jurisdiction over the defendant, and Patch's registered agent, we hold that the service [*22] the default judgment is void. Westcliffe, Inc. v. Bear was not defective so as to deprive the trial court of juris- Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. diction over Cotton Patch. See Regalado v. State, 934 App.--Dallas 2003, no pet.). There are no presumptions S.W.2d 852, 854 (Tex. App.--Corpus Christi 1996, no in favor of valid issuance, service, and return of citation writ) (reasoning that service of process will not be inval- in the face of a direct attack on a default judgment, but idated so long as the citation and return show with rea- strict compliance does not require "obeisance to the sonable certainty that citation was served on defendant). minutest detail." Uvalde Country Club v. Martin Linen We overrule Cotton Patch's second issue. Supply Co., 690 S.W.2d 884, 885, 28 Tex. Sup. Ct. J. 423 (Tex. 1985); Herbert v. Greater Gulf Coast Enters., 915 VI. Conclusion S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995, We affirm the trial court's award of $ 100,000 for no writ). past and future pain and suffering, physical impairment, The officer's return of citation states that service was and mental anguish damages, but we reverse the trial made upon Cotton Patch's registered agent at "4825 W. court's award of $ 50,000 for past and future medical Royal Ln, Irving, TX 75062" [Emphasis added.]. expenses. We suggest a remittitur of $ 50,000, the McCarty's petition and the citation, however, identify the amount of the trial court's past and future medical ex- registered agent's address as 4825 West Royal Lane, Ir- penses award. If, within fifteen days of the date of this ving, Texas "75063." [Emphasis added.]. Cotton Patch opinion, McCarty files in this court a remittitur of $ argues that this numerical discrepancy occurring only on 50,000, then our subsequent judgment will reform the the return of citation--the citation and the petition contain trial court's judgment in accordance with the remittitur the correct digit--constitutes [*21] error on the face of and, as reformed, affirm that judgment. See TEX. R. the record. We cannot agree. Rule 107 of the Texas Rules APP. P. 46.5. Unless a voluntary remittitur is filed, we of Civil Procedure requires the return to state when the reverse the trial court's judgment and remand the case to citation was served, to state the manner of service, to be the trial court for a new trial on the issue [*23] of signed by the officer officially or by the authorized per- unliquidated damages. son, and to be verified if the return is by an authorized SUE WALKER person. TEX. R. CIV. P. 107. The return clearly complies with the requirements of Rule 107, but simply contains JUSTICE | | Caution As of: April 7, 2015 5:35 PM EDT

Daniel v. Ft. Worth & R. G. R. Co. Supreme Court of Texas March 9, 1903, Decided No. 1162

Reporter 96 Tex. 327; 72 S.W. 578; 1903 Tex. LEXIS 139

J. L. Daniel v. Fort Worth & Rio Grande Railway the owner appealed. The court reversed, holding that Company the owner was not restricted to an instruction that limited his recovery to damages for the reduction in Prior History: [***1] Error to the Court of Civil Appeals property value or discomfort. Although the jury found no for the Second District, in an appeal from Erath County. loss of property value, it could have found that the owner was entitled to nuisance damages for the dust Disposition: Reversed and remanded. and noise. The court relied on prior jurisprudence in holding that the owner was entitled to an instruction on Core Terms both types of damages. The action for reduction damages was not the owner's exclusive remedy.

damages, coal, depreciation, discomfort, property value, Outcome railroad, noise, enjoyment, hoist The court reversed the appellate court's decision. The court remanded the owner's action for a new trial. The Case Summary court ordered the railroad to pay appellate costs.

Procedural Posture LexisNexis® Headnotes Plaintiff in error, the owner of a residential property, sought review of an order from the Court of Civil Appeals Real Property Law > Encumbrances > Adjoining for the Second District (Texas), which affirmed a trial Landowners > General Overview court's judgment in favor of defendant in error, a railroad, Real Property Law > Torts > General Overview on the owner's action for the depreciation to the value of his property caused by the railroad's coal hoist and Real Property Law > Torts > Nuisance > General Overview noise and coal dust that interfered with the owner's Real Property Law > ... > Nuisance > Remedies > General enjoyment of his home. Overview Real Property Law > ... > Nuisance > Types of Nuisances > Overview Permanent Nuisances The owner's house was located near the railroad's Torts > ... > Types of Losses > Pain & Suffering > General tracks. The railroad constructed a platform and the coal Overview hoist adjacent to the tracks and the owner's property. Torts > ... > Types of Damages > Property Damages > The owner filed an action for damages to his property General Overview value and his family's discomfort, asserting that the dust from the hoist entered his house and that noise from the HN1 If a structure, permanent in character, is a nuisance hoist kept his family awake at night. The trial court from which injury results to adjacent property, and by instructed the jury on the reduction of property value but which nuisance the health of the occupants is impaired refused the owner's instruction on damages for or the comfortable enjoyment of it is destroyed, the discomfort. The jury delivered a verdict for the railroad, injured party is not limited to compensation for the and the owner appealed the refusal of his instruction on impairment of the value of the property. To the contrary, discomfort damages. The appellate court affirmed, and it is a rule of Texas law that full compensation may be 96 Tex. 327, *327; 72 S.W. 578, **578; 1903 Tex. LEXIS 139, ***1

awarded in one suit to the owner for all damages Eq., 316; Illinois Cen. Railway Co. v. Grabill, 50 Ill., 241; sustained from the same cause, and a party damaged Hockaday v. Wortham, 22 Texas Civ. App., 419. in the value of his property and in his health or the enjoyment of the property, should be denied the right to West, Chapman & West, for appellee. -- The court recover for either or both wrongs. The existence of a charged the jury the proper measure of damages, and permanent nuisance may cause injury by destroying did not err in refusing appellant's first special request. the comfort of a home and not cause loss in the market Hockaday v. Wortham, 22 Texas Civ. App., 419; value of the property, or it may cause injury to both, Gainesville, H. & W. Railway Co. v. Hall, 78 Texas, 169; hence adequate compensation must embrace all the Rosenthal v. T. B. & H. Railway Co., 79 Texas, 325; City damage done and no more. of San Antonio v. Mackey, 36 S. W. Rep., 760; Denison & P. S. Railway Co. v. O'Malley, 18 Texas Civ. App., 200. Headnotes/Syllabus Judges: Brown, Associate Justice.

Headnotes Opinion by: BROWN Railway -- Nuisance -- Coal Hoist Near Residence -- Damages. Opinion The damages recoverable for the creation of a nuisance [*328] [**579] The Court of Civil Appeals made no near plaintiff's residence (the dust, noise, etc., from the findings of fact in this case, but we have referred to the construction of a coal hoist and the supplying locomotive record from which we make the following statement: engines with coal) are not limited to depreciation in the market value of his property, but may include, along Defendant in error was operating a railroad through with such depreciation, compensation for the personal [***3] the town of Stephenville, in Erath County, and J. annoyance and discomfort suffered by plaintiff and his T. Daniel purchased a lot in said town, about 250 feet wife in the use of their home. west of the railroad track, on which he had resided for some years when the defendant in error built a platform, Railway -- Cases Distinguished. 300 feet long, between the main track and plaintiff's residence, between the two side tracks which were on Rosenthal v. Railway Co., 79 Texas, 325; Baugh v. the west side of the main track. The railroad company Railway Co., 80 Texas, 56; Gainesville, H. & W. Railway also erected near the platform a hoist, about twentyfive Co. v. Hall, 78 Texas, 169, and Denison & P. S. Railway feet high, by which the coal was raised from the platform Co. v. O'Malley, 18 Texas Civ. App., 200, distinguished in iron buckets and dumped into the tenders of engines. from the present case. There was evidence which tended to prove, that the coal dust from coal thus placed in the tender was Syllabus carried by the wind to and into plaintiff's residence and settled upon his furniture, the walls, and upon the Daniel sued the railway company and appealed from a outside of the house so as to produce discomfort to the judgment for defendant. On its affirmance he obtained plaintiff and his family. The evidence also tended to writ of error. show that the noise caused by operating the hoist and buckets, and the noise caused by the engines while Counsel: J. W. Parker, W. T. Carlton, and J. B. Keith, taking coal, prevented the plaintiff and his wife from for plaintiff in error. -- In an action by one against a sleeping at night and disturbed and annoyed them in railroad for maintaining a nuisance near [***2] his their enjoyment of their home. residence, the damages are not limited to the Plaintiff brought this suit against the railroad company depreciation of the property, but may include damages to recover the damages occasioned [***4] to him by the for discomfort to the inhabitants of such house. depreciation of his property on account of the facts Baltimore & P. Railway Co. v. Fifth Baptist Church, 108 before stated, which were alleged in the petition with U.S., 317; Lahr v. Metropolitan El. Railway Co., 104 N. sufficient certainty and particularity, and the petition Y., 268; Fifth National Bank v. N. Y. El. Railway Co., 118 also contained the following allegation: "That by reason U.S., 608; Pennsylvania Railway Co. v. Angel, 41 N. J. of the things hereinbefore alleged, plaintiff and his wife Page 2 of 4 96 Tex. 327, *328; 72 S.W. 578, **579; 1903 Tex. LEXIS 139, ***4

have experienced and have been subjected to defendant's shops. It might then, perhaps, have brought continually, both day and night, great physical and in the market as great a price to be used for some other mental discomfort, and been vexed, harassed and purpose. But, as the court below very properly said to annoyed to a degree almost insupportable, to their the jury, the congregation had the same right to the great and irreparable injury, and have been thereby comfortable enjoyment of its house for church purposes damaged to the further sum of $ 500." The court charged that a private gentleman has to the comfortable the jury upon the right of the plaintiff to recover for the enjoyment of his own house, and it is the discomfort and depreciation in the value of his property, but refused to annoyance in its use for those purposes which is the submit to the jury the following special charge by the primary consideration in allowing damages. As with a plaintiff: "If you believe from a preponderance of the blow on the face, there may be no arithmetical rule for evidence in this case that the plaintiff J. T. Daniel and his the estimate of damages. There is, however, an injury, wife have been personally annoyed and discomforted the extent of which the jury may measure." [***7] This in the use and enjoyment of their home by smoke or clear statement of the proposition renders argument in coal dust, or by vibrating, grating or disagreeable noises its application to this case unnecessary. We have found coming from defendant's coal yards and coal hoist into but one case that holds the contrary doctrine, -- or on the house and premises of plaintiff, then you will Kempner and Wife v. Louisville, 14 Bush, 87, -- in which find for plaintiff and award to him by [***5] your verdict the Court of Appeals of Kentucky incidentally stated that such damages as in your judgment will reasonably and the plaintiffs in the case were not entitled to recover "for fairly compensate him for such annoyance or loss of time on the part of the occupants on account of discomfiture suffered by himself and wife, not to exceed sickness caused by the stagnant water, etc;" but the the amount sued for for annoyance." There was a question does not seem to have elicited discussion verdict and a judgment for the defendant, which was from that court and no reason is assigned nor authority affirmed by the Court of Civil Appeals. cited in support of the decision.

The trial court committed error in refusing the special In support of its opinion, the Court of Civil [**580] charge requested by the plaintiff. If the plaintiff was Appeals cites: Rosenthal v. Railway Co., 79 Texas, 325; entitled to recover upon the evidence the right of Baugh v. Railway Co., 80 Texas, 56; Railway Co. v. recovery is not limited to the depreciation in [*329] the Hall., 78 Texas, 169, and Railway Co. v. O'Malley, 18 value of the property, but he may recover damages for Texas Civ. App., 200. the discomfort of himself and family in the use of the home caused by the erection and use of the coal hoists. In Rosenthal v. Railway Company, the right of recovery Baltimore & P. Railway Co. v. Fifth Baptist Church, 108 for personal inconvenience on account of the noises U.S., 317; Randolph v. Bloomfield, 77 Iowa, 52; Illinois complained of was not in issue, but the plaintiff claimed C. Railway Co. v. Grabill, 50 Ill., 241; Pierce v. Wagner, damages to the property because of faulty construction 29 Minn., 355; Brown v. Chicago & A. Railway Co., 80 of the roadbed and on account of noise, smoke, etc., Mo., 457; Pennsylvania Railway Co. v. Angel, 41 N. J. and the court simply held that under the facts of that Eq., 316. case the depreciation in the value [***8] of the property was the safest measure of damages. In Baltimore & Potomac Railway Co. v. Fifth Baptist Church, above cited, the Supreme Court of the United In Baugh v. Railway Company, the plaintiff alleged States expresses the rule in this explicit language: "The depreciation in [*330] the value of his property, but in instruction of the court as to the estimate [***6] of support of his claim set up matters of a character which damages was correct. Mere depreciation of the property would have sustained an action for personal discomfort, was not the only element for consideration. That might, showing that the nuisance was temporary, and the court indeed, be entirely disregarded. The plaintiff was entitled held that under such allegations the plaintiff could not to recover because of the inconvenience and discomfort recover for loss in the value of the property. caused to the congregation assembled, thus necessarily tending to destroy the use of the building for the In Railway Company v. Hall, the action was for purposes for which it was erected and dedicated. The depreciation in the value of property arising from smoke, property might not be depreciated in its salable or noise, etc. The railroad was constructed near to but not market value, if the building had been entirely closed for on the land. The question arose under art. 1, sec. 17, of those purposes by the noise, smoke, and odors of the the Constitution, it being claimed by the railroad Page 3 of 4 96 Tex. 327, *330; 72 S.W. 578, **580; 1903 Tex. LEXIS 139, ***8

company, that the damage to the property could not be sustained from the same cause, and we see no reason recovered, there being no taking of it, but our Supreme why a party damaged in the value of his property and in Court held that it could be recovered. his health or the enjoyment of the property, should be denied the right to recover for either or both wrongs. Railway Company v. O'Malley was a suit for damages The existence of a permanent nuisance may cause on account of the location of stock pens near the home injury by destroying the comfort of a home and not of plaintiff, and claim was made for the difference cause loss in the market value of the property, or it may between the value of the property before and after the cause injury to both, hence adequate compensation construction of the pens, upon the allegation that the must embrace all the damage done and no more. pens rendered the property uncomfortable for the occupants as a home. [***9] There was no claim of damages for personal discomfort, and the court held The pleadings and evidence in this case do not present that under the facts the damages to the property were any question of excuse for the railroad [***10] company recoverable. upon the ground that it was reasonably necessary that the coal hoist should be located at that particular place, No case decided by this court justifies the conclusion we therefore do not pass upon that question. that, HN1 if a structure, permanent in character, is a nuisance from which injury results to adjacent property, It is ordered that the judgments of the District Court and and by which nuisance the health of the occupants is of the Court of Civil Appeals be reversed and that this impaired or the comfortable enjoyment of it is destroyed, cause be remanded, and that the defendant in error pay the injured party is limited to compensation for the the costs of the Court of Civil Appeals and of this court. impairment of the value of the property. To the contrary, it is a rule of our law that full compensation may be Reversed and remanded. awarded in one suit to the owner for all damages

Page 4 of 4 Page 1

Caution As of: Mar 30, 2015

M. V. DAVIS V. McCRAY REFRIGERATOR SALES CORPORATION.

No. 7801

SUPREME COURT OF TEXAS

136 Tex. 296; 150 S.W.2d 377; 1941 Tex. LEXIS 334

April 9, 1941

SUBSEQUENT HISTORY: [***1] Rehearing As the judgment does not dispose of defendant's cross Overruled May 7, 1941 action or any of the affirmative prayers of the defendant, it is not a final judgment and will not support an appeal. PRIOR HISTORY: Error to the Court of Civil Ap- Chambers v. Jones, 101 S.W. (2d) 936; Clary Lbr. Co. v. peals for the Second District, in an appeal from Tarrant Patterson, 28 S.W. (2d) 825; Kosse Natl. Bank v. Derden, County. 36 S.W. (2d) 295. Suit by the McCray Refrigerator Sales Corporation Greathouse & Swanger, of Fort worth, for defendant in against M. V. Davis upon a note and a contract for the error. purchase of a refrigerator from the plaintiff. Defendant filed a plea in abatement upon the grounds that plaintiff In sustaining a plea in abatement that plaintiff was a for- was a foreign corporation and had no permit to operate in eign corporation and did not have a permit to do business the State. He also filed a cross action asking that the in Texas was a judgment dismissing the cause and not debt and lien be cancelled, for a return of the money paid one that plaintiff take nothing, and the court having tried on said refrigerator, and for damages for merchandise the cause on its merits, the verdict of the jury entitled lost because of improper refrigeration. After hearing the plaintiff to its debt and foreclosure. S.W. Smyth Co. v. plea of privilege and the merits of the case together, the Fort Worth Glass & Sand Co., 142 S.W. 1157; Ragness court sustained the plea of privilege and dismissed the v. Oliver, 26 S.W. (2d) 357; W. W. Kimball Co. v. Par- suit, without taking any action on the defendant's cross sons, 49 S.W. (2d) 821. action. The Court of Civil Appeals reversed this judg- ment and rendered judgment for the refrigerator compa- OPINION BY: ALEXANDER ny for the balance of the note with interest and attorney's fee and for foreclosure of chattel mortgage, 140 S.W. OPINION (2d) 477, and defendant has brought error to the Supreme Court. [**377] [*297] MR. CHIEF JUSTICE AL- EXANDER delivered the opinion of the Court. Judgment of the Court of Civil Appeals is reversed and the appeal is dismissed. Plaintiff sued defendant for the balance of the pur- chase price of a refrigerator and to foreclose a lien thereon. The defendant filed a plea in abatement to COUNSEL: Graves & Collins, [***2] of Fort Worth, plaintiff's suit, on the ground that plaintiff [***3] was a for plaintiff in error. foreign corporation without a permit to do business in Texas. The defendant also filed a cross-action to cancel Page 2 136 Tex. 296, *; 150 S.W.2d 377, **; 1941 Tex. LEXIS 334, ***

plaintiff's debt and lien, and for judgment for the sum of Bank v. Derden, 36 S.W. (2d) 295; Rouser v. Hogue, 189 $469.62, representing that part of the purchase price of S.W. 349; Nunez v. McElroy, 184 S.W. 531; Partridge v. the refrigerator previously paid by him, and the sum of Wooton, 137 S.W. 412; Brown v. Wofford, 167 S.W. 764; $59.78 damages for merchandise lost for lack of proper Nalle v. Harrell, 118 Texas 149, 12 S.W. (2d) 550. refrigeration. The trial judge announced that he would The appeal in this case was from an order entered on hear the plea in abatement and the merits of the case to- July 26, 1939. We find among the papers in the case a gether. After the jury had returned its verdict the court supplemental transcript in which it is recited that on No- sustained the plea in abatement and dismissed plaintiff's vember 6, 1939, at a subsequent term of court, the court suit. The judgment in no wise referred to or attempted entered a nunc pro tunc order in which the previous to dispose of defendant's cross-action. Plaintiff appealed. judgment of date July 26, 1939, was withdrawn and a It is a well settled rule in Texas, with certain statu- new judgment entered dismissing plaintiff's suit and tory exceptions not here involved, that an appeal will lie denying defendant any recovery on his cross-action. only from a final judgment, and that a judgment in order However, the appeal in this case was not from the nunc to be final must dispose of all parties and of all issues pro tunc order [***6] of date November 6, 1939. The involved in the suit. [**378] 3 Tex. Jur. 114. It is appeal bond was filed on August 17, 1939, long before not essential that the judgment in express [*298] terms the entry of the nunc pro [*299] tunc order, and recites specifically dispose of each issue. That it does dispose that the appeal was taken from the judgment of date July of a particular issue may be inferred from other provi- 26, 1939. sions thereof, provided such an inference follows [***4] It is well settled in this State that when a judgment is as a necessary implication. Trammell v. Rosen, 106 Tex- pronounced at one term and not entered of record at that as 132, 157 S.W. 1161. The judgment in this case does term but is entered nunc pro tunc at the succeeding term, not expressly dispose of the defendant's cross-action, nor the right of appeal from such nunc pro tunc order dates does it do so by necessary implication. The mere dismis- from the entry thereof. Peurifoy v. Wiebusch, 125 Texas sal of plaintiff's suit did not have the effect of dismissing 207, 82 S.W. (2d), p. 624, par. 1, and authorities there or otherwise disposing of the defendant's cross-action. cited; Partridge v. Wooton, 137 S.W. 412, 414. It is also Barrier v. Lowery, 118 Texas 227, 13 S.W. (2d) 688, par. well settled that an appeal bond field at a previous term 1; Texas & P.R. Co. v. Fort Worth Street Ry. co., 75 of court, and prior to the entry of the nunc pro tunc order Texas 82, 12 S.W. 977; Jasper v. Mays Manufacturing at a subsequent term of court, is premature and ineffec- Co., 139 S.W. (2d) 895; Jungbecker v. Huber, 101 Texas tive to perfect an appeal from such nunc pro tunc order. 148, 105 S.W. 487; 15 Tex. Jur. 291. This is so because Cooper v. Carter, 233 S.W. 1020; Burnette v. Miracle, if the court had intended to merely sustain the plea in 295 S.W. 214; Gilmore v. Ladell, 34 S.W. (2d) 919; Stin- abatement and dismiss plaintiff's suit, and had intended nett v. Dudley, 277 S.W. 801; Shields v. Amicable Life to retain the defendant's cross-action for further consid- Insurance Co., 287 S.W. 293; Panhandle Construction eration, it would have entered the very judgment that was Co. v. Lindsey, 123 Texas 613, 72 S.W. (2d) 1068; Texas entered in this case. The mere failure of the judgment to & N.O.R. Co. v. Texas Tram & Lumber Co., 110 S.W., p. refer to defendant's cross-action was not sufficient in 140, par. 1. Consequently it [***7] cannot be said that itself to raise an infrerence that it was thereby intended to the appeal in this case was from the nunc pro tunc order dispose of the cross-action. In other words, where the of date November 6th, in which the defendant's court dismisses plaintiff's suit, and does not refer to or cross-action was for the first time disposed of. mention the defendant's cross-action, the judgment does not dispose [***5] of the cross-action expressly or by Since the judgment sought to be appealed from did implication, and is therefore not such a final judgment as not dispose of the defendant's cross-action, and was will authorize an appeal therefrom. 3 Tex. Jur., p. 121, therefore not a final judgment, the Court of Civil Ap- sec. 58; 4 C.J.S., p. 190, sec. 95; Southern Trading Co. of peals acquired no jurisdiction of the appeal. Texas v. Feldman (Com. App.), 259 S.W., p. 566, par. 2; The judgment of the Court of Civil Appeals is re- American Road-Mach. Co. v. City of Crockett, 49 S.W. 251; Anderson, Evans & Evans v. Smith, 167 S.W. 765; versed, and the appeal is dismissed. Minnock v. Garrison, 144 S.W. (2d) 328; National Radio Opinion delivered April 9, 1941. Exchange v. Calhoun, 52 S.W. (2d) 946; Kosse National | | Neutral As of: April 7, 2015 5:38 PM EDT

Day v. Tripp Court of Appeals of Texas, Third District, Austin July 29, 1999, Filed NO. 03-97-00480-CV

Reporter 1999 Tex. App. LEXIS 5550; 1999 WL 546869

Jim and Delores Day, Appellants v. Mary Tripp, Fred Because appellants were operating a rifle range, Jones, Lloyd Adams, David Ward and Catherine Ward, appellee neighbors brought suit for creation of a private Appellees nuisance, trespass, and invasion of privacy. A jury awarded appellees damages, and the trial court denied Notice: [*1] PURSUANT TO THE TEXAS RULES OF remittitur. On appeal by appellants and one cross-point APPELLATE PROCEDURE, UNPUBLISHED by appellees, the court affirmed with respect to the OPINIONS SHALL NOT BE CITED AS AUTHORITY damages for operating a private nuisance because the BY COUNSEL OR BY A COURT. charge submitted to the jury included personal injury as well as property damage. The court reversed with Subsequent History: Motion to Increase Depoist in respect to the trespass damages because there was no Lieu of Supersedeas Bond Dismissed as Moot March 9, evidence conforming to the proper measure of these 2000. damages. The court reversed with respect to the damage award for the invasion of privacy claim to avoid Prior History: FROM THE DISTRICT COURT OF double recovery with the private nuisance award. The TRAVIS COUNTY, 167TH JUDICIAL DISTRICT. NO. trial court did not abuse its discretion in denying remittitur 94-00122, HONORABLE SUZANNE COVINGTON, to appellants or in denying appellees a permanent JUDGE PRESIDING. injunction. Appellees were not entitled to an injunction merely because the rifle range amounted to a nuisance. Disposition: Affirmed in Part; Reversed and Rendered Appellees' claims for nuisance and invasion of privacy in Part. were not barred by Tex. Gov't Code Ann. § 250.001(c), because the bar was predicated on the existence of a Core Terms local government ordinance, not on the non-existence of an ordinance. appellees, Days, damages, nuisance, trespass, invasion, trial court, privacy, discomfort, measure of Outcome damages, cause of action, market value, annoyance, shooting range, noise, permanent injunction, injury to The court reversed the trial court's judgment insofar as property, use and enjoyment, personal injury, property it awarded damages for trespass and invasion of privacy damage, no evidence, properties, complain, amounts because appellees presented no evidence of the measure of damages for trespass and the nuisance Case Summary damages encompassed the invasion of privacy damages. The court overruled appellees' cross-point because the trial court did not abuse its discretion by Procedural Posture refusing their application for a permanent injunction. Appellants sought review of a judgment from the District Court of Travis County, 167th Judicial District (Texas), LexisNexis® Headnotes in favor of appellees in appellees' action for creating a private nuisance, trespass, and invasion of privacy. Real Property Law > Torts > Nuisance > General Overview Appellees brought a cross-point. Real Property Law > ... > Nuisance > Types of Nuisances > Overview Private Nuisances 1999 Tex. App. LEXIS 5550, *1

HN2 A private nuisance is a nontrespassory invasion of Real Property Law > ... > Remedies > Damages > another's interest in the private use or enjoyment of Measurement of Damages land. If the invasion is unintentional, it is actionable if Real Property Law > ... > Damages > Types of Damages > caused by conduct that is negligent or reckless, or Compensatory Damages results from other conduct that is culpable because Torts > ... > Types of Damages > Property Damages > abnormal and out of place in its surroundings. If the Measurements invasion is intentional, liability depends upon whether the invasion is unreasonable. An invasion is intentional HN3 In a nuisance action, a plaintiff may allege, prove, if (1) the actor acts for the purpose of causing it, or (2) and recover damages for a personal injury caused by the actor knows that it is resulting or is substantially the nuisance, such as discomfort, annoyance, and injury certain to result from his conduct. to health. The plaintiff may recover damages for discomfort and annoyance even absent depreciation of Civil Procedure > Judgments > Pretrial Judgments > the real property caused by the nuisance. The measure General Overview of damages for discomfort and annoyance is the amount Real Property Law > Torts > General Overview of money necessary to provide the plaintiff reasonable and fair compensation for such personal injury. Real Property Law > Torts > Nuisance > General Overview Real Property Law > ... > Remedies > Damages > General Civil Procedure > ... > Jury Trials > Jury Instructions > Overview General Overview Real Property Law > ... > Remedies > Damages > Torts > Remedies > Damages > General Overview Measurement of Damages Real Property Law > ... > Nuisance > Types of Nuisances > HN4 Concerning damages, the trial court is authorized Private Nuisances to submit to the jury only those elements of damages for which evidence was introduced. Torts > Remedies > Damages > General Overview Torts > ... > Types of Damages > Property Damages > Real Property Law > Torts > Trespass to Real Property Measurements Torts > Premises & Property Liability > Trespass to Real Property > General Overview HN1 On a cause of action for private nuisance, a plaintiff is entitled to recover damages, if proved, for Torts > Premises & Property Liability > Trespass to Real either or both of two kinds of injury. The first is a Property > Elements plaintiff's right to recover damages for any interference HN5 The elements of a cause of action for trespass are: with the owner's use and enjoyment of the property (1) an intentional (2) entry on land (3) in the possession caused by the nuisance. In legal contemplation, this of another. amounts to an injury to the plaintiff's property. The attendant measure of damages is the depreciation, if Real Property Law > Torts > General Overview any, in the market value of the plaintiff's property caused by the nuisance. This is determined ordinarily by the Real Property Law > Torts > Trespass to Real Property difference in market values immediately before and Torts > Remedies > Damages > General Overview immediately after the injury occurred, if the injury is Torts > ... > Compensatory Damages > Types of Losses > permanent, considering any use that may be made of Permanent Injuries the land. Such an injury to the plaintiff's use and enjoyment of the property is not itself a personal injury. Torts > Premises & Property Liability > Trespass to Real Property > General Overview Real Property Law > Torts > General Overview Torts > ... > Trespass to Real Property > Remedies > General Overview Real Property Law > Torts > Nuisance > General Overview Torts > ... > Remedies > Damages > General Overview Real Property Law > Torts > Nuisance > Elements Torts > ... > Remedies > Damages > Measurement of Real Property Law > ... > Nuisance > Remedies > General Damages Overview Real Property Law > ... > Remedies > Damages > General HN6 The damages recoverable for trespass are various, Overview but where the suit is for permanent injury to land, the Page 2 of 8 1999 Tex. App. LEXIS 5550, *1

measure of damages is the difference in market value adjacent to tracts of land owned by appellees and upon of the land immediately before and immediately after which they have built homes. Contending that daily the trespass. gunfire on the range shook the walls and windows of their homes, that hundreds of bullets from the range Governments > Local Governments > Claims By & Against entered their properties, and that they were otherwise Real Property Law > Torts > Nuisance > General Overview affected adversely by the Days' operation of the range, appellees sued the Days on various causes of action HN7 Tex. Gov't Code Ann. § 250.001(c) declares as discussed below. Following a jury trial, appellees follows: A person may not bring a nuisance or similar recovered judgment on the verdict in the following cause of action against a sport shooting range based on amounts and on the actions indicated: noise if the sport shooting range is in compliance with all applicable municipal and county ordinances, orders, Appellee Nuisance Trespass Invasion of Totals and rules regulating noise. Privacy Real Property Law > Torts > Nuisance > General Overview Fred Jones $ 25,000 $ 500 $ 500 $ 26,000 HN8 By its express terms, the statutory bar of Tex. Gov't Lloyd Adams 30,000 -0- 1,000 31,000 Code Ann. § 250.001(c) is predicated on the applicability and, therefore, the existence of a local-government Mary Tripp 10,000 -0- -0- 10,000 ordinance, order, or rule, rather than the non-existence of such an enactment. David and Catherine

Judges: Before Chief Justice Aboussie, Justices Kidd Ward 16,000 4,000 500 20,500 and Powers * Totals $ 81,000 $ 4,500 $ 2,000 $ 87,500 Opinion by: MARILYN ABOUSSIE The Days appeal on the issues discussed hereafter.

Opinion NUISANCE Jim Day and Delores Day appeal from a judgment The appellees alleged and recovered judgment on their recovered against them by appellees Mary Tripp, Fred pleadings that the Days' operation of the range Jones, Lloyd Adams, 1 David Ward, and Catherine amounted to a private nuisance. 2 HN1 On that cause of Ward. We will reverse the judgment in part, render action, appellees were entitled to recover damages, judgment in the part reversed, and affirm the balance of [*3] if proved, for either or both of two kinds of injury. the judgment. The first is a plaintiff's right to recover damages for any THE CONTROVERSY interference with the owner's use and enjoyment of the property caused by the nuisance. In legal contemplation, [*2] The Days have, since December 1993, owned and this amounts to an injury to the plaintiff's property. The operated a rifle and pistol range on seventeen acres attendant measure of damages is the depreciation, if

* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1 Lloyd Adams died after the appeal was perfected. We will "adjudicate the appeal as if all parties were alive." Tex. R. App. P. 7.1(a). 2 HN2 A private nuisance is a nontrespassory invasion of another's interest in the private use or enjoyment of land. If the invasion is unintentional, it is actionable if caused by conduct that is negligent or reckless, or results from other conduct that is culpable because abnormal and out of place in its surroundings. If the invasion is intentional, liability depends upon whether the invasion is unreasonable. An invasion is intentional if (1) the actor acts for the purpose of causing it, or (2) the actor knows that it is resulting or is substantially certain to result from his conduct. See City of Princeton v. Abbott, 792 S.W.2d 161, 166 (Tex. App.--Dallas 1990, writ denied) (op. on reh'g); City of Texarkana v. Taylor, 490 S.W.2d 191, 194 (Tex. Civ. App.--Texarkana 1972, writ ref'd n.r.e.); Restatement (Second) of Torts § 825 (1965). Page 3 of 8 1999 Tex. App. LEXIS 5550, *3

any, in the market value of the plaintiff's property caused market values immediately before and after the injury by the nuisance. This is determined ordinarily by the caused by the nuisance; and because the evidence is difference in market values immediately before and legally or factually insufficient to establish such market immediately after the injury occurred, if the injury is values, the nuisance damages found in response to permanent, considering any use that may be made of Jury Question Number Two must be set aside. It appears the land. Such an injury to the plaintiff's use and to be undisputed that such market values are not shown enjoyment of the property is not itself a "personal injury." in the evidence. We disagree, however, with the Days' See Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984); predicate that Jury Question Number Two [*6] submitted Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978); City only the issue of property damage. of Abilene v. Downs, 367 S.W.2d 153, 160-61 (Tex. 1963); Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 Jury Question Number Two may be understood only in S.W.2d 440, 441-42 (Tex. 1951). light of Jury Question Number One. The jury was asked and responded as follows regarding the two questions: [*4] HN3 JURY QUESTION NO. 1 In the same nuisance action, however, the plaintiff may also allege, prove, and recover damages for a personal Do you find that the shooting range is a "nuisance?" injury caused by the nuisance, such as discomfort, annoyance, and injury to health. See, e.g., Vann v. Answer: Yes or No. [The jury answered "yes."] Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 563 You are instructed that a "Nuisance" is a condition that (Tex. 1936) ("impairment of health and bodily substantially interferes with the use and enjoyment of discomfort"); Daniel v. Fort Worth & Rio Grande Ry. Co., land by causing unreasonable discomfort or annoyance 96 Tex. 327, 72 S.W. 578, 579 (Tex. 1903) ("personally to persons of ordinary sensibilities attempting to use annoyed and discomforted"); Cain v. Rust Indus. and enjoy it. Cleaning Servs., 969 S.W.2d 464, 470 (Tex. App.--Texarkana 1998, pet. denied) ("annoyance and *** discomfiture"); Lacy Feed Co. v. Parrish, 517 S.W.2d 845, 850 (Tex. Civ. App.--Waco 1974, writ ref'd n.r.e.) JURY QUESTION NO. 2 ("offensive, discomforting and annoying to persons of ordinary sensibilities"). See generally Batemen, What sum of money, if paid now in cash, . . . would fairly Annotation, Nuisance As Entitling Owner Occupant Of and reasonably compensate the following for his or her Real Estate To Recover Damages For Personal losses, if any, resulting from the nuisance from the date Inconvenience, Discomfort, Annoyance, Anguish, Or of December 17, 1993 to present: Sickness, Distinct From Or In Addition To, Damages for Depreciation In Value Of Property Or Its Use, 25 A.L.R. Fred Jones [$ 25,000] 5th 568 (1994). The plaintiff may recover damages for Lloyd Adams [$ 30,000] discomfort and annoyance [*5] even absent depreciation of the real property caused by the Mary Tripp [$ 10,000] nuisance. See Vann, 90 S.W.2d at 563; Chandler v. City of Olney, 126 Tex. 230, 87 S.W.2d 250, 251 (Tex. David Ward and Catherine Ward [$ 16,000] 1935); Daniel, 72 S.W. at 579. The measure of damages for discomfort and annoyance is the amount of money You are instructed that damage to the property of necessary to provide the plaintiff reasonable and fair Plaintiffs includes reduction in value as well as loss of compensation for such personal injury. Daniel, 72 S.W. the use and enjoyment of the property. at 579. (Emphasis added.) On the face of the foregoing, it is In their first issue on appeal, the Days contend the obvious that appellees' allegations of [*7] discomfort evidence is legally or factually insufficient to support the and annoyance--or personal injury--were incorporated nuisance damages found by the jury in answer to Jury in the definition of "nuisance" given in Jury Question Question Number Two. The Days argue a theory that Number One, together with the allegation of interference Jury Question Number Two submitted only the issue of with their use and enjoyment of their property--or injury property damage, measurable by the difference in to property. And Jury Question Number Two, conditioned Page 4 of 8 1999 Tex. App. LEXIS 5550, *7

on a "yes" answer to Jury Question Number One, asked answer to Jury Question Number Three, which asked the jury to determine the amount of money necessary to [*9] the jury whether Jim Day or Delores Day fairly and reasonably compensate the appellees for trespassed on the property of Fred Jones and David both kinds of injury, if any, caused by the nuisance. This and Catherine Ward. We need not discuss the point is an accepted method for submitting to the jury both because we will sustain the Days' second assignment kinds of injury--personal injury and injury to property. of error concerning the award of damages for trespass. See Lacy Feed Co., 517 S.W.2d at 850-51; Meat Therein, they point out correctly that there is no evidence Producers, Inc. v. McFarland, 476 S.W.2d 406, 410-11 conforming to the measure of damages that governed (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.). the issue.

We should add that the trial court was obliged to submit [*10] In Jury Question Number Four, the jury was asked to the jury the questions, instructions, and definitions and responded as follows: raised by the evidence. Tex. R. Civ. P. 278. HN4 Concerning damages, the trial court was authorized to JURY QUESTION NO. 4 submit only those elements of damages for which What sum of money paid now in cash, do you find would evidence was introduced. See 4 Texas Civil Practice § fairly and reasonably compensate the following for 22:33[b], at 241-42 (Diane M. Allen et al. eds., 1992 his/her losses, if any, resulting from Defendants' ed.). Thus, the [*8] Days' theory is inherently doubtful trespass: because it argues that the trial court in the present case submitted a single element of damages for which no Fred Jones [$ 500] evidence was introduced (property damage) while neglecting to submit the only element for which evidence Mary Tripp [- 0 -] was introduced (personal-injury damages). In any event, the Days did not object to Jury Question Number Two David and Catherine Ward [$ 4,000] on the ground that it was not justified by the evidence. You are instructed that: We therefore reject the Days' contention that the charge submitted to the jury only the issue of property damages. the measure of damages is the difference in the market The Days do not contend that the evidence supporting value of the land before and after the trespass. personal-injury damages is legally or factually insufficient; and, as pointed out above, these are In our discussion of appellees' cause of action for recoverable irrespective of any injury to property. nuisance, we pointed out that it is undisputed that the Presumably then, the amounts found by the jury in Jury appellees' introduced no evidence tending to prove the Question Number Two are based on evidence of market value of their properties immediately before and personal injury. The contrary is not shown. immediately after any injury to property.

We hold accordingly and overrule the Days' first The appellees point to evidence introduced by them assignment of error. which tended to prove the differing market values of the property with and without the nuisance, the measure of TRESPASS damages for temporary injury to property. See Sherman Gas & Elec. Co. v. Belden, 103 Tex. 59, 123 S.W. 119, The Days direct two assignments of error at the award 121 (Tex. 1909); Meat Producers, 476 S.W.2d at 413. of damages for trespass. 3 In the first, they complain We therefore do not understand the applicability of there was no evidence to support the jury's affirmative these decisions. Appellees did not object to the [*11]

3 HN5 The elements of a cause of action for trespass are: (1) an intentional (2) entry on land (3) in the possession of another. Restatement (Second) of Torts § 158 (1965). See First City Nat'l Bank v. Japhet, 390 S.W.2d 70, 74-75 (Tex. Civ. App.--Houston 1965, writ denied). HN6 The damages recoverable for trespass are various, but where the suit is for permanent injury to land, the measure of damages is the difference in market value of the land immediately before and immediately after the trespass. See Uvalde County v. Barrier, 710 S.W.2d 740, 743-44 (Tex. App.--San Antonio 1986, no writ). Here, the entry of appellees' properties was alleged to be effected by bullets coming to rest on their properties. The resulting injury was alleged to be an interference with the appellees' use and enjoyment of their properties. Page 5 of 8 1999 Tex. App. LEXIS 5550, *11

instruction fixing the measure of damages for trespass, David Ward [- 0 - ] given in Jury Question Number Four. This instruction fixed the measure of damages as the difference in Catherine Ward [$ 500] market value before and after the trespass. However Appellees did not object to the form of submission of erroneous this may be in light of the evidence and Jury Question Number Six. pleadings, the jury was bound by the instruction. We are required to judge the sufficiency of the evidence by that The Days contend the evidence is legally or factually measure, and we find no evidence of such values. See insufficient to support the jury findings in response to Tex. R. App. P. 33.1; 4 Texas Civil Practice § 22.22[b], at Jury Questions Number Five and Six. We will 275. summarize the relevant evidence.

We will therefore reverse the judgment insofar as it Fred Jones testified that the constant discharge of awards damages for trespass and render judgment that large-caliber rifles at the shooting range [*13] interfered the appellees take nothing by that cause of action. with his ability to carry on a conversation on his patio and with his ability to hear his television set while inside INVASION OF PRIVACY his home. Lloyd Adams testified that the shooting began about eight or ten o'clock in the morning and continued In answer to Jury Question Number Five, the jury found until nine o'clock at night, although he occasionally that Jim Day or Delores Day had "intruded upon the heard shooting until midnight or after, and that the noise privacy of" Fred Jones, Lloyd Adams, and Catherine interfered with his sleeping. Catherine Ward testified Ward. The question was submitted with the following that the shooting occurred seven days a week and instruction: interfered with her ability to carry on a conversation or hear the television set inside her home. All three It is an "Intrusion upon a person's privacy" if another concluded that the noise invaded their privacy. person wrongfully intrudes into the private activities of such person in a manner which would outrage or cause We believe the foregoing evidence may not be mental suffering, shame, or humiliation to a person of considered in judging the sufficiency of the evidence ordinary sensibilities. Mental suffering is more than with regard to the appellees' action for invasion of [*12] disappointment, anger, resentment, or privacy. Any injuries implicit in such evidence were, in embarrassment, although it may include all of these our view, encompassed in the jury's award of elements. It includes a mental sensation of pain resulting personal-injury damages in answer to Jury Question from such painful emotion as grief, severe Number Two and would amount to a double recovery disappointment, indignation, wounded pride, shame, for the same injuries if allowed also under Jury Question despair and/or public humiliation. Number Six. We do not see how the described effects of the invasion of appellees' privacy are distinguishable Appellees did not object to the instruction. from the annoyance and discomfort resulting from the nuisance. [*14] Without other evidence, the body of In Jury Question Number Six, the jury was asked and evidence will not support the jury award of damages for responded as follows: invasion of privacy found in Jury Question Number Six. We hold accordingly. What sum of money would fairly and reasonably compensate the following for the damages suffered due We therefore reverse the judgment insofar as it awards to the intrusion of [sic] privacy? In answering this damages for invasion of privacy. We render judgment question you shall take into account the following that the appellees take nothing by that action. elements of damage and none other: (1) mental suffering; and (2) physical pain. EXCESSIVE DAMAGES

Fred Jones [$ 500] The Days assign as error the trial court's refusal to order a remittitur based on their contention that certain Lloyd Adams [$ 1,000] amounts awarded by the jury were grossly excessive. We conclude the trial court did not abuse its discretion Mary Tripp [- 0 - ] for the reasons that follow. Page 6 of 8 1999 Tex. App. LEXIS 5550, *14

The Days complain first that the $ 30,000 awarded Fred local-government ordinance, order, or rule, rather than Jones for injury to his land, by reason of the nuisance, the non-existence of such an enactment. Moreover, the exceeded the $ 28,645 fixed by appellees' Days' reasoning is unacceptable: the absence of such property-appraisal witness as the amount of his an enactment does not necessarily reflect a decision; it damages. We overrule the contention because the reflects only inaction. We overrule the Days' contention. entire $ 30,000 could permissibly include under the charge sums awarded for personal injury as discussed CROSS APPEAL above. This element of damages, as pointed out previously, is not assailed on appeal. In a single cross-point, appellees complain that the trial court abused its discretion by refusing their application The Days complain next that the $ 1,000 awarded Fred for a permanent injunction against future shooting on Jones for trespass and invasion-of-privacy damages, the Days' range. 4 and the $ 4,500 awarded David and Catherine Ward for [*15] the same torts, are excessive because they are [*17] After the verdict in July 1996, which determined not supported by the evidence and were fully that the Days' operation of the range amounted to a encompassed within the damages awarded for private nuisance, the trial court issued on the appellees' nuisance. We have previously reversed these awards application a temporary restraining order prohibiting the and need not consider this aspect of the Days' complaint discharge of firearms at the range. Thereafter, the trial of excessive damages. court held a hearing on appellees' application for a permanent injunction, and denied such relief in the STATUTORY BAR court's final judgment signed April 14, 1997. We cannot tell from the record whether an evidentiary hearing was In their sixth issue, the Days complain that the trial court held on the application for permanent injunction. The erred in failing to hold the appellees' nuisance and appellees have not informed us in that regard; the Days invasion-of-privacy actions barred by reason of Texas contend that a hearing of that kind was held. In all Local Government Code section 250.001(c). HN7 The events, no transcript of such a hearing appears in the statute declares as follows: appellate record.

A person may not bring a nuisance or similar cause of The appellees were not entitled to a permanent action against a sport shooting range based on noise if injunction as a matter of right based simply on a the sport shooting range is in compliance with all judgment which establishes that the Days' operation of applicable municipal and county ordinances, orders, the range amounts to a nuisance. See Storey v. Central and rules regulating noise. Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615, 618 (Tex. 1950). And in the absence of a record Tex. Gov't Code Ann. § 250.001(c) (West Supp. 1999) demonstrating that the trial court abused its discretion (emphasis added). Because no municipal or county in some particular by refusing the appellees' application ordinance, order, or rule regulating noise applied to the for a permanent injunction, we [*18] cannot hold that the Days' shooting range, the trial court evidently court did so. We therefore overrule appellees' determined that the statute did not constitute a bar to cross-point. See Phaup v. Boswell, 731 S.W.2d 625, the appellees' causes of action. 627 (Tex. App.--Houston [1st Dist.] 1987, no writ); 6 Texas Civil Practice § 48.3, at 1222-24 (1998). The Days argue that the trial court misconstrued the statute--if [*16] a municipality or county decides not to For the reasons given, we reverse the trial-court regulate noise, then a shooting range is necessarily in judgment insofar as it awards damages for trespass compliance with that decision. The statutory language and invasion of privacy. We render judgment that will not reasonably bear the Days' interpretation. HN8 appellees take nothing by those causes of action. We By its express terms, the statutory bar is predicated on affirm the balance of the judgment. See Tex. R. App. P. the applicability and therefore the existence of a 43.2 (c).

4 The appeal was perfected before September 1, 1997. Appellees were therefore allowed to bring their cross-point without perfecting their own appeal, pursuant to the former Texas Rules of Appellate Procedure. See 6 Texas Civil Practice § 13.5, at 374 (1998). Page 7 of 8 1999 Tex. App. LEXIS 5550, *18

Marilyn Aboussie, Chief Justice * Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Before Chief Justice Aboussie, Justices Kidd and Code Ann. § 74.003(b) (West 1998). Powers * Affirmed in Part; Reversed and Rendered in Part Filed: July 29, 1999

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Caution As of: Mar 30, 2015

Elsie Dezso, Appellant v. Paul Harwood, Appellee

NO. 03-95-00539-CV

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

926 S.W.2d 371; 1996 Tex. App. LEXIS 2560

June 26, 1996, Filed

SUBSEQUENT HISTORY: [**1] Motion for suit and she was not properly served with citation, as the Rehearing Overruled July 31, 1996. Released for Publi- citation did not include the name "Elsie Dezso." We will cation July 31, 1996. affirm the default judgment.

PRIOR HISTORY: FROM THE COUNTY BACKGROUND COURT OF AT LAW NO. 2 OF TRAVIS COUNTY. In his original petition, Harwood alleged that he en- NO.224,370, HONORABLE ORLINDA L. NARANJO, tered into a distributorship agreement with Elsie Dezso's JUDGE PRESIDING. son, Danny Dezso, and Danny's business, Christian This Opinion Substituted on Motion for Rehearing Symbols, acting [**2] for themselves and as authorized for Withdrawn Opinion of May 1, 1996, Previously Re- agents of Judi Dezso, Judi's Cupboard, Judi's Card and ported at: 1996 Tex. App. LEXIS 1707. Gift Shop and Christian Symbols. The agreement would have allowed Harwood to obtain display cases, jewelry DISPOSITION: Affirmed merchandise, and other products to be sold in Austin and surrounding areas. Additionally, the contract provided that Danny Dezso would assist in marketing the mer- JUDGES: Before Justices Powers, Jones and B. A. chandise. Harwood paid for the distributorship in part by Smith cash and in part by charging $ 3,905 on his credit cards through Judi's Cupboard and Judi's Card and Gift Shop. OPINION BY: Bea Ann Smith In February 1995, Harwood filed suit under the De- ceptive Trade Practices - Consumer Protection Act al- OPINION leging breach of warranty, breach of contract, and other misrepresentations with regard to the distributorship [*372] ON MOTION FOR REHEARING agreement. See Tex. Bus. & Com. Code Ann. §§ Our opinion of May 1, 1996 is withdrawn and this 17.41-19.47 (West 1987 & Supp. 1996). one is substituted in its place. Elsie Dezso operates Judi's Cupboard, Inc., also do- Elsie Dezso appeals by writ of error a default judg- ing business as Judi's Card and Gift Shop; she owns the ment rendered against her March 27, 1995 in favor of corporation with her [*373] husband and her two Paul Harwood. In four points of error, Elsie Dezso con- daughters. Danny Dezso operates a separate business tends that the trial court erred in rendering a default known as Christian Symbols. Danny is married to Judi judgment against her because she was not a party to the Dezso, who has no apparent connection with Elsie Page 2 926 S.W.2d 371, *; 1996 Tex. App. LEXIS 2560, **

Dezso's businesses and had no business dealings with was served, the default judgment cannot stand. Callan Mr. Harwood. [**3] 1 v. Bartlett Elec. Coop., 423 S.W.2d 149, 156 (Tex. Civ. App.--Austin 1968, writ ref'd n.r.e.); Thomas v. Cactus 1 Although Danny Dezso was a party in the Drilling Corp., 405 S.W.2d 214, 216 (Tex. Civ. original suit, the trial court severed the claims as App.--Austin 1966, no writ). In Thomas, this Court stat- to him. ed: Because Elsie Dezso's businesses are called "Judi's The principle of these cases is simple. Cupboard" and "Judi's Card and Gift Shop," Harwood If a person thought to be named A is sued mistakenly believed that the appropriate defendant in his and served under that name the judgment action was named Judi Dezso, when in fact her name was against him is valid even though his name Elsie Dezso. Accordingly, the original citation was is- is B. But if one has a cause of action sued to "Dezso, Judi Individually and DBA Judi's Cup- against a person with the same or similar board DBA Judi's Card & Gift Shop & DBA Christian name, service on the person against whom Symbols" without mention of Elsie Dezso. Attached to one has no cause of action will not sup- the citation was Harwood's original petition reciting his port a judgment against the one amenable DTPA claims. Although Harwood referred to Elsie to the cause of action asserted. Dezso as Judi Dezso in the petition, the petition explicit- ly listed all the DTPA complaints regarding his contrac- tual agreement with Elsie Dezso and her son. Elsie Id. Elsie Dezso seems to rely on Thomas and similar Dezso does not dispute that she was actually served with cases in arguing that when there are two separate persons the citation and the original petition. or corporations involved with the same or similar names, When Elsie Dezso failed to respond to the citation, the case [**6] is one of mistaken identity. However, Harwood obtained a default judgment against her. The these cases simply explain that when the incorrect de- default judgment [**4] refers to Elsie Dezso as "Judi fendant is served with citation, a default judgment Dezso, also known as Elsie Dezso, individually and do- against such incorrect defendant cannot extend to cover ing business as Christian Symbols, Judi's Cupboard and the correct defendant, even if their names are the same or Judi's Card and Gift Shop . . . ." Elsie Dezso filed a writ similar. of error seeking to overturn the default judgment. When the correct defendant is served under the DISCUSSION AND HOLDINGS wrong name the case is not one of misidentification but rather misnomer. Enserch Corp. v. Parker, 794 S.W.2d 2, By her four points of error, Elsie Dezso essentially 4-5 [*374] (Tex. 1990); Adams v. Consolidated Un- contends that the trial court erred in rendering a default derwriters, 133 Tex. 26, 124 S.W.2d 840, 841 (Tex. judgment against her, because her name did not appear 1939); West v. Johnson, 129 S.W.2d 811, 815 (Tex. Civ. on the citation. Elsie Dezso asserts that because she was App.--Fort Worth 1939, writ ref'd); Haley v. Young, 541 not an intended party to the suit the default judgment S.W.2d 217, 219 (Tex. Civ. App.--Houston 1976, no cannot stand. writ). The supreme court in Adams explained the mis- An appeal by writ of error directly attacks the de- nomer rule: fault judgment. McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex. 1965). In such an appeal "the question to be decid- ed is whether there is a lack of jurisdiction apparent on the face of the record which would vitiate the trial court's When a person intended to be sued is sued judgment." Id. Elsie Dezso basically argues that because and served by a wrong name, and such the name Elsie Dezso was not on the citation or plead- person falls to appear and plead such ings, she was not a party to the suit; thus, jurisdiction misnomer in abatement, and suffers would not be proper over her. In cases such as the one at judgment to be obtained, he is bound by hand, "it is essential that the record affirmatively show a such judgment, and in all future litigation strict compliance with the provided manner and mode he may be connected with such suit or [**5] of service of process." Id. The record in this case judgment by proper averments; and when indicates that Elsie Dezso did in fact receive service of such averments are made and proved, the process, although under a misnomer. party intended to be named in the judg- ment is affected [**7] or concluded to Elsie Dezso asserts that this is not a case of misno- the same extent that he would have been mer, but instead is a case of misidentification in which if he had been named and served by his the wrong defendant was served. If the wrong defendant true name. Page 3 926 S.W.2d 371, *; 1996 Tex. App. LEXIS 2560, **

Adams, 124 S.W.2d at 841. As the court in West stated, When an intended defendant is sued under "The test seems to be whether or not the right person was an incorrect name, jurisdiction is proper sued, and whether or not he was put on notice that he, after service on defendant under misno- and not some other person, had been sued." West, 129 mer, but it must be clear that no one was S.W.2d at 815. misled. Given the circumstances in this case, we believe that A misnomer of a defendant does not Elsie Dezso had adequate notice that she had been sued render a judgment based on personal ser- by Harwood. Although the citation did not refer to Elsie vice, even one by default, void, provided Dezso by her correct name, her corporation and its busi- the intention to sue the defendant actually ness names were on the citation. Additionally, the origi- served with citation is so evident from the nal petition expressly pointed out all of Harwood's com- pleadings and process that the defendant plaints regarding his dealings with Elsie Dezso, her son, could not have been misled. and the related businesses. Based on the allegations in the petition, Elsie Dezso knew that her daughter-in-law, Judi Dezso, was not in any way involved in the business Cockrell, 737 S.W.2d at 140 (citations omitted). In the dealings that formed the basis of Harwood's lawsuit. The circumstances [**9] of this case, Elsie Dezso could not allegations also made clear that Elsie Dezso's businesses, have been misled into believing that her daughter-in-law Judi's Cupboard and Judi's Card and Gift Shop, were was the intended defendant of Harwood's suit regarding involved in the transactions that were the subject of the distributorship. Harwood's suit. Further, Elsie Dezso testified at [**8] a It is apparent that Elsie Dezso was Harwood's in- hearing on her motion to set aside the default judgment tended defendant and was simply misnamed. Appellant that "since the store's name is Judi, a lot of people will was, therefore, a party to the suit who was properly call me Judi because . . . they think it is my name." served with citation, and there is no lack of jurisdiction Based on these factors, Elsie Dezso should have logically apparent on the face of the record. Accordingly, we concluded that Harwood intended to sue her and that he overrule all four points of error. had simply misnamed her. Having found no error, we affirm the default judg- Texas case law supports the principle that unless the ment. pleadings and citation actually mislead the misnamed defendant, a default judgment will not be rendered void. Bea Ann Smith, Justice Baker v. Charles, 746 S.W.2d 854, 855 (Tex. App.--Corpus Christi 1988, no writ); Cockrell v. Estevez, Before Justices Powers, Jones and B. A. Smith 737 S.W.2d 138, 140 (Tex. App.--San Antonio 1987, no Affirmed writ). The Cockrell court stated: Filed: June 26, 1996 Page 1

1 of 1 DOCUMENT

Analysis As of: Mar 30, 2015

FLUOR DANIEL, INC., Appellant, v. H.B. ZACHARY COMPANY, INC., Appellee.

NUMBERS 13-03-585-CV AND 13-03-586-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI

2005 Tex. App. LEXIS 8403

October 13, 2005, Memorandum Opinion Delivered October 13, 2005, Memorandum Opinion Filed

SUBSEQUENT HISTORY: [*1] appealable. That judgment denied all relief not specifi- Petition for review denied by Fluor Daniel, Inc. v. H.B. cally therein granted. Although appellant alleged that the Zachry Co., 2006 Tex. LEXIS 478 (Tex., May 19, 2006) declaratory judgment could not provide the basis for an award of attorney's fees, appellant was the party who PRIOR HISTORY: On appeal from the 94th Dis- first brought a declaratory judgment action. There was trict Court of Nueces County, Texas. more than a scintilla of evidence to support the attorney's Fluor Daniel, Inc. v. H. B. Zachry Co., 1 S.W.3d 166, fees award under Tex. Civ. Prac. & Rem. Code Ann. § 1999 Tex. App. LEXIS 5441 (Tex. App. Corpus Christi, 37.009 (1997). Appellee was the prevailing party in a 1999) declaratory judgment action, and the arbitration agree- ment between the parties specifically called for an award CASE SUMMARY: of attorney's fees when one party sought judicial relief. Moreover, appellee presented numerous invoices from counsel, which detailed the expenses appellee incurred in PROCEDURAL POSTURE: Appellant, a contributor defending and prosecuting its claims. to a settlement fund, sought review of an order of the 94th District Court of Nueces County (Texas), which OUTCOME: The court affirmed the trial court's judg- severed appellant's original claim for declaratory relief ment. against appellee, another contributor to the settlement fund, from appellee's counterclaim for attorney's fees and LexisNexis(R) Headnotes awarded attorney's fees to appellee.

OVERVIEW: In the underlying cause, the trial court interpreted an arbitration decision and required appellee Civil Procedure > Declaratory Judgment Actions > to contribute only 10 percent of the settlement fund. The General Overview court held that the record clearly indicated that the trial Civil Procedure > Remedies > Costs & Attorney Fees > court intended to dispose of all issues and parties in- General Overview volved in the claim for declaratory relief. The trial court [HN1] See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 severed the two causes of action, thereby making the (1997). judgment on the declaratory judgment claim final and Page 2 2005 Tex. App. LEXIS 8403, *

of an award of attorney's fees. In sum, when reviewing Civil Procedure > Pretrial Matters > Separate Trials an award of attorney's fees under the Act, the court of Civil Procedure > Appeals > Appellate Jurisdiction > appeals must determine whether the trial court abused its Final Judgment Rule discretion by awarding fees when there was insufficient [HN2] A judgment is final for purposes of appeal if it evidence that the fees were reasonable and necessary, or disposes of all pending parties and claims in the record, when the award was inequitable or unjust. except as necessary to carry out the decree. Whether a judicial decree is a final judgment must be determined from its language and the record in the case. Moreover, a Civil Procedure > Declaratory Judgment Actions > severance divides the lawsuit into two or more separate General Overview and independent causes. When this is done, a judgment Civil Procedure > Remedies > Costs & Attorney Fees > that disposes of all parties and issues in one of the sev- General Overview ered causes is final and appealable. [HN6] Under the Texas Declaratory Judgments Act of Tex. Civ. Prac. & Rem. Code Ann. ch. 37, a party does not have to prevail to be awarded attorney's fees. Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule COUNSEL: For APPELLANT: William N. Woolsey, [HN3] Finality must be resolved by a determination of LAW OFFICE of WILLIAM N WOOLSEY, P.C., Cor- the intention of the court as gathered from the language pus Christi, TX. of the decree and the record as a whole, aided on occa- sion by the conduct of the parties. For APPELLEE: James F. Buchanan, WELDER, LESHIN & MAHAFFEY, Corpus Christi, TX.

Civil Procedure > Declaratory Judgment Actions > JUDGES: Before Chief Justice Valdez and Justices Hi- State Judgments > Discretion nojosa and Rodriguez. Opinion by Chief Justice Valdez. Civil Procedure > Remedies > Costs & Attorney Fees > Attorney Expenses & Fees > Statutory Awards OPINION BY: Rogelio Valdez [HN4] Tex. Civ. Prac. & Rem. Code Ann. § 37.009 ex- plicitly states that the trial judge may award reasonable OPINION and necessary attorney's fees as are equitable and just for MEMORANDUM OPINION any proceeding brought under the Texas Declaratory Judgments Act of Tex. Civ. Prac. & Rem. Code Ann. ch. Opinion by Chief Justice Valdez 37. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (1997). This is an appeal from a trial court's order severing a Thus, the award of attorney's fees in a declaratory judg- ment action is entrusted to the discretion of the trial case and awarding attorney's fees in one of the two sev- court. In a declaratory judgment action, a successful de- ered causes of action. A thorough articulation of the un- derlying dispute between these parties, which triggered fendant may recover attorney's fees if the defendant so in part the current appeal, can be found in our opinion requests. reported at Fluor Daniel, Inc. v. H.B. Zachry, Co., 1 S.W.3d 166 (Tex. App.-Corpus Christi 1999, pet. denied). We affirm. Civil Procedure > Declaratory Judgment Actions > General Overview Civil Procedure > Remedies > Costs & Attorney Fees > FACTS Attorney Expenses & Fees > Reasonable Fees Essentially, this dispute arises from an action to Civil Procedure > Remedies > Costs & Attorney Fees > construe and enforce an arbitration award. Appellant, Attorney Expenses & Fees > Statutory Awards Fluor Daniel, Inc., and appellee, H.B. Zachry Company, [HN5] The standards for awarding attorney's fees pursu- Inc., were originally both named defendants in a lawsuit ant to the Texas Declaratory Judgments Act of Tex. Civ. brought by Arturo Ruiz against several defendants in Prac. & Rem. Code Ann. ch. 37 are that (1) the fees must 1992. 1 Ruiz was an employee of Citgo Petroleum Cor- be reasonable and necessary, which is a question of fact, poration when he fell and sustained debilitating injuries. and (2) the fees must be equitable and just, which is a Fluor, Zachry and a third-party [*2] entered into a set- matter of law. The trial court abuses its discretion if it tlement agreement with Ruiz and created a settlement awards attorney's fees arbitrarily, unreasonably, or with- fund. 2 Fluor initially contributed $ 800,000 to the fund out regard to guiding legal principals. Additionally, there and Zachry contributed $ 50,000. As part of the agree- must be supporting evidence in order to sustain a verdict ment, Fluor and Zachry agreed to arbitrate the compara- Page 3 2005 Tex. App. LEXIS 8403, *

tive responsibility and contribution between themselves. 4 The district court's order dismissing with 3 Fluor and Zachry presented their arguments before an prejudice certain claims, pursuant to the settle- arbitration panel, which apportioned liability as follows: ment agreement, specifically retained Zachry and Citgo, 80% liable; Fluor, 10% liable; and Zachry, 10% Fluor's contribution claims, subject to binding ar- liable. bitration. Fluor then sued Zachry in the United States District 1 Cause No. 92-1055-C, styled Arturo Ruiz v. Court for the Southern District of Texas. 5 This suit, H.B. Zachry Company, Fluor Daniel, Inc., Mun- however, was dismissed for want of jurisdiction pursuant dy Services Corp., and Brand Scaffold Builders, to the Rooker-Feldman doctrine. 6 Fluor, still seeking Inc. relief, next filed suit as Cause No. 97-3543-C in the same 2 The third-party is Mundy Industrial Mainte- Texas district court that rendered the initial judgment in nance, Inc. (incorrectly named by Ruiz as Mundy Cause No. 92-1055-C. 7 Zachry's answer raised, inter Service Corp.). Mundy contributed $ 50,000 to alia, the affirmative defenses of res judicata and collat- the settlement fund and both Fluor and Zachry eral estoppel. Zachry also filed a counterclaim in which agreed to release Mundy from further contribu- it asked the district court to declare that Fluor violated tion and indemnity. the agreement regarding arbitration, therefore, entitling 3 The agreement provided in relevant part: Zachry to attorney's fees. 8 Zachry also filed a motion for summary judgment asserting that res judicata and collat- The respected [sic] percentages eral estoppel precluded [*5] Fluor from recovering. The of liability, if any, of the parties in trial court granted the motion and Fluor appealed. We the total sum of the settlement reversed and remanded, holding that these doctrines were fund will be determined under this inapplicable because Fluor's suit was only asking the trial agreement, it being the intention court to give effect to a prior judgment and not reappor- of the parties that Zachry or Fluor tion liability. See Fluor, 1 S.W.3d at 169-70. Daniel or a third party or all or some of them be found liable to 5 Civil Action No. C-96-603, styled Fluor the extent of the total thereof. Daniel, Inc. v. H.B. Zachry Co., Inc. 6 The Rooker-Feldman doctrine is discussed in more detail in our previous opinion. See Fluor [*3] The determination of exactly what the per- Daniel, Inc. v. H.B. Zachry, Co., 1 S.W.3d 166, centage of liability apportionment meant, however, re- 168-69 (Tex. App.-Corpus Christi 1999, pet. de- sulted in the ensuing litigation. Fluor construed the arbi- nied). Essentially, we stated that "under the tration panel's decision to mean that since Citgo was Rooker-Feldman doctrine, federal district courts, statutorily shielded from liability, both Fluor and Zachry as courts of original jurisdiction, lack jurisdiction should contribute equally to the settlement fund because to review, modify, or nullify final orders of state they were found equally at fault. However, Zachry inter- courts." Id. at 168. preted the panel's ruling differently, believing that since 7 The basis of this petition was "to have the it was held to be only 10% at fault, it is responsible for Court construe the Arbitration Agreement be- providing only 10% of the settlement fund. The crux of tween these parties and its earlier judgment en- Zachry's belief is that the panel had the option of finding tered pursuant to such Agreement and declare the Citgo 100% percent liable, which would have yielded the meaning thereof in aid of enforcement of the status quo. The status quo would have been exactly what Judgment." Fluor conceded that the court's prior the parties tendered into the settlement fund prior to ar- judgment was final, binding, and unappealable bitration, with Fluor contributing $ 800,000 and Zachry under the terms of the agreement, but it asked the contributing $ 50,000. court to declare the prior judgment's actual dollar effect as to each party, due to the fact that the ar- Fluor sought judicial review of the panel's ruling. 4 bitration panel's decision apportioning liability First, Fluor attempted to have the district court modify, against Citgo was "inconsistent with Texas law" correct and confirm the arbitration panel's final award to as well as the settlement agreement between Flu- their interpretation. The district court denied the relief or and Zachry. Fluor sought and entered a final judgment in Cause No. [*6] 92-1055-C. No appeal from this judgment was taken; 8 Chapter 37 of the Texas Civil Practice and therefore, [*4] this became a final and unappealable Remedies Code, known as the Declaratory Judg- order. ments Act, provides that in any proceeding under the Act [HN1] "the court may award costs and Page 4 2005 Tex. App. LEXIS 8403, *

reasonable and necessary attorney's fees as are The Texas Supreme Court has stated that [HN2] "a equitable and just." TEX. CIV. PRAC. & REM. judgment is final for purposes of appeal if it disposes of CODE ANN. § 37.009 (Vernon 1997). all pending parties and claims in the record, except as necessary to carry out the decree." Lehmann v. On remand, the district court severed the claims into Har-Con Corp., 39 S.W.3d 191, 195, 44 Tex. Sup. Ct. J. two causes, Cause No. 97-3543-C (Fluor's original 364 (Tex. 2001) (citations omitted). "Whether a judicial claim) and 97-6119-C (Zachry's counterclaim for attor- decree is a final judgment must be determined from its ney's fees). Cause No. 97-3543-C proceeded to a bench language and the record in the case." Id. Moreover, "[a] trial in which the court rendered judgment in favor of severance divides the lawsuit into two or more separate Zachry on January 2, 2001. Fluor filed a timely motion and independent causes. When this is done, a judgment for new trial, which was overruled by operation of law, that disposes of all parties and issues in one of [*9] the and attempted to appeal the final judgment in Cause No. severed causes is final and appealable." Hall v. City of 97-3543-C. However, we dismissed that appeal for want Austin, 450 S.W.2d 836, 837-38, 13 Tex. Sup. Ct. J. 163 of jurisdiction, holding that Fluor did not timely file its (Tex. 1970) (emphasis added). notice of appeal pursuant to Texas Rule of Appellate Procedure 26.1. See Fluor Daniel, Inc. v. H.B. Zachry, The trial court severed the two causes of action on Co., No. 13-01-289-CV, 2001 Tex. App. LEXIS 3675 January 2, 2001, thereby making the judgment in Cause (Tex. App.-Corpus Christi [*7] May 24, 2001, no pet.) No. 97-3543-C final and appealable. The judgment for (not designated for publication). Cause No. 97-3543-C reads in pertinent part: Cause No. 97-6119-C (Zachry's claim for attorney's It is hereby ORDERED, ADJUDGED fees) then proceeded to a jury trial. The jury returned AND DECREED that the declaratory re- judgment in favor of Zachry and awarded it reasonable lief sought by H. B. Zachry Company, and necessary attorney's fees in the amount of $ 50,000 Inc. that its liability for contribution to for defending Cause No. 97-3543-C and for prosecuting Fluor Daniel, Inc. be limited to ten per- Cause No. 97-6119-C. The jury also held that if Cause cent (10%) of the total settlement fund as No. 97-6119-C were appealed to this Court, then the determined by the Arbitration Panel in its reasonable and necessary attorney's fees Zachry would Final Decision must be and it is hereby additionally incur on appeal would be $ 12,500. The dis- GRANTED. trict court subsequently rendered judgment on the ver- dict. The court entered its "Final Judgment" on July 3, ... 2003, according to the court's docket sheet; however, the IT IS ORDERED, ADJUDGED and date was not noted on the copy of the judgment. On July DECREED that the Counter-Claim of H. 30, 2003, Fluor filed a motion for new trial, and Zachry B. Zachry Company, Inc. for recovery of filed an "Unopposed Motion For Entry of Judgment attorney's fees be and the same is hereby Nunc Pro Tunc" seeking to have the nunc pro tunc severed from the claim of Fluor Daniel judgment date reflect the date of the final judgment. The Inc. and H. B. Zachry, Inc. and the Coun- court signed the nunc pro tunc judgment on July 31, ter-Claim of H. B. Zachry Company, Inc. 2003. Subsequently, Fluor filed an amended motion for against Fluor Daniel, Inc. as to which the new trial on August 12, 2003, and then it filed its notice Court has entered this Judgment, which of appeal for Cause No. 97-6119-C on September 30, Judgment is hereby made final; and 2003. In [*8] addition, and on the same day, Fluor filed another notice of appeal for Cause No. 97-3543-C. IT IS FURTHER ORDERED that the Clerk of the Court re-docket the pleadings FINALITY OF JUDGMENT of H. B. Zachry Company, Inc. asserting its claim for attorney's [*10] fees as We address Fluor's second issue which essentially Cause No. 97-6119-C in this Court in asserts that "the trial court erred in severing the attorney's such other manner as approved by the fees issue and rendering an ostensible final judgment in Court which will preserve such claims. Cause No. 97-3543-C." Fluor did not, however, present an argument regarding the propriety of the severance; All relief not specifically herein rather, Fluor avers that the judgment entered on January granted, is denied. 2, 2001 in Cause No. 97-3543-C was not final and it did not become final until Cause No. 97-6119-C made it final. Fluor's argument is wholly unfounded. Therefore, the record clearly indicates that the trial court intended to dispose of all issues and parties in- Page 5 2005 Tex. App. LEXIS 8403, *

volved in Cause No. 97-3543-C. Further, the parties writ). Having forced Zachry to defend against a declara- themselves understood this is what the trial court in- tory judgment action, Fluor may not now complain on tended. [HN3] "Finality 'must be resolved by a determi- appeal that a declaratory judgment was not a "proper nation of the intention of the court as gathered from the avenue" for this case. language of the decree and the record as a whole, aided Finally, Fluor alleges that the award itself was ineq- on occasion by the conduct of the parties.'" Lehmann, uitable. [HN4] Section 37.009 of the civil practice and 39 S.W.3d at 203 (quoting 5 RAY W. MCDONALD, remedies code explicitly states that the trial judge may TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Cov- [*13] award reasonable and necessary attorney's fees as ell, ed., 1992 ed.)). The record is patently clear from the are equitable and just for any proceeding brought under conduct of the trial judge and the parties that they in- the Texas Declaratory Judgments Act (hereinafter "Act") tended the January 2, 2001 final order in Cause No. of chapter 37 of the civil practice and remedies code. See 97-3543-C to be final and appealable. In fact, Fluor at- TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 tempted to appeal this judgment, albeit after the time for (Vernon 1997); Bocquet v. Herring, 972 S.W.2d 19, 20, appeal had expired. Fluor had its chance to appeal the 41 Tex. Sup. Ct. J. 650 (Tex. 1998). Thus, the award of final judgment of Cause No. 97-3543-C but failed to attorney's fees in a declaratory judgment action is en- abide by the rules. Fluor now seeks a second bite at the trusted to the discretion of the trial court. See Bocquet, apple by again bringing an appeal [*11] but disguising 972 S.W.2d at 20. In a declaratory judgment action, a it as an attack on the severance of the case. Accordingly, successful defendant may recover attorney's fees if the Fluor's issue on severance is overruled. defendant so requests. Id. ATTORNEY'S FEES [HN5] The standards for awarding attorney's fees We now turn to Fluor's issue regarding the award of pursuant to the Act are that (1) the fees must be reasona- attorney's fees. In its counterclaim, Zachry alleged that ble and necessary, which is a question of fact, and (2) the "as the prevailing party in a suit for declaratory judgment fees must be equitable and just, which is a matter of law. [Cause Number 97-3453-C] it would be just and equita- Id. at 21. The trial court abuses its discretion if it awards ble for . . . [it] to recover its reasonable and necessary attorney's fees arbitrarily, unreasonably, or without re- attorney's fees . . . pursuant to § 37.009, Texas Civil gard to guiding legal principals. Id. (citing Goode v. Practice and Remedies Code." Zachry alleged that it Shoukfeh, 943 S.W.2d 441, 446, 40 Tex. Sup. Ct. J. 487 incurred in excess of $ 150,000 in reasonable and neces- (Tex. 1997)). Additionally, there must be supporting ev- sary attorney's fees. 9 Fluor contends that the trial court idence in [*14] order to sustain a verdict of an award of should not have awarded attorney's fees in favor of attorney's fees. See id. (citing Beaumont Bank v. Buller, Zachry. Fluor raises several reasons for this assertion. 806 S.W.2d 223, 226, 34 Tex. Sup. Ct. J. 482 (Tex. 1991)). In sum, when reviewing an award of attorney's 9 The jury however awarded Zachry only $ fees under the Act, "the court of appeals must determine 50,000 for reasonable and necessary attorney's whether the trial court abused its discretion by awarding fees. fees when there was insufficient evidence that the fees were reasonable and necessary, or when the award was First, Fluor alleges that Zachry's reliance on section inequitable or unjust." Id. 38.001 of the civil practice and remedies code for its authority to recover attorney's [*12] fees "is flawed." In the present case, we find nothing to indicate that However, Zachry did not rely on Section 38.001; rather, the district court's awarding of attorney's fees to Zachry Zachry relies on chapter 37 of the civil practice and was unjust or inequitable, as there was ample evidence to remedies code and the agreement itself for its authority support the jury's determination that $ 50,000 in attor- enabling it to recover attorney's fees. ney's fees was reasonable and necessary. Zachry pre- sented numerous invoices from the Kleberg Law Firm, Next, Fluor alleges that "the declaratory judgment which represented Zachry in the matter. These invoices itself is not a proper avenue in this case and therefore detail the expenses Zachry incurred in defending and cannot provide the basis for [an award of] attorney's prosecuting these claims. The invoices show that the fees." However, Fluor is the party who first brought a Kleberg Law Firm billed Zachry for roughly $ 148,743 declaratory judgment action. Fluor's original petition for their legal services. Testimony at trial elucidated how specifically prays that the trial court "declare the dollar these fees were incurred. The jury determined that $ effect" of the arbitration award. No particular type of 50,000 was a reasonable award. There is certainly more pleading is required by the declaratory judgments act, but than a scintilla of evidence to [*15] support this award. it is clear that Fluor's suit was an action seeking declara- Zachry was the prevailing party in a declaratory judg- tory judgment. See, e.g., Anderson v. McRae, 495 ment action. Finally, section VI of the arbitration agree- S.W.2d 351, 358 (Tex. Civ. App.-Texarkana 1973, no ment between Fluor and Zachry specifically calls for an Page 6 2005 Tex. App. LEXIS 8403, *

award of attorney's fees when one party seeks judicial ter Cons. Dist., 925 S.W.2d 618, 637, 39 Tex. Sup. Ct. J. relief. Therefore, when reviewing the entire record, we 858 (Tex. 1996). Accordingly, Fluor's issue regarding the cannot say that the trial court abused its discretion in awarding of attorney's fees is overruled. awarding Zachry attorney's fees. CONCLUSION Lastly, Fluor attempts to assert that Zachry cannot recover its attorney's fees because it was not a prevailing Having overruled both of Fluor's issues on appeal, party. We conclude that Zachry did prevail in the under- we affirm the trial court's judgment severing the two lying cause because Zachry received what it requested, causes and awarding Zachry attorney's [*16] fees. that is, an interpretation of the arbitration decision which Rogelio Valdez, entitled it to contribute only 10% of the settlement fund. However, we also note that [HN6] under the Act a party Chief Justice does not have to prevail to be awarded attorney's fees. See, e.g., Barshop v. Medina County Underground Wa- | | Caution As of: April 7, 2015 5:40 PM EDT

Fresh Coat, Inc. v. Life Forms, Inc. Court of Appeals of Texas, First District, Houston December 31, 2003, Decided ; December 31, 2003, Opinion Issued NO. 01-03-00730-CV

Reporter 125 S.W.3d 765; 2003 Tex. App. LEXIS 10837; CCH Prod. Liab. Rep. P16,863

FRESH COAT, INC., Appellant v. LIFE FORMS, INC., fourth party petition alleging claims against the insulation Appellee company for common-law, contractual, and statutory indemnity. The builder then filed a motion for summary Subsequent History: [**1] judgment. In its motion for summary judgment, the 53.7(F) mot. for extension of time filed by, 02/09/2004 builder did not seek summary judgment on its 53.7(F) mot. for extension of time filed by, 03/19/2004 common-law and statutory indemnity claims. However, 53.7(F) mot. for extension of time filed by, 04/16/2004 the trial court granted the builder all of the relief the builder had requested and that the trial court was entitled Prior History: On Appeal from the 295th District Court. to give. Also, the judgment was a final and appealable Harris County, Texas. Trial Court Cause No. judgment because it clearly and unequivocally disposed 1998-25256-D. of all of the parties and the claims pending in the trial court. Thus, because the insulation company did not file Disposition: Motion to dismiss granted; appeal its notice of appeal within 30 days of the date the dismissed. judgment was signed, and did not seek an extension of its appellate deadlines, it did not timely perfect its appeal Core Terms and did not properly invoked the appellate court's jurisdiction.

trial court, parties, dispose, final judgment, lawsuit, Outcome summary judgment motion, indemnity, appealable judgment, pending claim, unequivocally, class-action The appellate court dismissed the insulation company's appeal for want of jurisdiction. Case Summary LexisNexis® Headnotes Procedural Posture Civil Procedure > Appeals > Appellate Jurisdiction > Final The 295th District Court, Harris County (Texas), granted Judgment Rule summary judgment in favor of appellee home builder on its claims against appellant insulation company for HN1 It is well-established that, in general, an appeal common-law indemnity, contractual indemnity, based may be taken only from a final judgment; that is, a on the provisions of the parties' contract, and statutory judgment that disposes of all pending parties and claims. indemnity, based on the builder's alleged status as an innocent retailer. The insulation company appealed. Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule Overview HN2 For purposes of an appeal, the intent to finally The builder asserted causes of action for alleged defects dispose of a case must be unequivocally expressed in in the design of residential and commercial exterior the words of the judgment itself. If that intent is clearly insulation finish systems. The builder asserted claims expressed in the judgment, then the order is final and for indemnity against the insulation company. In a appealable, even though the record does not provide severed cause, the builder filed a second amended an adequate basis for rendition of judgment. 125 S.W.3d 765, *765; 2003 Tex. App. LEXIS 10837, **1

Civil Procedure > Appeals > Appellate Jurisdiction > Final Opinion Judgment Rule

HN3 For purposes of determining whether a judgment [*766] Appellant, Fresh Coat, Inc. (Fresh Coat), is final and appealable, to determine whether an order challenges the trial court's rendition of summary disposes of all pending claims and parties, an appellate judgment in favor of appellee, Life Forms, Inc. (Life court may also look to the record from the court below. Forms). Prior to the submission of briefing on the merits by either party, Life Forms filed a motion with this Court Civil Procedure > Appeals > Appellate Jurisdiction > Final seeking to dismiss this appeal for want of jurisdiction. In Judgment Rule its motion to dismiss, Life Forms contends that Fresh Coat failed to timely appeal from the trial court's final HN4 In a judgment, the inclusion of the language "all judgment and that, as a result, this Court lacks relief not expressly granted is denied," standing alone, jurisdiction over this appeal. does not indicate finality in a judgment rendered without a conventional trial on the merits. We dismiss the appeal for want of jurisdiction.

Civil Procedure > Appeals > Appellate Jurisdiction > Final Procedural Background Judgment Rule

HN5 In determining whether a judgment is final, in a Fresh Coat and Life Forms were originally parties to a case in which an appellate court is uncertain about a class-action lawsuit pending in the trial court below. 1 trial court's intent in signing a judgment, the appellate The plaintiffs in that lawsuit asserted causes of action court may abate the appeal to permit clarification by the for alleged defects in the design of residential and trial court. commercial exterior insulation finish [**2] systems. Life Forms, a home builder, contracted with Fresh Coat to Civil Procedure > Appeals > Appellate Jurisdiction > have Fresh Coat construct and apply such finish Interlocutory Orders systems on Life Forms's homes. After it was made a party to the class-action lawsuit, Life Forms asserted HN6 An express adjudication of all parties and claims in a case is not interlocutory merely because the record claims for indemnity against Fresh Coat. does not afford a legal basis for the adjudication. In those circumstances, the order must be appealed and On October 30, 2002, the trial court signed an agreed reversed. order severing Life Forms's claims against Fresh Coat into the cause on appeal. 2 As part of its severance Counsel: FOR APPELLANT: Adam Brett Chambers, order, the trial court instructed the parties as follows: Bateman Pugh, P.L.L.C., Houston, TX. Kevin D. Jewell, "Life Forms and Freshcoat [sic] agree that their claims Chamberlain, Hrdlicka, White, Williams, & Martin, can be decided on the papers with Life Forms filing its Houston, TX. Robert H. Bateman, Magenheim, motion on or before 12/2/02 and Freshcoat [sic] filing its Bateman, Robinson, Wrotenbery & Helfand, Houston, response on or before 12/12/02." TX. [**3] In the severed cause, Life Forms subsequently FOR APPELLEE: Chris E. Ryman, Coats, Rose, yale, filed its "Second Amended Fourth Party Petition" Holm, Ryman & Lee, P.c., Houston, TX. alleging claims against Fresh Coat for (1) common-law indemnity; (2) contractual indemnity, based on the Judges: Terry Jennings, Justice. Panel consists of provisions of the parties' contract; and (3) statutory Chief Justice Radack and Justices Jennings and Higley. indemnity, based on Life Forms's alleged status as an

Opinion by: Terry Jennings

1 The original matter is styled McCray, et al. v. Parex, Inc., et al., No. 98-25256, in the 295th Judicial District Court of Harris County, Texas. 2 Fresh Coat did not present any affirmative claims for relief against Life Forms. Page 2 of 4 125 S.W.3d 765, *766; 2003 Tex. App. LEXIS 10837, **3

"innocent retailer." 3 Life Forms then filed a motion for Finality of the Judgment summary judgment arguing that, as a matter of law, under the provisions of the parties' contract, (1) Fresh In its motion to dismiss this appeal, Life Forms argues Coat was obligated to defend and indemnify Life Forms that the trial court's March 7, 2003 judgment was a final from the claims against it in the class-action lawsuit, (2) and appealable judgment because it clearly and Fresh Coat's obligation to indemnify Life Forms was unequivocally disposed of all parties and claims pending triggered by the claims brought against it in that lawsuit, in the trial court. Additionally, Life Forms argues that, to and (3) Fresh Coat was obligated to reimburse Life the extent the trial court's judgment granted more relief Forms for its attorney's fees and costs incurred, and than Life Forms was entitled to receive, the judgment settlements paid, as a result of that lawsuit. As exhibits was arguably erroneous, but final and appealable to its motion for summary judgment, Life Forms attached nonetheless. affidavits and other [*767] records documenting its claim for attorney's fees, costs, and settlements totaling HN1 It is well-established that, in general, an appeal $ 186,819.43 paid as a result of the claims brought may be taken only from a final judgment; that is, a against Life Forms in the class-action lawsuit and judgment that disposes [**6] of all pending parties and incurred in pursuit of its indemnity claims against Fresh claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, Coat. In its [**4] motion for summary judgment, Life 195, 44 Tex. Sup. Ct. J. 364 (Tex. 2001). HN2 The intent Forms did not seek summary judgment on its to finally dispose of the case must be unequivocally common-law and statutory indemnity claims. Fresh Coat expressed in the words of the judgment itself. Id. at 200. filed a response to the motion for summary judgment If that intent is clearly expressed in the judgment, then and disputed Life Forms's contractual indemnity claims. the order is final and appealable, even though the record does not provide an adequate basis for rendition On March 7, 2003, the trial court signed a "Final of judgment. Id. In Lehmann, the court conceded that, Judgment" which reads as follows: HN3 to determine whether an order disposes of all pending claims and parties, an appellate court may also The Court has considered and decided to grant Life look to the record from the court below. Id. at 205-06. Forms Incorporated's Motion for Summary Judgment. Life Forms Incorporated's Motion for Summary The judgment at issue here, entitled "Final Judgment," Judgment is granted. contains a "Mother Hubbard" clause, e.g., "All relief not expressly granted is denied." See id. at 203. The Texas It is ADJUDGED that Life Forms, Incorporated have Supreme Court has held that HN4 the inclusion of such and recover judgment against Fresh[]Coat, Inc. for $ language, standing alone, does not indicate finality in a 186,819.43, together with all costs of court and interest judgment rendered, as here, without a conventional trial on this judgment at the rate of ten percent (10%) per on the merits. Id. at 203-04. annum from the date of judgment until paid. This is a final judgment disposing of all parties and all issues. All The judgment also clearly states that it "is a final relief not expressly [**5] granted is denied. judgment disposing of all parties and all issues." Fresh Coat argues that this language is not [**7] an In June 2003, Fresh Coat filed a "Motion for Entry of unequivocal statement of finality, and in support of its Appealable Judgment" in which it argued that, because argument [*768] relies on the Texas Supreme Court's the trial court's March 7, 2003 judgment did not dispose suggestion in Lehmann that, to avoid any doubt as to of all pending claims, it was not a final, appealable the finality of its judgment, a trial court could include a judgment. In its motion, Fresh Coat requested that the statement such as, "'This judgment finally disposes of trial court sign a judgment that "clearly and all parties and all claims and is appealable.'" Id. at 206 unequivocally" disposed of the entire case. Following a (emphasis added). hearing, the trial court denied the motion, for want of jurisdiction, on July 7, 2003. The following day, Fresh Here, however, the fact that the trial court did not Coat filed its notice of appeal from the trial court's March expressly state that its judgment was "appealable" does 7, 2003 judgment. not render the court's intent ambiguous. The issue

3 See TEX. CIV. PRAC. & REM. CODE ANN. § 82.002 (Vernon 1997); TEX. BUS. & COM. CODE ANN. § 17.555 (Vernon 2002). Page 3 of 4 125 S.W.3d 765, *768; 2003 Tex. App. LEXIS 10837, **7

presented to the trial court by Life Forms's motion for case is not interlocutory merely because the record summary judgment was whether Fresh Coat was does not afford a legal basis for the adjudication. In contractually obligated to indemnify Life Forms for the those circumstances, the order must be appealed and attorney's fees, costs, and settlements incurred and reversed." Id. If Fresh Coat had any question as to the paid by Life Forms as a result of the class-action lawsuit. finality of the trial court's judgment, it could have either In its judgment, the trial court awarded, to the penny, the requested [**9] that the trial court clarify its judgment amount of damages which Life Forms claimed it was while the court retained plenary power or perfected a entitled to recover from Fresh Coat, and the trial court timely appeal from the judgment. It did neither. could not have granted any more relief to Life Forms than it did. This judgment clearly and finally disposed of all parties and all pending claims because Life Forms Based on the language of the trial court's March 7, 2003 could recover no more than the amount awarded in the judgment and the record presented, we hold that, as of judgment, [**8] which was everything it sought. the date it was signed, the judgment was a final and appealable judgment disposing of all parties and Moreover, the Texas Supreme Court has suggested pending claims. Accordingly, because Fresh Coat did that, HN5 in a case in which we are uncertain about the not file its notice of appeal within 30 days of the date the trial court's intent in signing a judgment, we may abate judgment was signed, and did not seek an extension of the appeal to permit clarification by the trial court. Id. its appellate deadlines, it has not timely perfected its (citing TEX. R. APP. P. 27.2). We need not do so in this appeal in this cause and has not properly invoked this case because, at the hearing on Fresh Coat's "Motion Court's appellate jurisdiction. See TEX. R. APP. P. 26.1. for Entry of Appealable Judgment," the trial court stated 4 as follows: "I believe it was a final judgment. You are asking me about my belief. My belief was it was a final judgment." Additionally, the trial court denied Fresh Conclusion Coat's motion "for lack of trial court jurisdiction." Thus, the record indicates that the trial court clearly and We grant Life Forms's motion and dismiss the appeal unequivocally expressed its intent to dispose of all for want of jurisdiction. parties and pending claims in its March 7, 2003 judgment. [**10] Terry Jennings

Finally, as the Texas Supreme Court has noted, HN6 Justice "An express adjudication of all parties and claims in a

4 Fresh Coat did not file a motion for new trial or request that the trial court prepare findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a). Page 4 of 4 Page 1

Caution As of: Mar 30, 2015

ALFREDO P. GARCIA d/b/a GARCIA TRUCKING COMPANY, Petitioner, v. KASTNER FARMS, INC., ET AL., Respondents

No. C-8279

SUPREME COURT OF TEXAS

774 S.W.2d 668; 1989 Tex. LEXIS 97; 32 Tex. Sup. J. 573

July 12, 1989, Decided

PRIOR HISTORY: [**1] From Live Oak Coun- could be filed after he received the trial court's findings ty Thirteenth District. of fact and [**2] conclusions of law. Garcia explained that he could not adequately determine the propriety or necessity of an appeal until he had received and reviewed COUNSEL: Mr. W. Michael Murray, Cackowski & these findings of fact and conclusions of law. Murray, Austin, Texas, Attorneys for petitioner. In determining whether to grant Garcia's motion, the court of appeals considered Rule 41(a)(2): Mr. James M. Whitten, Law Offices of James M. Whit- ten P.C., Sinton, Texas, Attorneys for respondents.

JUDGES: C.L. Ray, Justice. An extension of time may be granted by the appellate court for late filing of a cost OPINION BY: RAY bond or notice of appeal or making the deposit required by paragraph (a)(1) or for OPINION filing the affidavit, if such bond or notice [*669] The issue presented is whether Alfredo P. of appeal is filed, deposit is made, or af- Garcia has reasonably explained his failure to timely file fidavit is filed not later than fifteen days a cost bond for appeal. Tex. R. App. P. 41(a)(2). The after the last day allowed and, within the court of appeals held he had not and dismissed Garcia's same period, a motion is filed in the ap- appeal for want of jurisdiction. 761 S.W.2d 444. We re- pellate court reasonably explaining the verse the judgment of the court of appeals and remand need for such extension. the cause to that court for further proceedings. Garcia sued Kastner Farms, Inc. for breach of con- The court of appeals overruled Garcia's motion and dis- tract, and the trial court rendered judgment that Garcia missed the appeal for want of jurisdiction, concluding take nothing. Because Garcia did not file a motion for that a misunderstanding of the law was not a reasonable new trial, the cost bond was due to be filed within thirty explanation. 761 S.W.2d at 446. The court of appeals days. Tex. R. App. P. 41(a)(1). Garcia did not file his cost purported to follow the leading case of Meshwert v. bond within the thirty-day period; however, he did file a Meshwert, 549 S.W.2d 383 (Tex. 1977), and also relied motion to extend time to file his cost bond. Garcia was late in filing his bond because he believed the cost bond Page 2 774 S.W.2d 668, *; 1989 Tex. LEXIS 97, **; 32 Tex. Sup. J. 573

heavily on Home Ins. Co. v. Espinoza, 644 S.W.2d 44 ion in Sloan v. Passman, which said that "the require- (Tex. App. -- Corpus Christi 1982, writ ref'd n.r.e.). ment of a reasonable explanation implies no stricter standard than that applicable to avoidance of a default [**3] In Meshwert, we defined the phrase "rea- judgment." 538 S.W.2d at 1. Under this standard: sonably explaining," to mean "any plausible statement of circumstances indicating that failure to file within the Any plausible statement of circum- [required] period was not deliberate or intentional, but stances indicating that failure to file . . . was the result of inadvertence, mistake or mischance." was not deliberate or intentional, but was 549 S.W.2d at 384. While the definition of reasonable the result of inadvertence, mistake, [**5] explanation is settled, the courts of appeals have not ap- or mischance, [would] be accepted as a plied the definition consistently. Compare Heritage Life reasonable explanation, even though Ins. Co. v. Heritage Group Holding Corp., 751 S.W.2d counsel or his secretary may appear to 229 (Tex. App. -- Dallas 1988, writ denied) (holding that have been lacking in that degree of dili- any conduct short of deliberate or intentional noncom- gence which careful practitioners normal- pliance qualifies as inadvertence, mistake or mischance ly exercise. -- even if that conduct can also be characterized as pro- fessional [*670] negligence) with Home Ins. Co. v. Espinoza, 644 S.W.2d 44 (Tex. Civ. App. -- Corpus Id. This liberal standard of review encompasses the neg- Christi 1982, writ ref'd n.r.e.) (holding that failure to ligence of counsel as a reasonable explanation for the adequately familiarize oneself with the basic rules of necessity of an extension. See Heritage Life, 751 S.W.2d appellate procedure is not a reasonable explanation). at 231-32; Stricklin, 547 S.W.2d at 339-40. Thus, the In Espinoza, the attorney impliedly admitted that she proper focus under Meshwert is on a lack of deliberate or was mistaken regarding the requirements under the rule, intentional failure to comply. See Heritage Life, 751 somehow having gleaned the impression that the cost S.W.2d at 232; Meshwert, 549 S.W.2d at 384. Any con- bond need not be filed if a hearing [**4] on the motion duct short of deliberate or intentional noncompliance for new trial is still pending. The court of appeals in Es- qualifies as inadvertence, mistake or mischance -- even if pinoza said that a misunderstanding of the law was not a that conduct can also be characterized as professional reasonable explanation. We believe that Espinoza repre- negligence. See Heritage Life, 751 S.W.2d at 232. sents an unduly restrictive view of Rule 41(a)(2). We conclude that the view espoused in Espinoza is This court in Meshwert recognized that the reasona- too strict and that the more lenient standard enunciated in ble explanation standard was a relaxed requirement from Heritage Life is correct. In applying the Heritage Life the old standard of good cause. 549 S.W.2d at 384. standard, we have determined Garcia's attempted late Meshwert followed the reasoning of the dissent in Sloan filing was not intentional or deliberate, but was due to v. Passman, 536 S.W.2d 575 (Tex. Civ. App. -- Dallas the attorney's misunderstanding of the law. Accordingly, 1976, no writ) (Guittard, C.J., dissenting at 538 S.W.2d we [**6] hold that the explanation offered is a reasona- 1). Sloan v. Passman was specifically overruled by the ble one within the ambit of rule 41(a)(2). Dallas Court of Civil Appeals in United States Fire Ins. We reverse the judgment of the court of appeals and Co. v. Stricklin, 547 S.W.2d 338 (Tex. Civ. App. -- Dal- remand the cause to that court for further proceedings. las 1977, no writ). Stricklin adopted the dissenting opin- | | Caution As of: April 7, 2015 5:42 PM EDT

Gardner v. U.S. Imaging, Inc. Supreme Court of Texas December 19, 2008, Opinion Delivered NO. 08-0268

Reporter 274 S.W.3d 669; 2008 Tex. LEXIS 1138; 52 Tex. Sup. J. 229

CRAIG GARDNER AND THELMA GARDNER, patient contracting spinal meningitis, which caused his PETITIONERS, v. U.S. IMAGING, INC. D/B/A SADI hearing loss. Both the physician and the health care PAIN MANAGEMENT AND BERNEY KESZLER, M.D., facility objected to the patient's expert report, and they RESPONDENTS moved for dismissal under Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). The health care facility also Subsequent History: Reported at Gardner v. U.S. complained that it was not timely served with the report. Imaging Inc., 2008 Tex. LEXIS 1155 (Tex., Dec. 19, Nevertheless, the health care facility had defaulted, and 2008) it made little sense to require service of the expert report on a party who by default had admitted to the allegations. Prior History: [**1] ON PETITION FOR REVIEW When the health care facility failed to timely answer the FROM THE COURT OF APPEALS FOR THE FOURTH suit, the statutory period was tolled until the health care facility made an appearance. The expert report was DISTRICT OF TEXAS. served well within the statutory period. Also, the report U.S. Imaging, Inc. v. Gardner, 274 S.W.3d 693, 2007 was sufficient because the health care facility's liability Tex. App. LEXIS 9998 (Tex. App. San Antonio, Dec. 28, was vicarious through the physician. 2007) Outcome Core Terms The supreme court reversed the intermediate appellate court, and the matter was remanded to the trial court for expert report, default judgment, trial court, deficient further proceedings consistent with the opinion.

Case Summary LexisNexis® Headnotes Procedural Posture Evidence > ... > Testimony > Expert Witnesses > General Overview Petitioner patient and petitioner wife brought a health Healthcare Law > ... > Actions Against Facilities > Facility care liability suit against respondent physician and Liability > General Overview respondent health care facility, alleging that the physician was negligent and failed to obtain the patient's Healthcare Law > Healthcare Litigation > Actions Against informed consent. The trial court denied a motion to Healthcare Workers > Doctors & Physicians dismiss the suit, but the Court of Appeals for the Fourth Torts > Malpractice & Professional Liability > Healthcare District of Texas determined an expert report was Providers deficient and ordered the case dismissed. Review was sought. HN1 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) provides that a health care liability suit must be Overview dismissed if a non-compliant report is served, subject to the availability of one thirty-day extension to cure under The physician performed a lumbar epidural procedure Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). on the patient. The patient and his wife served an expert report on the physician and the health care facility. The Evidence > ... > Testimony > Expert Witnesses > General patient contended the physician's actions led to the Overview 274 S.W.3d 669, *669; 2008 Tex. LEXIS 1138, **1

Healthcare Law > ... > Actions Against Facilities > Facility performed a lumbar epidural procedure on Craig, and Liability > General Overview U.S. Imaging, Inc. d/b/a SADI Pain Management Healthcare Law > Healthcare Litigation > Actions Against ("SADI"), the owner and operator of the facility where Healthcare Workers > Doctors & Physicians the procedure was performed. The Gardners served an expert report on Dr. Keszler and SADI, who both Torts > Malpractice & Professional Liability > Healthcare contested the report as untimely and deficient. See Providers TEX. CIV. PRAC. & REM. CODE § 74.351(a). The trial HN2 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) court denied the defendants' motion to dismiss the suit, states that, within 120 days of filing an original petition, but the court of appeals determined the report was a claimant must serve on each party or the party's deficient and ordered the case dismissed. S.W.3d at . attorney one or more expert reports. Although we do not disturb the court of appeals' determination that the report was deficient, in light of Civil Procedure > ... > Pretrial Judgments > Default & our decision in Leland v. Brandal, 257 S.W.3d 204 (Tex. Default Judgments > Relief From Default 2008), we vacate the court of appeals' judgment and remand the case to the trial court to consider granting HN3 For a default judgment to be set aside, the plaintiff the Gardners an extension to cure under section must be placed in no worse position than he would have 74.351(c) of the Texas Civil Practice and Remedies been had an answer been filed. Code.

Evidence > ... > Testimony > Expert Witnesses > General On August 24, 2006, the Gardners filed this suit alleging Overview that Dr. Keszler was negligent in choosing to [**2] perform a lumbar epidural procedure, that he did Healthcare Law > ... > Actions Against Facilities > Facility not conform to the standard of care while performing the Liability > General Overview procedure, and that he failed to obtain Craig Gardner's Torts > Malpractice & Professional Liability > Healthcare informed consent. The Gardners contend Dr. Keszler's Providers actions led to Craig's contracting spinal meningitis, which caused his hearing loss. Dr. Keszler timely HN4 When a party's alleged health care liability is answered the suit, and pursuant to section 74.351(a), purely vicarious, a report that adequately implicates the the Gardners served Dr. Keszler with an expert report actions of that party's agents or employees is sufficient. from Dr. Edson O. Parker (the "Parker report") within 120 days of filing suit. TEX. CIV. PRAC. & REM. CODE Counsel: For Mr. Craig Gardner, PETITIONER: Ms. § 74.351(a). Elizabeth Leslie Higginbotham, Higginbotham & Associates, Austin, TX.; Mr. William M. Nichols, William Unlike Dr. Keszler, SADI failed to timely answer the suit M. Nichols, P.C., San Antonio, TX. and, before the 120-day period for filing an expert report expired on December 22, 2006, the Gardners moved For U.S. Imaging Inc., RESPONDENT: Mr. Lynn Cullen for default judgment against SADI. The trial court Moore, Ms. Debra Ibarra Mayfield, Mr. Nathan rendered a default judgment on December 14, 2006, Montgomer Rymer, Rymer Moore Jackson & Echols, and severed the suit against SADI. Upon learning of the P.C., Houston, TX. default judgment, SADI filed an answer in the severed suit, along with a motion for new trial and a motion to set For Mr. Berney Keszler, M.D., RESPONDENT: Mr. aside the default judgment. Pursuant to the parties' Michael J. Mooris, Morris & Allen, New Braunfels, TX.; agreement, the court, on February 8, 2007, granted a Ms. Stephanie S. Bascon, Law Office of Stephanie S. new trial and set aside the default judgment. In Bascon PLLC, New Braunfels, TX. accordance with the agreed order, the Gardners nonsuited the severed [**3] suit, SADI filed an answer in the original suit on February 12, and the Gardners Opinion filed an amended petition in the original suit on February 16. On March 20, the Gardners served SADI with the [*670] PER CURIAM expert report they had served on Dr. Keszler. Craig Gardner and Thelma Gardner brought this health Dr. Keszler and SADI objected to the report and moved care liability suit against Dr. Berney Keszler, who for dismissal under HN1 section 74.351(b), which Page 2 of 4 274 S.W.3d 669, *670; 2008 Tex. LEXIS 1138, **3

provides that a health care liability suit must be purpose to inform the served party of the conduct called dismissed if a non-compliant report is served, subject to into question and to provide a basis for the trial court to the availability of one thirty-day extension to cure under conclude that the plaintiff's claims have merit, it makes section 74.351(c). TEX. CIV. PRAC. & REM. CODE § little sense to require service of an expert report on a 74.351(b), (c); see Lewis v. Funderburk, 253 S.W.3d party who by default has admitted the plaintiff's 204, 207 (Tex. 2008). The trial court, presumably finding allegations. Moreover, our jurisprudence requires that, that the report complied with the statute, denied the HN3 for a [**6] default judgment to be set aside, the defendants' motions to dismiss. The court of appeals plaintiff must be placed "in no worse position than he reversed, however, reasoning that the report was would have been had an answer been filed . . . ." deficient because the discussion of causation was Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, conclusory. S.W.3d at . The court remanded the case 133 S.W.2d 124, 125 (Tex. 1939). Accordingly, when to the trial court to award the defendants reasonable SADI failed to timely answer the Gardners' suit by the attorneys' fees and costs pursuant to section 74.351(b). Monday following the expiration of twenty days after it Id. at . In their motion for rehearing before the court of was served, see TEX. R. CIV. P. 99(b), the statutory appeals, [*671] the Gardners argued that, in light of our period for serving it with an expert report was tolled until decision in Leland, 257 S.W.3d 204, the court of such time as SADI made an appearance. Once the [**4] appeals should have also remanded the suit to the default judgment was set aside and SADI filed an trial court to consider granting a thirty-day extension to answer, tolling ended and the Gardners had 100 days cure. 1 We agree, and reject the defendants' contention remaining in which to serve SADI with an expert report. that the Parker report is so deficient as to constitute no SADI filed an answer in the original suit on February 12, report at all. See Ogletree v. Matthews, 262 S.W.3d and the Gardners served it with an expert report on 316, 323 (Tex. 2007) (WILLETT, J., concurring); March 20, well within the remaining statutory period. Funderburk, 253 S.W.3d at 211 (WILLETT, J., SADI additionally contends it was not served with an concurring). 2 expert report because the report that was served does SADI asserts an additional challenge, contending it was not mention SADI or implicate its behavior. The not served with an expert report within the statutory Gardners respond that because SADI's alleged liability deadline. HN2 Section 74.351(a) states that, within 120 is purely vicarious in nature, the report as to Dr. Keszler days of filing an original petition, a claimant must "serve was sufficient. To the extent the allegations against [**5] on each party or the party's attorney one or more SADI are based upon respondeat superior, we agree expert reports." TEX. CIV. PRAC. & REM. CODE § with [**7] the Gardners. HN4 When a party's alleged 74.351(a). Because SADI was named in the original health care liability is purely vicarious, [*672] a report petition as a party to this suit, the Gardners were that adequately implicates the actions of that party's required to serve it with a report before the statutory agents or employees is sufficient. See Univ. of Tex. period expired on December 22, 2006, and it is Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex. undisputed they failed to do so. However, before the App.--Houston [1st Dist.] 2008, no pet.); Univ. of Tex. 120-day period expired, SADI defaulted and judgment Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. was taken against it. The statute does not specify the App.--Dallas 2006, no pet.); Casados v. Harris Methodist effect of a default judgment on the 120-day period. But H-E-B, No. 2-05-080-CV, 2006 Tex. App. LEXIS 6357, the effect of default on a plaintiff's claim for unliquidated at *12-*13 (Tex. App.--Fort Worth July 20, 2006, no damages is clear: once a default judgment is taken, all pet.)(not designated for publication) . Thus, to the extent factual allegations contained in the petition, except the the Gardners allege that SADI is liable only vicariously amount of damages, are deemed admitted. See Holt for Dr. Keszler's actions, the expert report requirement Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. is fulfilled as to SADI if the report is adequate as to Dr. 1992). In light of the expert-report requirement's dual Keszler.

1 Because the Gardners argued that the trial court's decision should have been affirmed, and remand constitutes lesser included relief, the Gardners need not have requested an extension earlier to preserve such relief. See Martinez-Partido v. Methodist Specialty & Transplant Hosp., 267 S.W.3d 881 (Tex. 2008). 2 The defendants additionally contend the report is deficient because Dr. Parker was not qualified to render an opinion. Because such a deficiency would be subject to cure on remand, we do not address the defendants' challenge to Dr. Parker's qualifications. Funderburk, 253 S.W.3d at 207. Page 3 of 4 274 S.W.3d 669, *672; 2008 Tex. LEXIS 1138, **7

We grant the petition and, without hearing oral OPINION DELIVERED: December 19, 2008 argument, reverse the court of appeals' judgment and remand to the trial court for further proceedings consistent with this opinion. See TEX. R. APP. P. 59.1, 60.2(f).

Page 4 of 4 Page 1

1 of 1 DOCUMENT

RAYLEE GILSTRAP, Appellant v. JASON CALLEY, Appellee

NO. 14-04-01064-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2004 Tex. App. LEXIS 11035

December 9, 2004, Rendered December 9, 2004, Memorandum Opinion Filed

PRIOR HISTORY: [*1] On Appeal from the Civil Procedure > Judgments > Relief From Judgment 405th District Court. Galveston County, Texas. Trial > Motions for New Trials Court Cause No. 01CV1010. Civil Procedure > Appeals > Reviewability > Time Lim- itations DISPOSITION: Appeal is dismissed. Governments > Legislation > Statutes of Limitations > Time Limitations CASE SUMMARY: [HN1] A notice of appeal must be filed within 30 days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the PROCEDURAL POSTURE: Appellant, a pro se liti- judgment, motion to reinstate, or request for findings of gant, sought review of a judgment from the 405th Dis- fact and conclusion of law. Tex. R. App. P. 26.1. trict Court, Galveston County (Texas), in a civil case.

OVERVIEW: No motion for new trial was filed. The Civil Procedure > Pleading & Practice > Pleadings > notice of appeal was filed more than 30 days after entry Time Limitations > Extensions of judgment; hence, it was untimely under Tex. R. App. Civil Procedure > Appeals > Reviewability > Time Lim- P. 26.1. Moreover, the notice of appeal was not filed itations within the 15-day grace period provided by Tex. R. App. Governments > Legislation > Statutes of Limitations > P. 26.3. The litigant claimed that he did not receive no- Time Limitations tice of entry of final judgment; however, he had not [HN2] A motion for extension of time is necessarily im- sought to establish late notice of a judgment under the plied when an appellant, acting in good faith, files a no- procedures set out in Tex. R. Civ. P. 306a(4), (5). The tice of appeal beyond the time allowed by Tex. R. App. P. court observed that pro se litigants were held to the same 26.1, but within the 15-day grace period provided by standards as licensed attorneys and were required to Rule 26.3 for filing a motion for extension of time. comply with all applicable rules of procedure. Accord- However, the appellant must offer a reasonable explana- ingly, the court declined to extend the deadline for per- tion for failing to file the notice of appeal in a timely fecting the appeal. manner. Tex. R. App. P. 26.3, 10.5(b)(1)(C).

OUTCOME: The court dismissed the appeal. Civil Procedure > Parties > Self-Representation > LexisNexis(R) Headnotes General Overview [HN3] Pro se litigants are held to the same standards as licensed attorneys, and therefore they must comply with all applicable rules of procedure. Page 2 2004 Tex. App. LEXIS 11035, *

timely manner. See TEX. R. APP. P. 26.3, 10.5(b)(1)(C); COUNSEL: For APPELLANTS: Raylee Gilstrap, Iowa Verburgt, 959 S.W.2d at 617-18. Appellant's notice of Park, TX. appeal was not filed within the fifteen-day period pro- vided by Rule 26.3 For APPELLEES: Jerry A. Pusch, Kurt Arbuckle, Hou- On November 4, 2004, notification was transmitted ston, TX. to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). JUDGES: Panel consists of Justices Anderson, Hudson, Appellant filed a response, claiming that he was never and Frost. apprised of entry of final judgment. Because appellant filed a notice of appeal, he did, at some point, become OPINION aware of entry of final judgment. If appellant did not MEMORANDUM OPINION receive timely notice of the trial court judgment, he could have extended the deadlines for appeal by follow- This is an attempted appeal from a judgment, signed ing the procedures set out in TEX. R. CIV. P. June 11, 2003. No motion for new trial was filed. Appel- 306a(4)-(5). [HN3] Pro se litigants are held to the same lant's notice of appeal was filed on October 4, 2004. standards as licensed attorneys, and therefore they must [HN1] The notice of appeal must be filed within comply with all applicable Rules of procedure. Mans- thirty days after the judgment is signed when appellant field State Bank v. Cohn, 573 S.W.2d 181, 184-85, 22 has not filed a timely motion for new trial, motion to Tex. Sup. Ct. J. 43 (Tex. 1978) [*3] (holding that liti- modify the judgment, motion to reinstate, or request for gants who represent themselves must comply with pro- findings of fact and conclusion of law. See TEX. R. APP. cedures established by Rules notwithstanding fact that P. 26.1 they are not licensed attorneys). Because appellant failed to follow the procedures for establishing late notice of Appellant's notice of appeal was not filed timely. the judgment, the deadline for perfecting the appeal was [HN2] A motion for extension of time is necessarily im- not extended. We find that appellant's response to our plied when an appellant, acting in good faith, files a no- notice regarding the untimely notice of appeal fails to tice of appeal beyond the time allowed by rule 26.1, but demonstrate that this Court has jurisdiction to entertain within the fifteen-day grace period provided by Rule 26.3 the appeal. for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 41 Tex. Sup. Ct. J. Accordingly, the appeal is ordered dismissed. 138 (1997) [*2] (construing the predecessor to Rule 26). However, the appellant must offer a reasonable ex- planation for failing to file the notice of appeal in a | | Positive As of: April 7, 2015 5:43 PM EDT

Ginn v. Forrester Supreme Court of Texas March 27, 2009, Opinion Delivered NO. 08-0163

Reporter 282 S.W.3d 430; 2009 Tex. LEXIS 112; 52 Tex. Sup. J. 491

EMMANUEL GINN, A&R TRANSPORT, INC., KEITH that the clerk's notation that there was no notice in the JACKSON, STEVE BRANTLEY, PETITIONERS, v. record affirmatively demonstrated the trial court's failure JEFF FORRESTER AND KIM FORRESTER, to notify plaintiffs of the impending and subsequent RESPONDENTS dismissal, the court of appeals reversed the dismissal. The court agreed with defendants that this was error. Prior History: [**1] ON PETITION FOR REVIEW Although the clerk was required to give notice of the FROM THE COURT OF APPEALS FOR THE dismissal, the clerk was not required to enter any such FOURTEENTH DISTRICT OF TEXAS. notice on the record. A record that was silent was Forrester v. Ginn, 282 S.W.3d 513, 2008 Tex. App. insufficient for a restricted appeal. In this case, the LEXIS 125 (Tex. App. Houston 14th Dist., Jan. 10, clerk's notation that the record was silent as to the 2008) giving of notices was not more that an affirmation of a silent record, which was insufficient to establish Core Terms reversible error in a restricted appeal.

Outcome notice, trial court, notation, want of prosecution, face of The court reversed the court of appeals' judgment and the record, court of appeals rendered judgment dismissing the case.

Case Summary LexisNexis® Headnotes Procedural Posture Civil Procedure > ... > Standards of Review > Plain Error > Plaintiffs filed suit against defendants for damages Obvious Errors arising out of a traffic accident. The trial court dismissed HN1 A restricted appeal requires error that is apparent the case for want of prosecution. The plaintiffs filed a on the face of the record; error that is merely inferred notice of restricted appeal. The Court of Appeals for the will not suffice. 14th District of Texas reversed the dismissal. Defendants appealed, contending the court of appeals Civil Procedure > Dismissal > Involuntary Dismissals > erred in holding that the requirements for a restricted Failure to Prosecute appeal were met. HN2 Before a trial court may properly dismiss a case for Overview want of prosecution, notice of the court's intention to dismiss and the date and place of the dismissal hearing Plaintiffs' restricted appeal required an error that was shall be sent by the clerk to each attorney of record. apparent on the face of the record under Tex. R. App. P. Tex. R. Civ. P. 165a(1). 30. Plaintiffs contended that they never received notice of the dismissal for want of prosecution as required by Civil Procedure > ... > Standards of Review > Plain Error > Tex. R. Civ. P. 165a(1) and Tex. R. Civ. P. 306a(3). The Obvious Errors court of appeals suggested that they supplement the record with a notation from the clerk that no notice was HN3 When a party claims in a restricted appeal that contained in the record, and plaintiffs did so. Concluding required notice was not given or a required hearing was 282 S.W.3d 430, *430; 2009 Tex. LEXIS 112, **1

never held, the error must appear on the face of the of the record. Accordingly, we reverse the court of record. Tex. R. App. P. 30. When extrinsic evidence is appeals' judgment and render judgment dismissing the necessary to challenge a judgment, the appropriate case. remedy is by motion for new trial or by bill of review filed in the trial court so that the trial court has the opportunity Jeff and Kim Forrester filed suit against Emmanuel to consider and weigh factual evidence. Ginn, A&R Transport, Inc., Keith Jackson, and Steve Brantley (collectively Ginn) on January 29, 2004, for Civil Procedure > Dismissal > Involuntary Dismissals > damages arising out of a traffic accident. On May 18, Failure to Prosecute 2005, the trial court notified all parties that unless either Civil Procedure > ... > Standards of Review > Plain Error > a judgment [**2] or scheduling order was signed or a Obvious Errors verified motion to retain was filed by June 27, the case would be dismissed for want of prosecution. On June Governments > Courts > Clerks of Court 17, Forrester filed a verified motion to retain the case, HN4 As to what constitutes error on the face of the which the trial court granted after inserting the words record for purposes of Tex. R. App. P. 30, silence is not "for 60 days" at the end of the paragraph ordering enough. The rules governing dismissals for want of retention. The trial court subsequently granted prosecution direct the district clerk to mail notice Forrester's [*432] motion to substitute counsel, but the containing the date and place of hearing at which the record reflects no further activity until December 2 when court intends to dismiss the case, Tex. R. Civ. P. 165a(1), the trial court dismissed the case for want of prosecution. and a similar notice of the signing of the dismissal order, Six months later, Forrester filed a notice of restricted Tex. R. Civ. P. 306a(3). But the rules do not impose appeal. upon the clerk an affirmative duty to record the mailing The court of appeals initially denied Forrester's restricted of the required notices; accordingly, the absence of appeal for failure to demonstrate error apparent on the proof in the record that notice was provided does not face of the record, but suggested that this requirement establish error on the face of the record. might be satisfied by a notation from the trial court clerk indicating that no documents were available to show Counsel: For Ginn, Emmanuel, Petitioner: Mr. Edward the notice allegedly not given or the record of the E. Rundell, Gold, Weems, Bruser, Sues & Rundell, hearing allegedly not had. Forrester v. Ginn, No. Alexandria LA. 14-06-00549-CV, 2007 Tex. App. LEXIS 5826 at *14 (Tex. App.--Houston [14th Dist.] July 26, 2007), reh'g For Forrester, Jeff, Respondent: Mr. Michael C. granted, vacated by 282 S.W.3d 513, 2008 Tex. App. Engelhart, Ms. Kelly Alice Greenwood, Engelhart & LEXIS 125. Apparently relying on the court of appeals' Greenwood, L.L.P., Houston TX. suggestion, Forrester requested a supplemental [**3] clerk's record containing the following documents, Opinion or an indication in writing that the following documents were not contained in the clerk's file: [*431] PER CURIAM 1. Notice of Dismissal for Want of Prosecution, Dated December 2, 2005; HN1 A restricted appeal requires error that is apparent on the face of the record; error that is merely inferred 2. Any notice of intent to dismiss dated after will not suffice. In this case, the clerk's supplemental June 27, 2005 and before December 2, 2005; record contains a notation that the clerk's office was 3. Any notice of any hearing scheduled for unable to locate documents indicating notice was sent December 2, 2005 regarding the court's intent or a hearing was held on the trial court's dismissal for to dismiss the case; want of prosecution. Construing the notation as affirmative evidence that the trial court failed to provide 4. The record of any hearing regarding the notice, a divided court of appeals concluded the court's intent to dismiss held on December 2, requirements for a restricted appeal were met. S.W.3d 2005 in this case; . Because the clerk has no affirmative duty to record 5. Any trial court docket sheet entry for any the giving of notice, however, a statement that the notice of a hearing to be held on December 2, record reflects none cannot establish error on the face 2005; Page 2 of 3 282 S.W.3d 430, *432; 2009 Tex. LEXIS 112, **3

6. Any trial court docket sheet entry regarding HN4 As to what does constitute error on the face of the any hearing on the court's intent to dismiss held record, we have clearly said that silence is not enough. on December 2, 2005; The rules governing dismissals for want of prosecution direct the district clerk to mail notice containing the date 7. Any notice of the December 2, 2005 dismissal and place of hearing at which the court intends to order sent to Plaintiffs[] or their counsel . . . . dismiss the case, TEX. R. CIV. P. 165a(1), and a similar In response to Forrester's request, the clerk provided a notice of the signing of the dismissal order, see TEX. R. supplemental record that concluded with the statement CIV. P. 306a(3). But the rules do not impose upon the "NOTE: Unable to locate other items requested." clerk an affirmative duty to record the mailing of the Concluding on rehearing that the clerk's notation required notices; accordingly, the absence of proof in affirmatively demonstrated the trial court's failure to the record that notice was provided does not establish notify Forrester of the impending and subsequent error on the face of the record. See Alexander, 134 dismissal, the court of appeals reversed the trial S.W.3d at 849 ("'The absence from the record of [**4] court's judgment of dismissal and remanded the affirmative proof that notice of intent to dismiss or of the case for further proceedings. S.W.3d , . Ginn filed order of dismissal was provided does not establish this petition for review contending the court of appeals error.'" (quoting Falcon Ridge, 811 S.W.2d at 944)). erred in holding that the requirements for a restricted appeal were met. We agree. Forrester contends, and the court of appeals held, that the clerk's notation in the trial [**6] record that the HN2 Before a trial court may properly dismiss a case for clerk's office was "[u]nable to locate other items want of prosecution, "[n]otice of the court's intention to requested" affirmatively reveals that the trial court failed dismiss and the date and place of the dismissal hearing to notify Forrester of its intent to dismiss the case. shall be sent by the clerk to each attorney of record." Because the clerk's notation is in writing and appears in TEX. R. CIV. P. 165a(1). HN3 When a party claims in a the record, Forrester asserts, the record as to notice is restricted appeal that required notice was not given or a not silent but rather demonstrates on its face that no required hearing was never held, the error must appear notice was given. According to Forrester, the clerk's on the face of the record. See TEX. R. APP. P. 30; Gold notation comports with the requirements we have v. Gold, 145 S.W.3d 212, 213 (Tex. 2004); Alexander v. articulated for a restricted appeal. We fail to see the Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); distinction, however, between a record that is silent and Gen. Elec. Co. v. Falcon Ridge Apartments, Joint a record that contains a written notation that the record Venture, 811 S.W.2d 942, 943 (Tex. 1991). When is silent; either way, proof of error is absent. See Gold, extrinsic evidence is necessary to challenge a judgment, 145 S.W. 3d at 213; Alexander, 134 S.W. 3d at 849-50; the appropriate remedy is by motion for new trial or by Falcon Ridge, 811 S.W.2d at 943-44. The clerk's bill of review filed in the trial court so that the trial court notation reflected nothing more than affirmation of a has the opportunity to consider and weigh factual silent record, which is insufficient to establish reversible evidence. See Falcon Ridge, 811 S.W.2d at 944. error in a restricted appeal. Accordingly, we have held that affidavits [**5] filed for the first time in the appellate court from the district clerk We reverse the court of appeals' judgment and render and its counsel averring, respectively, that notice was judgment dismissing the case. neither given nor received constituted extrinsic evidence and [*433] did not support a restricted appeal. Id. at OPINION DELIVERED: March 27, 2009 943-44.

Page 3 of 3 | | Positive As of: April 7, 2015 5:44 PM EDT

Grondona v. Sutton Court of Appeals of Texas, Third District, Austin October 22, 1998, Filed NO. 03-98-00454-CV

Reporter 991 S.W.2d 90; 1998 Tex. App. LEXIS 6541

Marco Bence Grondona, Santa Cristina Sociedad appeal on August 14. First appellant filed an amended Anonima, Atahualpa del Monte Sociedad Anonima, and motion to establish late notice of judgment on August Ignacio Maria Steverlynck, Appellants v. Joseph H. 19, which was denied. Appellants moved the appeals Sutton, Appellee court to deem their appeal timely filed and appellee moved for dismissal of the appeal for want of jurisdiction. Subsequent History: [**1] Petition for Review Denied The appeals court denied appellants' motion and October 7, 1999. granted appellee's motion. The court held that since first appellant failed to provide evidence of when his Prior History: FROM THE DISTRICT COURT OF attorney learned of the judgment during the trial court's TRAVIS COUNTY, 200TH JUDICIAL DISTRICT. NO. plenary power, as required by Tex. R. Civ. P. 306a(5), 98-02843, HONORABLE JON N. WISSER, JUDGE the ruling had no effect. Thus, first appellant failed to PRESIDING. invoke the trial court's jurisdiction and his notice of appeal was untimely. Remaining appellants' notices Disposition: Appeal Dismissed for Want of Jurisdiction were likewise ineffective. Appellee's motion to dismiss on Appellee's Motion. the appeal was granted.

Core Terms Outcome

The court held that the district court's denial of notice, date of notice, days, plenary power, trial court, appellants' motion to establish late notice of judgment notice of appeal, no writ had no effect because it was not made during the district court's plenary power. The court granted Case Summary appellee's motion to dismiss the appeal for want of prosecution holding appellants' notice of appeal was Procedural Posture untimely.

Appellant sought review of a judgment of the District LexisNexis® Headnotes Court of Travis County, 200th Judicial District (Texas) that denied appellants' motion to establish late notice of Civil Procedure > Attorneys > General Overview judgment. Appellant moved the appeals court to deem their appeal timely filed. Appellee moved for dismissal Civil Procedure > Judgments > Entry of Judgments > of the appeal for want of prosecution. General Overview

Overview HN1 An exception to the rule that procedural timetables run from the date the judgment is signed exists for a Default judgment was entered against appellants on party who learns of the judgment more than 20 but less April 21, and they timely moved for a new trial, which than 90 days after it was signed. Tex. R. Civ. P. 306a(4); was denied. First appellant filed a motion to establish Tex. R. App. P. 4.2. To benefit from the exception, the late notice of judgment, asserting that he first had notice party must prove in the trial court, on sworn motion and of the judgment on May 19. He filed a notice of appeal notice, the date he or his attorney first received notice or on the same date. Remaining appellants filed notices of acquired actual knowledge of the signing. Tex. R. Civ. P. 991 S.W.2d 90, *90; 1998 Tex. App. LEXIS 6541, **1

306a(5). If evidence at the hearing establishes the date Grondona's motion. of notice, appellate deadlines and the court's plenary power start from that date rather than the date the HN1 An exception to the rule that procedural timetables judgment was signed. Tex. R. Civ. P. 306a(4); Tex. R. run from the date the judgment is signed exists for a App. P. 4.2(a)(1). party who learns of the judgment more than twenty, but less than ninety, days after it was signed. Tex. R. Civ. P. Civil Procedure > ... > Subject Matter Jurisdiction > 306a(4); Tex. R. App. P. 4.2. To benefit from the Jurisdiction Over Actions > General Overview exception, the party must prove in the trial court, on sworn motion and notice, the date he or his attorney first Civil Procedure > Judgments > Entry of Judgments > received notice or acquired actual knowledge of the General Overview signing. Tex. R. Civ. P. 306a(5). If evidence at the HN2 Complying with the provisions of Tex. R. Civ. P. hearing establishes the date of notice, appellate 306a is a jurisdictional requisite. The sworn motion deadlines and the court's plenary power start from that serves the purpose of establishing a prima facie case of date rather than the date the judgment was signed. Tex. lack of timely notice, thereby invoking the trial court's R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a)(1). jurisdiction for the limited purpose of holding a hearing HN2 Complying with the provisions of Rule 306a is a to determine the date of notice. If the movant fails to jurisdictional requisite. Memorial Hosp. v. Gillis, 741 establish the applicability of the exception in the manner S.W.2d 364, 365-66 (Tex. 1987); In re Simpson, 932 prescribed, the trial court lacks jurisdiction to determine S.W.2d 674, 677 (Tex. App.--Amarillo 1996, no writ). the date of notice and any order doing so is void. The sworn motion serves the purpose of establishing a prima- facie case of lack of timely notice, thereby Counsel: FOR APPELLANT: Mr. Robert C. Alden, invoking the trial court's jurisdiction for the limited [*92] Bracewell & Patterson, L.L.P., Austin, TX. purpose of holding a hearing to determine the date of [**3] notice. Carrera v. Marsh, 847 S.W.2d 337, 342 FOR APPELLEE: Mr. Edward P. Watt, Watt & (Tex. App.--El Paso 1993, orig. proceeding). If the Associates, P.C., Austin, TX. movant fails to establish the applicability of the exception in the manner prescribed, the trial court lacks jurisdiction Judges: Before Justices Powers, Aboussie and Kidd. to determine the date of notice and any order doing so is void. Gillis, 741 S.W.2d at 365-66; Simpson, 932 Opinion S.W.2d at 678.

[*91] PER CURIAM We first consider whether Grondona's motion invoked the trial court's jurisdiction to hear evidence to determine Appellants Marco Bence Grondona, Santa Cristina the date of notice. Grondona filed his motion eighty-four Sociedad Anonima, Atahualpa del Monte Sociedad days after the date he claims to have learned of the Anonima, and Ignacio Maria Steverlynck move this default judgment. Neither Rule 306a nor Rule 4 states Court to deem their appeal timely perfected. Appellee when a party must move for a determination of late Joseph Sutton moves to dismiss the appeal for want of notice. Several courts of appeals have held that a party jurisdiction. must file such a motion within thirty days of acquiring notice. See Gonzalez v. Sanchez, 927 S.W.2d 218, 221 On April 21, 1998, the trial court signed a default (Tex. App.--El Paso 1996, no writ); Montalvo v. Rio Nat'l judgment against appellants. Appellants timely moved Bank, 885 S.W.2d 235, 237 (Tex. App.--Corpus Christi for a new trial on May 21, and the court denied the 1994, no writ); Womack-Humphreys Architects, Inc. v. motion by an order signed on July 15. On August 11, Barrasso, 886 S.W.2d 809, 816 (Tex. App.--Dallas 1994, Grondona filed a motion to establish late notice of writ denied). judgment, asserting that he first had notice of the judgment on May 19. He filed a notice of appeal on the This Court, however, has concluded that a party can file same date. The remaining appellants filed notices of such a motion more than thirty days after receiving [**4] appeal on August 14. Grondona amended his motion to notice, as long as he files it within the court's plenary establish late notice of judgment on August 19, and [**2] power counted from the date of notice. Vineyard Bay on September 3, the trial court signed an order denying Dev. Co. v. Vineyard on Lake Travis, 864 S.W.2d 170, Page 2 of 3 991 S.W.2d 90, *92; 1998 Tex. App. LEXIS 6541, **4

172 & n.1 (Tex. App.--Austin 1993, writ denied). In Even if Grondona had offered prima-facie evidence Vineyard Bay, the motion to determine notice was filed during the court's plenary power, he failed to obtain a thirty-one days after the date of notice but during the ruling on his motion within that period. See Montalvo, court's plenary power, which had been extended by a 885 S.W.2d at 237-38; Barrasso, 886 S.W.2d at 816; motion for new trial. Id. Here, Grondona moved for a Conaway v. Lopez, 843 S.W.2d 732, 733 (Tex. new trial on May 21, two days after the asserted date of App.--Austin 1992, no writ). The trial court heard the notice, and the trial court overruled the motion on July motion and signed the order overruling it on September 15. The court's plenary power would therefore have 3, beyond the time it would have had power to determine expired thirty days later on August 14. Grondona's the date of notice of judgment. The order is therefore of motion, filed on August 11, was timely. no effect. 1

[**6] We conclude that Grondona failed to invoke the To make a prima-facie case of lack of timely notice, trial court's jurisdiction to determine [*93] the date of Grondona had to offer evidence that neither he nor his notice of the judgment. His notice of appeal, filed 112 attorney learned of the judgment within twenty days days after the judgment was signed, is thus untimely. after it was signed. Tex. R. Civ. P. 306a(5); Simpson, See Tex. R. App. P. 26.1. The remaining appellants 932 S.W.2d at 678; see Tex. R. App. P. 4.2(c). By assert that they have timely appealed because they affidavit attached to the motion, Grondona states that filed their notices of appeal within fourteen days after he first received notice of the judgment on May 19. Grondona filed his notice of appeal. See Tex. R. App. P. Grondona offered no evidence, however, of when his 26.1(d). Because Grondona's notice of appeal is attorney first learned of the judgment. ineffective to perfect appeal, the remaining notices are likewise ineffective. On August 19, Grondona filed [**5] an amended motion to determine the date of notice. The amended motion We overrule appellants' motion to deem the appeal includes the affidavit of Grondona's attorney, who avers timely perfected. Because we lack jurisdiction over an that he did not know of the judgment until May 19. appeal that is not timely perfected, we grant Sutton's Grondona therefore could not have made a prima-facie motion to dismiss the appeal. Davies v. Massey, 561 case until the amended motion was filed on August 19, S.W.2d 799, 800 (Tex. 1978). We dismiss the appeal for beyond the trial court's plenary power. By failing to offer want of jurisdiction. Tex. R. App. P. 42.3(a). prima-facie evidence of late notice of judgment during Before Justices Powers, Aboussie and Kidd the trial court's plenary power, Grondona did not invoke the court's jurisdiction to determine the date of notice. Dismissed for Want of Jurisdiction on Appellee's Motion Barrasso, 886 S.W.2d at 816; Montalvo, 885 S.W.2d at 237-38; see Owen v. Hodge, 874 S.W.2d 301, 303 (Tex. Filed: October 22, 1998 App.--Houston [1st Dist.] 1994, no writ).

1 The court found in its order that the date the judgment was signed remained applicable. Having determined that the trial court lacked jurisdiction to render the order, we do not review the finding substantively. Page 3 of 3 Page 1

Caution As of: Mar 30, 2015

PAUL HERBERT, Appellant v. GREATER GULF COAST ENTERPRISES, INC. D/B/A GULF COAST ENTERPRISES, Appellee

No. 01-94-01240-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

915 S.W.2d 866; 1995 Tex. App. LEXIS 2859

November 16, 1995, Filed

PRIOR HISTORY: [**1] On Appeal from the Paul Herbert appeals a default judgment in favor of County Civil Court at Law Number Three. Harris Coun- appellee Greater Gulf Coast Enterprises, Inc., D/B/A ty, Texas. Trial Court Cause No. 627786. CAROLYN D. Gulf Coast Enterprises, Inc. (Gulf Coast), in a suit HOBSON, Judge. brought under Tex. Prop. Code Ann. 162.001 (Vernon This Opinion Substituted on Grant of Appellant Paul 1984). In five points of error, appellant contends that Herbert's Motion for Rehearing for Withdrawn Opinion service of process was defective, that the trial court did of August 3, 1995, Previously Reported at: 1995 Tex. not have personal jurisdiction over him, and that there App. LEXIS 1740. was no evidence to establish misapplication of trust funds or quantum meruit or to support the award of ex- DISPOSITION: Judgment affirmed in part; reversed emplary damages. We reverse in part and affirm in part. and remanded in part Facts Appellant, who resides in Connecticut, is the presi- COUNSEL: For Appellant: DAVID S. O'NEIL, MAU- dent of Herbert and Boghosian, Inc. (H&B), a Connecti- RICE TATE 3RD., WOODLAND. cut corporation [**2] in the business of general con- tracting. Gulf Coast contracted with H&B to supply labor For Appellee: CHUCK PORTZ, HOUSTON. and materials to demolish and reinstall drywall and acoustical materials. Although Gulf Coast fully per- JUDGES: Adele Hedges, Justice, Justices Hutson-Dunn formed its obligations, H&B refused to pay as agreed. and Mirabal also sitting. Gulf Coast sued appellant and H&B in Harris County, Texas to recover the money it alleged it was owed. Both OPINION BY: ADELE HEDGES H&B and appellant were served in Connecticut under Tex. R. Civ. P. 108. Neither filed an answer or made an OPINION appearance. The trial court granted Gulf Coast's motion for default judgment and entered judgment finding ap- [*869] OPINION ON MOTION FOR RE- pellant and H&B jointly and severally liable for $ 61,373 HEARING actual damages, $ 1,800 in pre-judgment interest, $ 305 We grant appellant, Paul Herbert's, motion for re- as costs of court, $ 100,000 in exemplary damages and $ hearing, withdraw our opinion of August 3, 1995, and 30,000 in attorney's fees. Within six months after the substitute this opinion in its stead. entry of judgment, appellant and H&B filed a petition for Page 2 915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, **

writ of error seeking to set aside the default judgment. Section 162. Defendants have diverted and disposed of H&B was later dismissed as a party to this appeal on its the corpus of the trust and Plaintiff is entitled to seek own motion. exemplary damages of at least $ 100,000.00. Standard of Review Additionally, [**5] attached to and incorporated in the petition are invoices which identify the location of Review of a judgment by writ of error is proper only the jobsite as Houston, Texas and the business address of if (1) the petition is filed within six months of the signing Gulf Coast as Porter, Texas. of the judgment [*870] (2) by a party to the lawsuit (3) who did not participate in the trial. [**3] Tex. R. The allegations in Gulf Coast's petition are sufficient App. P. 45. Reversal of the judgment is proper only if to confer in personam jurisdiction. Section 162 of the error is apparent from the face of the record. Brown v. Property Code establishes that construction payments are McLennan County Children's Protective Servs., 627 trust funds for the purpose of the statute if the payments S.W.2d 390, 392 (Tex. 1982). In determining whether an were made to a contractor or to an officer under a con- error appears on the face of the record, a court may con- struction contract for the improvement of specific real sider all the papers on file in the appeal, including the estate in Texas. Tex. Prop. Code Ann. 162.001 (Vernon statement of facts. DSC Finance Corp. v. Moffitt, 815 1984). A contractor or an officer who receives trust S.W.2d 551, 551 (Tex. 1991). Legal and factual suffi- funds is a trustee of the funds. Tex. Prop. Code Ann. ciency of the evidence to support the judgment is an ap- 162.002 (Vernon 1984). Gulf Coast specifically put ap- propriate inquiry on writ of error. See Comstock Silver- pellant on notice that he was being sued for liability un- smiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex. App.--San der this chapter of the Property Code. These contentions Antonio 1995, no writ). are sufficient allegation of appellant's purposeful act or transaction in the State of Texas. The cause of action, Lack of In Personam Jurisdiction collection of money owed under the construction con- In point of error one, appellant contends that the trial tract, clearly arose out of the transaction. court erred in granting Gulf Coast a default judgment We do not believe that jurisdiction over appellant is against him because Gulf Coast's petition did not contain offensive to the ideals of fair play and justice. The Leg- jurisdictional allegations sufficient to confer in personam islature enacted section 162 as a [**6] special protec- jurisdiction on the trial court. tion for contractors and subcontractors in order to avoid Gulf Coast served appellant under Tex. R. Civ. P. the injustice of owners' and contractors' refusal to pay for 108. Allegations in petitions served under this rule must work completed. See American Amicable Life Ins. Co. v. be sufficient to meet due process requirements. Para- Jay's Air Conditioning & Heating, Inc., 535 S.W.2d 23, mount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 26 [*871] (Tex. Civ. App.--Waco 1976, writ ref'd 496 (Tex. 1988). Service of process [**4] under rule n.r.e.). The basic equities weigh in favor of in personam 108 does not, in and of itself, confer in personam juris- jurisdiction. See Siskind, 642 S.W.2d at 436. diction. Id. at 495. To pass constitutional muster, Gulf We overrule point of error one. Coast was required to allege (1) that appellant purpose- fully did some act or consummated some transaction in Lack of Proper Service Texas, (2) that the cause of action arose from or was In point of error two, appellant contends that the trial connected with such act or transaction, and (3) that the court erred in granting the default judgment because the assumption of jurisdiction by the trial court will not of- service of process was improper. Specifically, he com- fend "traditional notions of fair play and substantial jus- plains that the officer's return attached to the citation fails tice . . . ." Siskind v. Villa Foundation for Education, 642 to reflect service of the petition on him. S.W.2d 434, 436 (Tex. 1982). Rule 108 provides: In this case, Gulf Coast's pleadings set forth: Where the defendant is absent from the State, or is a Defendant, H&B promised to pay for the labor and nonresident of the State, the form of notice to such de- materials and has accepted all and has used and benefited fendant of the institution of the suit shall be the same as from installing them in construction contracts for Petrie prescribed for citation to a resident defendant; and such Stores Corporation. notice may be served by any disinterested person com- Although requested to do so, Defendant wholly petent to make oath of the fact in the same manner pro- failed and refused to pay as agreed. vided in Rule 106 hereof. Defendants, H&B and PAUL HERBERT as Presi- Tex. R. Civ. P. 108. Rule 106 provides: dent are trustees for construction draws to which Plaintiff is a beneficiary in accordance with Texas Property Code Page 3 915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, **

(a) Unless the citation or an order [**7] of the perstore, Inc. v. Haner, 877 S.W.2d 376, 379 (Tex. court otherwise directs, the citation shall be served by App.--Houston [1st Dist.] 1994, no writ); Popkowsi v. any person authorized by Rule 103 by Gramza, 671 S.W.2d 915, 917 (Tex. App.--Houston [1st Dist.] 1984, no writ). (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed We overrule point of error two. thereon with a copy of the petition attached thereto . . . . Legal Insufficiency Tex. R. Civ. P. 106. Legal insufficiency review requires that the court The return and affidavit of Sheriff Ocif, the officer consider only the evidence [*872] and inferences, in Connecticut who served appellant, states: when viewed in their most favorable light, that tend to That on March 21, 1994 at 11:30 a.m. I left a true support the finding, and disregard all evidence and in- and attested copy of the within and foregoing Original ferences to the contrary. Davis v. City of San Antonio, Petition Citation, Notice to Serve Non-Resident Defend- 752 S.W.2d 518, 522 (Tex. 1988); Stafford v. Stafford, ant with my endorsement thereon and a copy of the 726 S.W.2d 14, 16 (Tex. 1987). If there is any evidence Complaint with and in the hands of the within named of probative force to support the finding, the point must defendant PAUL HERBERT, 314 Ella Grasso Drive, be overruled and the finding upheld. Sherman v. First Torrington, CT. Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex. (Emphasis added.) Appellant contends that the affi- 1951). If there is more than a scintilla of evidence to davit is defective because it references a complaint, support the finding, the no evidence challenge fails. while Gulf Coast's pleading was denominated a petition. Stafford, 726 S.W.2d at 16. Strict compliance with the rules regarding service of citation is required to confer jurisdiction on the trial Misapplication [**10] of Funds court. See Primate Const., Inc. v. Silver, 884 S.W.2d 151, In point of error three, appellant contends that the 152 (Tex. 1994). In a writ of error attack, we indulge no trial court erred entering the default judgment because presumptions in favor of valid issuance, service, and there was no evidence that he misapplied trust funds. return [**8] of citation. Uvalde Country Club v. Mar- tin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). A defendant who defaults admits all allegations of In spite of these stringent requirements, we believe that facts except unliquidated damages. Stoner v. Thompson, the sheriff's return of citation reflects proper service on 578 S.W.2d 679, 684-85 (Tex. 1979). Appellant admitted appellant. by default the existence of the contract, the performance by Gulf Coast, the refusal to pay, the fact that he is a We disagree that Woodall v. Lansford, 254 S.W.2d trustee of the construction funds for the benefit of Gulf 540, 543 (Tex. Civ. App.--Fort Worth 1953, no writ) Coast under section 162 of the Property Code, and that supports appellant's challenge of the return. In that case, he diverted and disposed of the corpus of the trust. The the return stated that the sheriff had served a copy of the allegations admitted by default in the context of Gulf citation on the defendant, but it omitted any reference to Coast's reference to section 162 suffice to establish that the petition. Nor does Primate Const., 884 S.W.2d at appellant misapplied the trust funds. 152, mandate a finding of defective return. The return of service preprinted form in that case recited that the of- Quantum Meruit ficer served Plaintiff's Original Petition, which statement was inaccurate. The citation accurately reflected that the In point of error five, appellant contends that the tri- defendant was served with Plaintiff's Second Amended al court erred in granting the default judgment because Petition, the first pleading which made the defendant a there was no evidence to support an award of damages party. In both of these cases, the return's deviation from based on quantum meruit. absolute accuracy was much more pronounced than in Quantum meruit is an equitable remedy which does this case. not arise out of a contract, but is independent of it. Vortt The return we are reviewing merely refers to the Exploration Co. v. Chevron U.S.A., 787 S.W.2d 942, 944 original petition as a complaint, a term clearly synony- (Tex. 1990). Generally, a party [**11] may recover un- mous with petition. The fact that the original petition is der quantum meruit only where there is no express con- referred [**9] to as a complaint does not make it any tract covering the services or materials furnished. Id. In less clear that appellant was served with the appropriate this case, appellant admitted the elements of Gulf Coast's documents. Even strict compliance does not require such quantum meruit claim by default. Further, appellant's absolute obeisance to the minutest detail. See Boat Su- Page 4 915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, **

admission by default of the existence of an express con- Although appellant admitted by default that he in- tract renders this issue moot. tentionally or knowingly misapplied trust funds in viola- tion of section 162 of the Texas Property Code, appellee We overrule point of error five. did not plead or present any evidence to show that the [*873] extent of appellant's knowing conduct was so Exemplary Damages egregious as to warrant exemplary damages. Further- In point of error four, appellant contends that appel- more, no evidence was presented by appellee to support lee failed to present evidence to support the award of the amount of exemplary damages awarded. exemplary damages. Although a default judgment has Because there was no hearing on the issue of exem- the effect of admitting all matters properly alleged, if plary damages, we sustain point of error four, and re- damages are unliquidated or not proved by an instrument mand to the trial court for appellee and appellant to pre- in writing, the prevailing party must present evidence on sent (1) evidence regarding the extent of appellant's in- damages. Tex. R. Civ. P. 243; Holt Atherton Indus., Inc. tentional conduct; and (2) evidence regarding the [**13] v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (court rendering reasonableness of the amount of exemplary damages default judgment must hear evidence of unliquidated requested. damages) Unliquidated claims include exemplary dam- ages. First Nat'l Bank of Irving v. Shockley, 663 S.W.2d We reverse the part of the judgment that awards pu- 685, 689 (Tex. App.--Corpus Christi 1983, no writ). nitive damages and remand the issue of punitive damag- Thus, to sustain an award of additional damages in a es only. Tex. R. App. P. 81(b)(1); see Alvarado v. Reif, default judgment, appellees must both plead knowing 783 S.W.2d 303, 305 (Tex. App--Eastland 1989, no writ) conduct and present evidence that [**12] the extent of (in absence of a record on the issue of unliquidated appellant's knowledge warrants additional damages. See damages following a no-answer default judgment, rever- Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 534 sal and remand on this issue is required). The remainder (Tex. App.--San Antonio 1988, writ denied) (punitive of the judgment is affirmed. damages are not regarded as admitted by default in a /s/Adele Hedges DTPA action). In addition, an exemplary damages award must be reasonably proportioned to actual damages. Al- Justice amo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). The trial court must consider several factors to Justices Hutson-Dunn and Mirabal also sitting. determine whether an award of exemplary damages is Judgment rendered and opinion delivered reasonable. See id. Page 1

Caution As of: Mar 30, 2015

DOROTHY L. HIGGINBOTHAM AND JOHN G. HIGGINBOTHAM, Petitioners, v. GENERAL LIFE AND ACCIDENT INSURANCE COMPANY, ET AL., Re- spondents

No. C-7641

SUPREME COURT OF TEXAS

796 S.W.2d 695; 1990 Tex. LEXIS 121; 34 Tex. Sup. J. 16

October 10, 1990, Delivered

PRIOR HISTORY: [**1] From Tarrant County 12:01 p.m. that day was during business hours. We fur- Second District. ther [**2] hold that the trial court's order was effective to amend the officer's return. We reverse the court of appeals judgment and remand this cause to it for further JUDGES: C. L. Ray, Justice. Dissent by Chief Justice proceedings. Thomas R. Phillips joined by Justices Cook, Hightower Dorothy and John Higginbotham sued General Life and Hecht. and National Benefit for the refusal to pay for Dorothy's medical expenses alleged to have been covered by in- OPINION BY: RAY surance policies issued by those companies. When the insurers failed to answer, the trial court rendered default OPINION judgment against them. The return on the citations for [*695] OPINION the two defendants read substantially the same: RAY, Justice. The issue in this cause is whether the Received this citation the 18 day of March, 1986, at record reflects proper service of citation on General Life 8:07 o'clock a.m. Executed [*696] at Fort Worth, and Accident Insurance Company and National Benefit within the county of Tarrant, state of Texas, on the 18 Life Insurance Company, both domestic insurance com- day of March, 1986, at 12:01 o'clock p.m., by summon- panies. The return on both defendants' citations stated ing the within named corporation, Gen. Life & Accident that they were served "on the 18 day of March, 1986 at Ins. by delivering to Joyce Brown, Presi- 12:01 o'clock p.m." The trial court rendered default dent-Vice-President-Registered Agent-, in person of the judgment against both defendants. After hearing the mo- said Gen. Life & Accident Ins. at 3900 SFwy a true copy tions for new trial presented by both defendants, the trial of this citation together with the accompanying copy of court expressly concluded that service was proper under plaintiff's original petition, having first endorsed on same former article 3.64 of the Insurance Code, allowing ser- the date of delivery. vice "at the home office of such company during busi- On the citation return for General [**3] Life the ness hours." The court of appeals reversed the trial court words "registered agent" were circled. The citation re- judgment, concluding that there was no indication in the turn for National Benefit had its name in the appropriate record that 12:01 p.m. was during defendants' business blanks but did not have any words circled. hours. 750 S.W.2d 19. We hold that an express finding by the trial court necessarily included the finding that Page 2 796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 34 Tex. Sup. J. 16

The insurance companies filed motions for new trial and National Benefit each admitted they actually re- asking that the default judgments be set aside. They ceived citation. The officer's return, direct testimony and failed to specifically raise the defect that 12:01 p.m. was circumstantial evidence indicated that Joyce Brown was not expressly recited to have been during business hours, a clerical employee who took the citations during regular but they did complain that Joyce Brown was not an of- business hours. ficer or registered agent and that service was improper. The record shows literal compliance with a method At the time of service in 1986, article 3.64 of the of service provided by the statute. The only apparent Insurance Code provided the following methods for ser- defect is that the officer's return did not adequately recite vice of process on domestic insurance companies: such method of service. Neither insurance company pointed out nor expressly complained about such defect Process in any civil suit against any "domestic" before the trial court. The trial court has express authori- company, may be served only on the president, or any ty to allow amendment of the return to reflect the service active vice president, or secretary, or general counsel that was actually had. See Tex. R. Civ. P. 118. Since the residing at the city of the home office of the company, or record affirmatively shows service of citation, and [**6] by leaving a copy of same at the home office of such the trial court in a formal order has found [*697] the company during business hours. facts that constitute the service that was had, we see no Insurance Code, ch. 491, § 1, art. 3.64, 52d Leg., point in requiring the trial judge to sign a separate order 1951 Tex. Gen. Laws 868, 920, repealed by Act of Apr. labeled "Order Granting Amendment of Return." The 21, 1987, ch. 46, § 12, 70th Leg., 1987 Tex. Gen. Laws order signed by the judge in the record is tantamount to 79, 88. an order amending the return. The trial court conducted a hearing on the motions Our holding in this case is consistent with the one for new trial. [**4] The affidavits by vice presidents opinion in which we have construed rule 118. In London of both companies supporting the respective motions for v. Chandler, 406 S.W.2d 203 (Tex. 1966), petitioner new trial stated "someone received citations and rather claimed that a default judgment was invalid because the than following the proper procedure, mistakenly placed citation failed to state the date of issuance, and stating them in the claim file." The motions themselves con- the date of issuance was an express requirement under tained identical allegations that "through someone's er- the rules of civil procedure. We held that the mere failure ror, these petitions were erroneously placed in the claim to note the date of issuance did not make the citation file of Mr. and Mrs. Higginbotham, rather than forward- invalid or the service of the citation ineffective. We stat- ed to the corporate officers who then forwarded them to ed this was "made clear by Rule 118 which provides for an attorney for the filing of an answer." The trial court amendment of citations." Id. We then noted that the cita- could properly take judicial notice that 12:01 p.m. on tion showed the date of sealing and stamping, the date of March 18, 1986 was an early afternoon on a Tuesday that delivery to the sheriff, and date of service. Since the rec- was not a statutory holiday. Tex. R. Civ. Evid. ord showed a permissible period when the citation must 201(b),(c). There was testimony that Joyce Brown was have been issued, we held that the "failure of the clerk to an employee of both insurance companies who worked note the date of issuance on the [**7] citation did not in the office during the relevant time. In the order over- result in any prejudice to petitioner." Id. In London, as in ruling the motion for new trial, the trial court expressly the present case, there was no order as such expressly found: amending the citation or citation return. However, the return established that service oc- The record and express finding of the trial court al- curred at the offices of the defendants and the proof at ready establish the amendment of the incorrect or in- the hearing reinforced that fact, and it was also proven complete recitation on the return. If that alleged defect that Ms. Brown, while not a "registered agent," was an had been properly raised before the trial court, it "might employee of these domestice [sic] insurance companies. have been immediately cured by amendment," and the This [**5] meets the requirement of Insurance Code appellate court should not have reversed the default Article 3.64 to serve such a company inter alia" . . . by judgment to require the trial court to expressly correct it. leaving a copy of same at the home office of such com- See generally Crain v. Griffis, 14 Tex. 358, 363 (1855). pany during business hours." Service was proper and the Because the record affirmatively demonstrated a proper Court acquired jurisdiction. form of service and contained an order tantamount to formal amendment of the return of citation, the record The trial court, finding that service was proper under was sufficient to show valid service. the quoted provision of the statute, necessarily also found that service was made "during business hours." The evi- Our holding in this case should not be mistaken as a dence in the record supported this finding. General Life retreat from our line of cases holding that the record of Page 3 796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 34 Tex. Sup. J. 16

service supporting a default judgment must show strict a strict compliance with the provided mode of service." compliance with the rules governing service of process. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). See, e.g., McKanna v. Edgar, 388 S.W.2d 927 (Tex. This showing must be made from the record that was 1965); Eagle Life Ins. Co. v. George, 473 S.W.2d 311 actually before the trial court when the default judgment (Tex.Civ.App. - Beaumont 1971, [**8] writ ref'd). We was signed, [**10] unless the record is amended pur- adhere to our rule that "failure to affirmatively show suant to Texas Rule of Civil Procedure 118. See, e.g., strict compliance with the Rules of Civil Procedure ren- Cox Marketing, Inc. v. Adams, 688 S.W.2d 215, ders the attempted service of process invalid and of no 217-18(Tex. App. -- El Paso 1985, no writ)(cost and effect." Uvalde Country Club v. Martin Linen Supply supersedeas bonds signed by defendant's president can- Co., 690 S.W.2d 884, 885 (Tex. 1985). not establish validity of service on signer since neither bond was on file when default judgment signed). Most of these opinions addressing the requirement that the record show strict compliance are writ of error The return of service on the two defendants in this attacks on default judgments. In such cases there is no case was as follows: record of service other than the citation return, and its PL. 12 recitations, taken as true, must show strict compliance with service requirements. We are not to be understood OFFICER'S RETURN FOR CORPORATIONS as holding that the citation return alone in this case Received this Citation the 18 day of March, 1986, at would have been sufficient to show valid service. Our 807 o'clock A.M. Executed at Ft. Worth, within the holding in this case is restricted to situations in which County of Tarrant, State of TX, on the 18 day of March, there is a record (such as the evidence at the hearing on 1986, at 1201 o'clock P.M., by summoning the within motion for new trial) showing strict compliance with a valid method of service and an order expressly amending named corporation, Natl. Benefit Life Ins. Co. by deliv- the return or that is tantamount to an order amending the ering to Joyce Brown at 3900 S. Fwy. President -- Vice-President -- Registered Agent --, in person, of the return of citation. said Natl. Benefit Life Ins. Co. a true copy of this cita- We reverse the judgment of the court of appeals and tion together with the accompanying copy of plaintiff's remand the cause to that court for it to consider the de- original petition, having first indorsed on same the date fendants' other points of error not previously addressed. of delivery. PL. 13 DISSENT BY: [**9] PHILLIPS OFFICER'S RETURN FOR CORPORATIONS DISSENT Received this Citation the 18 day of March, 1986, at DISSENTING OPINION 807 o'clock A.M. Executed at Ft. Worth, within the County of Tarrant, State of [**11] TX, on the 18 day of Thomas R. Phillips, Chief Justice dissenting. March, 1986, at 1201 o'clock P.M., by summoning the within named corporation, Gen. Life & Accident Ins. by I dissent. The court's holding in this case is incon- delivering to Joyce Brown Registered Agent -, in person, sistent with settled Texas authority regarding the suffi- of the said Gen. Life & Accident Ins. at 3900 S. Fwy. a ciency of service in default judgments. true copy of this citation together with the accompanying When a defendant alleges defective service in an copy of plaintiff's original petition, having first indorsed appeal from a default judgment, the ordinary presump- on same the date of delivery. tions supporting the validity of the judgment do not ap- Both of these returns are defective, as they do not, ply. As we explained in Flynt v. City of Kingsville, 125 on the record in this case, affirmatively reflect compli- Tex. 510, 82 S.W.2d 934 (1935): ance with any applicable service statute. [*698] On a direct attack . . . the usual presumption of These defendants were amenable to service under at service because of the recital in the judgment, "that de- least two statutes. The first is article 2.11 of the Texas fendants though duly and legally cited to appear and Business Corporation Act, which provides that a domes- answer, came not but wholly made default," does not tic corporation which maintains a registered agent within obtain, and the error resulting from the absence in the the state may be served by delivering process to the record of the necessary showing necessitates a reversal president, any vice president, or the registered agent of of the judgment. the corporation. The return of service on National Bene- fit Life states that delivery of process was made on Joyce Thus, it is "the established law of this State that it is im- Brown, but it does not state whether she was the presi- perative and essential that the record affirmatively show dent, a vice president, or the registered agent of that de- Page 4 796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 34 Tex. Sup. J. 16

fendant. As neither the petition nor the citation supply the hearing on motion for new trial, such this necessary information, the service [**12] does not "post-judgment" evidence cannot supply necessary in- satisfy article 2.11. formation which was not in the record when the judg- ment was signed. See Cox, 688 S.W.2d at 218. Because The return of service on General Life and Accident the face of the record does not reflect proper service, and Insurance Company, on the other hand, is regular on its because the Higginbothams made no attempt to amend face, since it [*699] states that Joyce Brown is the the record under Rule 118, the companies are entitled to registered agent of that defendant. Recitations in the of- a new trial. ficer's return have been held to be prima facie evidence of proper service. See National Med. Enterprises of Tex- These rules, while complicated, have been devel- as, Inc. v. Wedman, 676 S.W.2d 712, 715 (Tex. App. oped by our courts to protect the rights of all litigants. As 1984, nor writ); contra NBS Southern, Inc. v. The Mail we explained in Finlay v. Jones, 435 S.W.2d 136, 138-39 Box, Inc., 772 S.W.2d 470 (Tex. App. -- Dallas 1989, no (Tex. 1968): writ). However, in its motion for new trial, General Life established by uncontroverted evidence that Ms. Brown The two basic judicial decisions a trial judge must make was not its registered agent, and the trial court so found before rendering and entering a default judgment are (1) in its findings of fact and conclusions of law. Thus, nei- that the court has jurisdiction of the subject matter and ther defendant was properly served under article 2.11. the parties to the suit, and (2) that, on the record, the case [**15] is ripe for judgment. These decisions cannot The second possible statute under which service was possibly be clerical because the court has no more sol- authorized was article 3.64 of the Texas Insurance Code, emn judicial obligation than that of seeing that no litigant then in effect but now repealed. That statute provided is unjustly saddled with a judgment in the absence of that service could be effected on a "domestic" life, health notice and a hearing. and accident insurance company by serving process "on- ly on the president, or any active vice president, or sec- Today, the court changes these rules. It deems the retary, or general counsel residing at the home [**13] trial court's explanation of its ruling, based on testimony office of the company, or by leaving a copy of same at offered at the hearing on defendant's motion for new the home office of such company during business hours." trial, as "tantamount to an order amending the return of The Higginbothams argue that service was properly ef- citation" under Texas Rule of Civil Procedure 118. The fected on both defendants under this statute. If so, such court's sole authority for this remarkable holding is Lon- proper service was not reflected in the officer's returns. don v. Chandler, 406 S.W.2d 203 (Tex. 1966). This reli- Joyce Brown's position was not designated on National ance is misplaced. London cited Rule 118 only to explain Benefit's return, and nothing in the petition or citation that the availability of amendment demonstrates that a demonstrates that she met one of the applicable catego- technical defect in a citation does not render service ries for accepting service. And although she was desig- thereunder absolutely void. [*700] Id. at 204. Neither nated as registered agent on the return of service on London nor any other Texas case has ever suggested that General Life, the evidence presented to and accepted by a citation or return may be amended by implication. By the trial court demonstrated that this statement was false. its terms, the rule obviously contemplates a physical Hence, the only remaining avenue of service under the substitution of a corrected instrument into the record. statute was by leaving process at the home office. Noth- See, e.g., Mylonas v. Texas Commerce Bank -- West- ing in the return on either defendant reflects that "3900 wood, 678 S.W.2d 519 (Tex. App. -- Houston [14th Dist.] S. Fwy" was the home office of either company, nor is [**16] 1984, no writ). At the most, it might conceiva- such information supplied by the citation. The plaintiffs' bly be expanded to encompass an affidavit from the of- original petition stated as follows: ficer who committed the error. See generally Zaragoza v. de la Paz Morales, 616 S.W.2d 295, 296 (Tex. Civ. App. Defendants are domestic insurance companies with -- Eastland 1981, no writ)(on rehearing). If the court de- home offices in Tarrant County, Texas, and registered to sires to change Rule 118, it should do so by amendment, conduct business as insurance companies in the state of not by a tortured reading of a prior opinion. Texas. Defendants may be served process at their [**14] address, 3900 South Freeway, Fort Worth, Texas 76110. I would not so cavalierly alter Texas law. In light of the Higginbothams' failure to establish valid service, I Since an "address" is not necessarily a home office, would affirm the judgment of the court of appeals and the recitals in the petition fall short of supplying the nec- remand the cause for trial. I therefore find it unnecessary essary proof that service was effected on defendants at to discuss whether the court of appeals erred in its hold- their home office, as the statute requires. Although the ing that the Higginbothams were required to establish on trial court made a finding of fact that this address was the the face of the record that the time of service was in fact home office, apparently based on evidence presented at during business hours, or whether the insurance compa- Page 5 796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 34 Tex. Sup. J. 16

nies established a right to new trial under the Craddock Tex. 388, 133 S.W.2d 124 (1939). standards. Craddock v. Sunshine Bus Lines, Inc., 134 | | Caution As of: April 7, 2015 5:46 PM EDT

Holt Atherton Industries, Inc. v. Heine Supreme Court of Texas June 17, 1992, DELIVERED No. D-0562

Reporter 835 S.W.2d 80; 1992 Tex. LEXIS 75; 35 Tex. Sup. J. 881

HOLT ATHERTON INDUSTRIES, INC., PETITIONER to set aside the judgment and for a new trial. The v. ROY HEINE, AND WIFE, KITTY HEINE, appellate court affirmed the judgment. On writ of error, RESPONDENTS the court held that because petitioner did not allege any facts supporting its conclusory allegations that its failure Prior History: [**1] ON APPLICATION FOR WRIT OF to answer was not the result of conscious indifference ERROR TO THE COURT OF APPEALS FOR THE on its part or the part of its agent, petitioner was not THIRTEENTH DISTRICT OF TEXAS entitled to set aside the judgment. The court held that the evidence was insufficient for the amount of lost Core Terms profits awarded to respondents because it was not based on one complete calculation. Therefore, the court affirmed the order denying the motion to set aside the lost profits, bulldozer, trial court, damages, no evidence, default judgment, reversed the lost profit award, and calculation, ref'd, default judgment, contracts, new trial, remanded the case for a full hearing under Tex. R. Civ. estimated, questions, repairs, no writ, profits, Brick, trial P. 243 on the amount of lost profits. judge, unliquidated damages, court of appeals, legal insufficiency, measuring, conscious indifference, Outcome allegations, inferences, warranty The court affirmed the order upholding the order denying Case Summary petitioner corporation's motion to set aside a default judgment because petitioner did not allege facts Procedural Posture showing its failure to answer was not due to conscious indifference on its or its agent's part. The court reversed Petitioner, a corporation, applied for writ of error to the the award of lost profits to respondents, business Court of Appeals for the 13th District Court (Texas) that owners, because the amount was not based on one affirmed the order from the trial court denying its motion complete calculation and remanded the case for a to set aside the default judgment in favor of respondents, hearing on the amount. owners of a business, and for a new trial, and that affirmed the award of lost profits to respondents on their LexisNexis® Headnotes contract and warranty claims arising from a delay in repairing a bulldozer. Civil Procedure > Judgments > Pretrial Judgments > General Overview Overview Civil Procedure > ... > Pretrial Judgments > Default & Petitioner corporation's predecessor delayed in Default Judgments > Default Judgments repairing the bulldozer of respondent owners of a Civil Procedure > ... > Pretrial Judgments > Default & business because of a dispute about a warranty. After Default Judgments > Relief From Default the bulldozer was repaired, respondents sued petitioner by serving its agent on contract, warranty, and business Civil Procedure > Judgments > Relief From Judgments > claims. When petitioner failed to answer, the trial court General Overview granted respondents' motion for a default judgment, Civil Procedure > ... > Relief From Judgments > Excusable awarded them lost profits, and denied petitioner's motion Mistakes & Neglect > Mistake 835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1

Civil Procedure > Judgments > Relief From Judgments > Contracts Law > ... > Types of Damages > Compensatory Motions for New Trials Damages > General Overview Torts > ... > Commercial Interference > Prospective HN1 A default judgment should be set aside and a new Advantage > General Overview trial ordered in any case in which [1] the failure of the defendant to answer before judgment was not Torts > ... > Types of Damages > Compensatory intentional, or the result of conscious indifference on his Damages > General Overview or her part, but was due to a mistake or an accident; provided [2] the motion for a new trial sets up a HN5 The correct measure of damages is lost net profit, meritorious defense and [3] is filed at a time when the not gross profits. granting thereof will occasion no delay or otherwise Civil Procedure > Trials > Bench Trials work an injury to the plaintiff. Civil Procedure > ... > Standards of Review > Substantial Civil Procedure > ... > Pretrial Judgments > Default & Evidence > General Overview Default Judgments > Relief From Default HN6 In a nonjury trial, where no findings of fact or Civil Procedure > Judgments > Relief From Judgments > conclusions of law are filed or requested, it will be General Overview implied that the trial court made all the necessary Civil Procedure > Judgments > Relief From Judgments > findings to support its judgment. When a statement of Motions for New Trials facts is brought forward, these implied findings may be HN2 When applying the Craddock test, the trial court challenged by factual or legal sufficiency points. looks to the knowledge and acts of the defendant as Civil Procedure > ... > Standards of Review > Substantial contained in the record before the court. Where factual Evidence > General Overview allegations in a movant's affidavits are uncontroverted, it is sufficient that the motion for new trial and HN7 In determining a legal sufficiency question, a court accompanying affidavits set forth facts which, if true, must consider only the evidence and inferences that would satisfy the Craddock test. However, conclusory tend to support the finding, and disregard all evidence allegations are insufficient. and inferences to the contrary. If there is more than a scintilla of evidence to support the finding, the no Civil Procedure > Pleading & Practice > Pleadings > evidence challenge fails. Answers

Civil Procedure > ... > Pretrial Judgments > Default & Contracts Law > ... > Types of Damages > Compensatory Default Judgments > Relief From Default Damages > General Overview Criminal Law & Procedure > ... > Crimes Against Persons > HN3 When a defendant relies on his or her agent to file Assault & Battery > General Overview an answer, he or she must demonstrate that both he or she and his or her agent were free of conscious Criminal Law & Procedure > ... > Assault & Battery > Simple indifference. Offenses > General Overview

Torts > ... > Commercial Interference > Contracts > General Civil Procedure > Judgments > Pretrial Judgments > Overview General Overview Torts > ... > Types of Damages > Compensatory Civil Procedure > ... > Pretrial Judgments > Default & Damages > General Overview Default Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & HN8 Recovery for lost profits does not require that the Default Judgments > Default Judgments loss be susceptible of exact calculation. However, the injured party must do more than show that they suffered HN4 Once a default judgment is taken on an some lost profits. The amount of the loss must be unliquidated claim, all allegations of fact set forth in the shown by competent evidence with reasonable petition are deemed admitted, except the amount of certainty. What constitutes reasonably certain evidence damages. A court rendering a default judgment must of lost profits is a fact intensive determination. As a hear evidence of unliquidated damages. Tex. R. Civ. P. minimum, opinions or estimates of lost profits must be 243. based on objective facts, figures, or data from which the Page 2 of 10 835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1

amount of lost profits can be ascertained. Although Civil Procedure > Judgments > Pretrial Judgments > supporting documentation may affect the weight of the General Overview evidence, it is not necessary to produce in court the Civil Procedure > ... > Pretrial Judgments > Default & documents supporting the opinions or estimates. Default Judgments > General Overview

Contracts Law > Breach > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments HN9 The bare assertion that contracts are lost does not Civil Procedure > Trials > Judgment as Matter of Law > demonstrate a reasonably certain objective General Overview determination of lost profits. Civil Procedure > ... > Standards of Review > Substantial Contracts Law > ... > Types of Damages > Compensatory Evidence > General Overview Damages > General Overview Torts > ... > Commercial Interference > Prospective HN13 After a default judgment is granted, the trial court Advantage > General Overview must hear evidence of unliquidated damages. Tex. R. Civ. P. 243. However, as a practical matter, in an Torts > Remedies > Damages > General Overview uncontested hearing, evidence of unliquidated damages HN10 Recovery of lost profits must be predicated on is often not fully developed. This is particularly true one complete calculation. when the trial judge expresses a willingness to enter judgment on the evidence that has been presented. Contracts Law > ... > Types of Damages > Compensatory Therefore, when an appellate court sustains a no Damages > General Overview evidence point after an uncontested hearing on Torts > ... > Commercial Interference > Prospective unliquidated damages following a no-answer default Advantage > General Overview judgment, the appropriate disposition is a remand for a Torts > Remedies > Damages > General Overview new trial on the issue of unliquidated damages.

HN11 The court does not sanction any one method for Counsel: FOR PETITIONER: Caldwell, Mr. G. Wade, determining lost profits. However, once a party has ATT 003621020, 512/227-7591, Martin, Drought & chosen a particular method for measuring their lost Torres, Inc., 2500 NationsBank Plaza, 300 Convent profits, they must provide a complete calculation. Street, San Antonio, TX 78205-3789. Golightly, Mr. Michael, ATT 008109500, 512/349-4900, Klein & Klein, Civil Procedure > Judgments > Pretrial Judgments > General Overview 70 N.E. Loop 410, Suite 800, San Antonio, TX 78216. Simmons, Ms. Rebecca, ATT 018370890, Civil Procedure > ... > Pretrial Judgments > Default & 512/554-5500, Cox & Smith Incorporated, 2000 NBC Default Judgments > General Overview Bank Plaza, 112 East Pecan Street, San Antonio, TX Civil Procedure > ... > Pretrial Judgments > Default & 78205. Default Judgments > Default Judgments Civil Procedure > Judgments > Relief From Judgments > FOR RESPONDENTS: Griffin, Mr. David C., ATT General Overview 008456950, 512/573-5500, Houston, Marek & Griffin, Civil Procedure > Judgments > Relief From Judgments > 120 Main Place, Suite 600, P.O. Box 2329, Victoria, TX Motions for New Trials 77902-2329. Sheppard, Ms. Cynthia T., ATT Civil Procedure > ... > Standards of Review > Substantial 020245500, 512/573-5500, Houston, Marek & Griffin, Evidence > General Overview 120 Main Place, Suite 600, Post Office Box 2329, Victoria, TX 77902-2329. Griffin, Jr., Mr. John, ATT HN12 As a general matter, when the court sustains a no 008460300, 512/573-5500, Houston, Marek & Griffin, evidence point of error after a trial on the merits, the 120 Main Place, Suite 600, Post Office Box 2329, court renders judgment on that point. Tex. R. App. P. Victoria, TX 77902. 81(c). Texas courts view an appeal from a default judgment somewhat differently than an appeal from a Judges: Cook, Doggett trial on the merits. In part, this is because an adjudication on the merits is preferred in Texas. Opinion by: Eugene A. Cook Page 3 of 10 835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1

Opinion Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). The rule is: [*82] OPINION HN1 A default judgment should be set aside and a new This case presents two questions: 1) whether the trial trial ordered in any case in which [1] the failure of the court abused its discretion in denying the motion of defendant to [**4] answer before judgment was not defendant [**2] Holt Atherton Industries, Inc. to set intentional, or the result of conscious indifference on his aside default judgment and for new trial; and 2) whether part, but was due to a mistake or an accident; provided there is any evidence to support recovery of lost profits. [2] the motion for a new trial sets up a meritorious We hold that the trial court did not abuse its discretion in defense and [3] is filed at a time when the granting denying the motion for new trial and that the evidence is thereof will occasion no delay or otherwise work an legally insufficient to support recovery of lost profits. injury to the plaintiff. Therefore, we affirm in part and reverse in part the judgment of the court of appeals. 797 S.W.2d 250. Craddock, 133 S.W.2d at 126; Bank One, Texas, N.A. v. Moody, S.W.2d (Tex. 1992). In January 1987, Roy and Kitty Heine took their HN2 When applying the Craddock test, the trial court bulldozer to Holt Machinery Company for repairs under looks to the knowledge and acts of the defendant as an alleged oral warranty. Holt Machinery did not contained in the record before the court. Strackbein v. recognize the oral warranty. The bulldozer remained in Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984). Where the possession of Holt Machinery but it was not being factual allegations in a movant's affidavits are repaired because Holt Machinery did not recognize the uncontroverted, it is sufficient that the motion for new warranty and the Heines did not agree to pay for repairs. trial and accompanying affidavits set forth facts which, if In August of 1987, Holt Machinery merged into Holt true, would satisfy the Craddock test. Cliff v. Huggins, Atherton Industries, Inc. Holt Atherton then merged into 724 S.W.2d 778, 779 (Tex. 1987); Strackbein, 671 B.D. Holt Company. In September of 1987, the Heines S.W.2d at 38-39. However, conclusory allegations are agreed to pay for the repairs to their bulldozer. In March insufficient. Folsom Investments, Inc. v. Troutz, 632 1988, the Heines brought this action against B.D. Holt, S.W.2d 872, 875 (Tex. App.--Fort Worth 1982, writ ref'd B.D. Holt Co., and Holt Co. of Texas alleging violations n.r.e.).HN3 of the Deceptive Trade Practices Act (Tex. Bus. & Com. Code [**3] §§ 17.41-17.63), breach of express and [*83] When a defendant relies on his agent to file an implied warranties, breach of contract, negligence, and answer, he [**5] must demonstrate that both he and his tortious interference with business relations. In July agent were free of conscious indifference. Harris v. 1988, the Heines' Second Amended Original Petition Lebow, 363 S.W.2d 184, 186 (Tex. Civ. App.--Dallas added Holt Atherton as a defendant and was properly 1962, writ ref'd n.r.e.). Because Stevenson Atherton served on Holt Atherton's registered agent, Stevenson was Holt Atherton's registered agent, Holt Atherton Atherton. In August 1988, the trial court rendered default must show that Stevenson Atherton's failure to answer judgment against Holt Atherton due to its failure to was due to a mistake or accident rather than intentional appear and answer. The Heines severed their cause of or due to conscious indifference. action against Holt Atherton to obtain a final judgment. Subsequently, the trial court stayed the actions against The evidence introduced by Holt Atherton in support of the other defendants pending the outcome of this its motion for new trial was uncontroverted by the appeal. Holt Atherton moved to set aside the default Heines. Therefore, the trial court could accept this judgment and for new trial. The trial court denied Holt evidence as true and apply the Craddock requirements. Atherton's motion, and the court of appeals affirmed. The only evidence Holt Atherton presented to the trial 797 S.W.2d 250. court to negate intentional disregard or conscious indifference was the affidavit of Stevenson Atherton, I. which states:

A trial court's discretion in determining whether to grant The failure of the corporation to file an answer herein a new trial after the court renders a default judgment was due to accident and mistake due to the complete must be referenced to the guiding rule set out in lack of any knowledge as to the facts or circumstances Page 4 of 10 835 S.W.2d 80, *83; 1992 Tex. LEXIS 75, **8

involved in this cause. Holt Atherton Industries, Inc. has [**8] Holt Atherton argues that there is no evidence never done any business with Roy or Kitte [sic] Heine, supporting the trial court's award of damages for lost nor repaired any type of equipment nor provided any profits. "HN6 In a nonjury trial, where no findings of fact type of service of any kind to either Roy or Kitte [sic] or conclusions of law are filed or requested, it will be Heine. The corporation [**6] known as Holt Atherton implied that the trial court made all the necessary Industries, Inc. has not been actively involved in the findings to support its judgment." Burnett v. Motyka, 610 operation of a business that repairs heavy equipment of S.W.2d 735, 736 (Tex. 1980) (citing Goodyear Tire and any type during the time period set forth in the Heine's Rubber Co. v. Jefferson Construction [*84] Co., 565 [sic] lawsuit. S.W.2d 916 (Tex. 1978); Lassiter v. Bliss, 559 S.W.2d 353 (Tex. 1978)). When, as in this case, a statement of Holt Atherton argues that its motion and affidavit facts is brought forward, these implied findings may be established that it failed to answer due to an accident or challenged by factual or legal sufficiency points. mistake. Atherton's statement that no answer was filed Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. "due to accident and mistake" is merely a conclusory 1989); Burnett, 610 S.W.2d at 736. HN7 In determining allegation. There is no explanation of the nature of the a legal sufficiency question, a court must consider only mistake. The factual allegations only serve to set up a the evidence and inferences that tend to support the meritorious defense. There are no factual allegations finding, and disregard all evidence and inferences to supporting the first part of the Craddock test. The the contrary. Best v. Ryan Auto Group, Inc., 786 S.W.2d essence of Holt Atherton's evidence is that it did not file 670, 671 (Tex. 1990); King v. Bauer, 688 S.W.2d 845, an answer because Stevenson Atherton did not think 846 (Tex. 1985). If there is more than a scintilla of Holt Atherton could possibly be held liable. evidence to support the finding, the no evidence challenge fails. Stafford v. [**9] Stafford, 726 S.W.2d The trial court did not abuse its discretion in denying the 14, 16 (Tex. 1987); Kindred v. Con/Chem, Inc., 650 motion because it could have concluded, based on the S.W.2d 61, 63 (Tex. 1983). evidence before it, that Holt Atherton's failure to answer was intentional or due to conscious indifference. There HN8 Recovery for lost profits does not require that the was no support given to the allegation of mistake or loss be susceptible of exact calculation. White v. accident. Because we hold that the first element of the Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. Craddock test was not satisfied, we do not reach [**7] 1983); Southwest Battery Corp. v. Owen, 131 Tex. 423, the other two elements. 115 S.W.2d 1097, 1098 (1938). However, the injured party must do more than show that they suffered some II. lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. White, HN4 Once a default judgment is taken on an 651 S.W.2d at 262; Southwest Battery, 115 S.W.2d at unliquidated claim, all allegations of fact set forth in the 1098. What constitutes reasonably certain evidence of petition are deemed admitted, except the amount of lost profits is a fact intensive determination. As a damages. Morgan v. Compugraphic Corp., 675 S.W.2d minimum, opinions or estimates of lost profits must be 729, 731 (Tex. 1984). A court rendering a default based on objective facts, figures, or data from which the judgment must hear evidence of unliquidated damages. amount of lost profits can be ascertained. See, e.g., TEX. R. CIV. P. 243; see Morgan, 675 S.W.2d at 731. Pena v. Ludwig, 766 S.W.2d 298, 304 (Tex. App.--Waco The trial court, in this case, held a hearing and 1989, no writ); Frank B. Hall & Co. v. Beach, Inc., 733 determined that the Heines suffered damages in the S.W.2d 251, 258 (Tex. App.--Corpus Christi 1987, writ amount of $ 159,665 including $ 120,000 for lost profits. ref'd n.r.e.); Keller v. Davis, 694 S.W.2d 355, 357 (Tex. 1 App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.);

1 The trial court's judgment includes the $ 120,000 as "Loss of Income Due to Absence of Dozer." Holt Atherton notes that HN5 the correct measure of damages is lost net profit, not gross profits. See Turner v. PV Int'l Corp., 765 S.W.2d 455, 465 (Tex. App.--Dallas 1988, writ denied per curiam, 778 S.W.2d 865 (Tex. 1989)); Copenhaver v. Berryman, 602 S.W.2d 540, 544 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). However, read most favorably to the Heines, the record indicates that the trial court's judgment is based on an amount the court determined remained after the Heines had paid out expenses. Therefore, the court applied the correct measure of damages. To avoid confusion in this opinion, we refer to the $ 120,000 award as "lost profits." Page 5 of 10 835 S.W.2d 80, *84; 1992 Tex. LEXIS 75, **9

Automark of Texas v. Discount [**10] Trophies, 681 suggested that Mrs. Heine could be more helpful S.W.2d 828, 830 (Tex. App.--Dallas 1984, no writ). because she kept the books for the Heines. Mrs. Heine Although supporting documentation may affect the testified that she could not say what their lost profits weight of the evidence, it is not necessary to produce in were without looking [**12] [*85] at their books. When court the documents supporting the opinions or the judge asked what the Heines showed as profits on estimates. See, e.g., Pena, 766 S.W.2d at 304; Keller, their income tax returns for 1985 or 1986, the years 694 S.W.2d at 357. 2 preceding the year that Holt Atherton kept their bulldozer, Mrs. Heine did not know. However, Mr. Heine The Heines' testimony was the only evidence presented responded that their income tax return showed profits of concerning their lost profits and can be divided into two about $ 120,000. 3 Both Heines testified that in 1985, segments. First, Mr. Heine was examined by his they had two bulldozers that operated about half of the counsel. Then, the trial judge questioned both Heines. time because business was slow. Apparently the trial judge determined that one bulldozer working full-time When Mr. Heine was examined by his counsel, only one would earn as much in thirteen months as two bulldozers question was asked which touched on lost profits. The working half-time would earn in twelve months. relevant question and answer are: There are two problems with this analysis. First, the Q. Now as a result of the defendant keeping the dozer Heines never offered any evidence showing that there for eight months, did you lose out on $ 200,200 in lost was enough work to keep two bulldozers working income during that time period? full-time over the relevant thirteen month period. This is particularly significant here [**13] because the Heines A. Yes, sir, I did. testified that there had not been enough work in the preceding years to keep both bulldozers working Even if this testimony were otherwise sufficient, [**11] full-time. 4 Second, the Heines never showed that they lost income is not the correct measure of damages. See were entitled to recover lost profits for the entire thirteen supra note 1. Further, this testimony is legally insufficient month period. See Morgan, 675 S.W.2d at 731 (must because it does not provide any indication of how the show damages were caused by event sued on). The Heines determined what their lost profits were. See, total down time may have been thirteen months. e.g., Village Square, Ltd. v. Barton, 660 S.W.2d 556, However, according to Mr. Heine's testimony, Holt 559-60 (Tex. App.--San Antonio 1983, writ ref'd Atherton only kept the bulldozer for eight months before n.r.e.)(testimony stating only total amount of lost profits starting repairs. held legally insufficient); Frank B. Hall & Co., 733 S.W.2d at 259 (same). The court does not have any basis for In response to further questions by the trial judge, Mr. determining whether the damages were established Heine testified that the Heines lost several contracts with reasonable certainty or were based on pure because they did not have their bulldozer available. Mr. speculation. This question and answer are legally Heine was not able to specify which contracts they lost, insufficient to prove lost profits. how many they lost, how much profit they would have had from the contracts, or who would have awarded After the Heines' counsel completed his questions, the them contracts. The Heines could have supported their trial judge asked additional questions to determine what lost profits with testimony that they had lost out on the Heines' lost profits were and how the Heines specific [**14] contracts because they did not have their concluded that their lost income was $ 200,200. The bulldozer available. See Pace Corp. v. Jackson, 155 judge started out by questioning Mr. Heine. Mr. Heine Tex. 179, 284 S.W.2d 340, 349 (Tex. 1955). However, could not provide answers to the judge's questions but HN9 the bare assertion that contracts were lost does

We disapprove Automark of Texas, 681 S.W.2d at 830, to the extent that it holds the supporting records must he produced in court. 3 Although Mr. Heine was not on the witness stand when he made this statement, it was transcribed by the court reporter and appears in the statement of facts. 4 Mr. Heine testified "'85 was light; '86 was disastrous." Page 6 of 10 835 S.W.2d 80, *85; 1992 Tex. LEXIS 75, **14

not demonstrate a reasonably certain objective that point. TEX. R. APP. P. 81(c); Mobil Oil Corp. v. determination of lost profits. See Pace, 284 S.W.2d at Frederick, 621 S.W.2d 595, 596 (Tex. 1981); National 348-49; Pena v. Ludwig, 766 S.W.2d 298, 301-02 (Tex. Life and Accident Ins. Co. v. Blagg, 438 S.W.2d 905, App.--Waco 1989, no writ). 909 (Tex. 1969); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Texas courts view an appeal from a default The testimony elicited by the trial judge provides pieces judgment somewhat differently than an appeal from a of several different methods of calculating lost profits. trial on the merits. In part, this is because an adjudication However, the Heines were not able to provide evidence on the merits is preferred in Texas. See, e.g., In re supporting one complete calculation. HN10 Recovery T.B.S., 601 S.W.2d 539 (Tex. Civ. App.--Tyler 1980, no of lost profits must be predicated on one complete writ). calculation. See, e.g., Fleming Mfg. Co. v. Capitol Brick, Inc., 722 S.W.2d 399, 402 (Tex. 1986)(evidence legally HN13 After a default judgment is granted, the trial court sufficient to support lost profits; did not discuss must hear evidence of unliquidated damages. TEX. R. evidence), on remand, 734 S.W.2d 405 (Tex. Civ. P. 243. However, as a practical matter, in an App.--Austin 1987, writ ref'd n.r.e.)(evidence held uncontested hearing, evidence of unliquidated damages factually insufficient to support lost profits; detailed is often not fully developed. This is particularly true evidence shows what was in the record for the Supreme when the trial judge expresses a willingness to enter Court to consider as part of no evidence review; judgment on the evidence that has been presented. demonstrates a complete calculation of lost profits); Therefore, when an appellate court sustains a no Chemical Express Carriers, Inc. v. French, 759 S.W.2d evidence point after an uncontested [**17] hearing on [**15] 683, 687-88 (Tex. App.--Corpus Christi 1988, unliquidated damages following a no-answer default writ denied)(demonstrating a complete calculation of judgment, the appropriate disposition is a remand for a lost profits); Keller, 694 S.W.2d at 357 (same); Reliance new trial on the issue of unliquidated damages. Universal Inc. v. Sparks Indus. Serv., Inc., 688 S.W.2d 890, 893-96 (Tex. App.--Beaumont 1985, writ ref'd We remand the cause to the trial court for a new trial on n.r.e.)(same); Village Square, Ltd., 660 S.W.2d at the issue of lost profits. 559-60 (statement of total lost profits without supporting analysis held legally insufficient); Frank B. Hall & Co., Eugene A. Cook, 733 S.W.2d at 259 (same); Barbier v. Barry, 345 S.W.2d 557, 563 (Tex. Civ. App.--Dallas 1961, no writ)(held no Justice evidence of lost profits because no evidence of Concurring and Dissenting Opinion by Justice Doggett supporting calculations). HN11 We do not sanction any joined by Justice Mauzy. one method for determining lost profits. Southwest Battery Corp., 115 S.W.2d at 1099. However, once a OPINION DELIVERED: June 17,1992. party has chosen a particular method for measuring their lost profits, they must provide a complete Concur by: LLOYD DOGGETT (In part) calculation. The Heines have not done that. Therefore, the evidence is legally insufficient to provide a [*86] Dissent by: LLOYD DOGGETT (In part) reasonable basis for determining the Heines' lost profits.

III. Dissent We affirm the court of appeals' holding that the trial CONCURRING AND DISSENTING OPINION court did not abuse its discretion in denying Holt Atherton's motion for new trial and reverse [**16] the In overturning a judgment for this family business, the court of appeals' holding that the evidence supporting majority imposes new obstacles to any commercial an award of lost profits was legally sufficient. HN12 As a enterprise that has wrongfully suffered a loss of profits. 1 general matter, when we sustain a no evidence point of Today's opinion abandons our well established rules error after a trial on the merits, we render judgment on governing review of legal sufficiency of the evidence

1 In burdening small businesses like the one involved here, the majority continues an unfortunate trend of insensitivity to the realities of independent business. See Caller-Times Publishing Co. v. Trim Communications, Inc., 826 S.W.2d 576, n.4 (Tex. Page 7 of 10 835 S.W.2d 80, *86; 1992 Tex. LEXIS 75, **17

and disavows this particular businessperson's sworn finding, and disregarding all contrary evidence and testimony as totally worthless. Although I concur in that inferences. part of the judgment affirming liability, I dissent from the court's decision to ensure that lost profits stay lost. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992). Only when reasonable minds cannot differ [**18] While covered by a Holt Atherton repair warranty, in concluding that the evidence offered lacks probative a part broke on one of the two D-8 Caterpillar bulldozers force will it be held to constitute the legal equivalent of owned and operated by Roy and Kitty Heine. Instead of no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d providing prompt repairs, Holt Atherton allegedly left 61, 63 (Tex. 1983). Recognizing that where "more than them without the use of the bulldozer for about a year. a scintilla of evidence [**20] [supports] the trial court's Before granting the Heines a default judgment, the trial finding, the no evidence challenge fails," at S.W.2D court appropriately heard evidence on their unliquidated at, the majority misapplies the standard and implicitly damages including lost profits. See Morgan v. creates new requirements for what constitutes a Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). "scintilla" in the context of lost profits. Roy calculated lost income to be $ 200,200, based on To support a default judgment in Capitol Brick, Inc. v. the days the machine was incapacitated and also on Fleming Mfg. Co., 722 S.W.2d 399 (Tex. 1986), a small "several" lost land clearing contracts, one of which, the business gave evidence of its lost profits arising from O'Connor contract, was open-ended as to the amount loss of use of an inadequately repaired brick-making of work. He further testified that by charging $ 80 per machine. The court of appeals reversed on other hour for bulldozer work, he realized an "immediate nonevidentiary grounds. In reversing the judgment of profit" of about $ 30 to $ 40 per hour. Additionally, he the court of appeals, we addressed a previously described a job for other of his equipment, which was unconsidered no evidence challenge, finding that "the lost due to customer impatience with the extended record reflects more than a scintilla of competent delays resulting from breakdown of the bulldozer. His evidence to support the . . . lost profits." Id. at 402. The total figure included an adjustment "for the time that record there was strikingly similar to that here, as there might not have been anything." Referencing the indicated by the writing of the court of appeals on probable familiarity of experienced business people remand, addressing the remaining factual insufficiency with approximate [**19] costs and profit margins, the challenge: trial court inquired as to profits shown on their recent income tax returns. The Heines [*87] responded that in Sprott [its president] testified that . . . Capitol Brick's the year before the breakdown, they reported a profit of mold press which would have produced this particular about $ 120,000 by working both dozers full time for six ten inch brick was idle for 11 1/2 weeks; that during months. As the trier of fact, the trial judge found damages normal conditions the press would have produced some for lost profits in this lesser amount, rather than the l,750,000 [**21] bricks; and that these bricks would larger initial estimate. have sold for $ 120 per thousand, or some $ 207,000. On appeal, Holt Atherton urges that this testimony was Sprott also indicated a 25% net profit figure which "too speculative" and constituted no evidence to support translates into lost profits of $ 51,750. This was the only a finding of damages for lost profits. In reviewing a no evidence concerning Capitol Brick's unliquidated evidence point, we have recently written that damage claim. consideration must be limited to: Fleming Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405, only the evidence and inferences tending to support the 406 (Tex. App.--Austin 1987, writ ref'd n.r.e.). 2 [**22] Yet jury's finding, viewed most favorably in support of the today's opinion burdens businesses by disregarding 1992)(Doggett J., dissenting)(small business made easy prey for anticompetitive, monopolistic practices); Crim Truck & Tractor Co. v. Navistar Int'l Trans. Corp., 823 S.W.2d 591, 597 (Tex. 1992)(Mauzy, J., dissenting)(local dealer denied remedy for abuse by a frachisor). 2

Similarly, in Texas Gas Explor. v. Broughton Offshore, 790 S.W.2d 781, 789 (Tex. App.--Houston [14th Dist.] 1990, no writ), a party's uncontroverted testimony, based on his industry experience, regarding estimated profits from disabled equipment was held to constitute legally sufficient evidence. Page 8 of 10 835 S.W.2d 80, *87; 1992 Tex. LEXIS 75, **22

our prior writing, creating a higher evidentiary standard 263 (Tex. 1983); Davis v. Small Business Inv. Co. of for small service-oriented companies, and presuming to Houston, 535 S.W.2d 740 743 (Tex. Civ. conduct a factual sufficiency review on a no evidence App.--Texarkana 1976, writ ref'd n.r.e.) (victim must point of error. The majority considers essentially the present evidence from which factfinder can reasonably same factual questions previously deemed the function infer that some profit would have been made and of the court of appeals: 3 whether the market demand reasonably estimate the amount of loss). Similarly, would have supplied as much work as the Heines [**24] in Pace Corp. v. Jackson, 155 Tex. 179, 284 estimated, the certainty of specific contract prices, and S.W.2d 340, 348 (Tex. 1958), this court concluded that whether the second bulldozer could have handled the measuring lost profits is an inherently imperfect total market demand. S.W.2d at. undertaking. See also Pena v. Ludwig, 766 S.W.2d 298, 301 (Tex. App.--Waco 1989, no writ). Small service To negate the award of lost profits, the majority must businesses offering skillful operation of their equipment take something and call it nothing -- it must treat the are entitled to some latitude in measuring inexact lost Heines' sworn testimony, given in response to a series profits sustained from loss of use. Chemical Exp. of questions from the trial judge, as devoid of any legal Carriers, Inc. v. French, 759 S.W.2d 683, 687-88 (Tex. value. This contrived disposition results from the App.--Corpus Christi 1988, writ denied)(owner's impossibility of a remand to the court of appeals for a estimated lost profits for charter company's disabled factual insufficiency review that Holt Atherton has falled airplane legally sufficient). See also Texas Tool Traders, to request. Inc. v. Mosley Machinery Co., 422 S.W.2d 229(Tex. Civ. Denial of relief in this case has ramifications that extend App.--Waco 1967, no writ). to all commercial litigation [*88] in which profits are an issue. The majority begins by eroding the distinction we The majority's professed lack of "any basis for have long recognized between uncertainty as to the determining whether the damages were established occurrence of lost profits and uncertainty merely as with reasonable certainty or were based on pure [**23] to their exact amount. The former, but not the speculation," S.W.2d at, discounts the Heines' latter, is fatal to recovery. See, e.g., Southwest Battery response to the trial court's inquiry about how they Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 "calculated" their damages. They referenced hourly (Tex. 1938). charges, lost contracts, cost factors, and down-time adjustments. Estimations, when "given in terms of It then announces new requirements that a party must calculations, [constitute] more than [**25] conjecture, chose a particular method for measuring lost profits, speculation or guesswork" and must be evaluated by S.W.2d at and that "recovery of lost profits must be the finder of fact. Reliance Universal Inc. v. Sparks predicated on one complete calculation." Id. at . We Industrial Services, 688 S.W.2d 890, 895-96 (Tex. have previously declined to construct such inflexible App.--Beaumont 1985, writ ref'd n.r.e.). rules that could unfairly bar recovery: Though criticized by the majority for failing to explain It is impossible to announce with exact certainty any "that they had lost out on specific contracts," S.W.2d rule measuring the profits the loss for which recovery at, the Heines were not necessarily required to identify may be had. . . . A party who breaks his contract cannot specific, measurable, lost contracts because they were escape liability because it is impossible to state or prove an existing business with a history of profitability. 4 Such a perfect measure of damages. an operation ordinarily encounters lesser evidentiary hurdles to show lost profits already sustained than Southwest Battery Corp. 115 S.W.2d at 1099; accord would a business with little record of past earnings that White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, seeks to show future lost profits. See Barbier v. Barry,

Compare Capitol Brick, 734 S.W.2d at 407, in which the court of appeals on remand examined the factual questions of whether the market demand existed for the estimated production it would have produced if the machine had been working, the certainty of the estimated price, and whether the demand could have been met from existing inventory in determining that evidence presented was factually insufficient. 4

Page 9 of 10 835 S.W.2d 80, *88; 1992 Tex. LEXIS 75, **25

345 S.W.2d 557, 563 (Tex. Civ. App.--Dallas 1961, no affirmed. writ). Among the methods a party may use to calculate its lost profits is either a history of profitability or the Lloyd Doggett actual existence of lost contracts. Allied Bank West Loop v. C.B.D. Assoc., 728 S.W.2d 49, 54-55 (Tex. Justice App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). Justice Mauzy joins in this concurring and dissenting [**26] There is undoubtedly some legal evidence to opinion. support the Heines' lost profits damages. Since there is no factual insufficiency point of error requiring further Opinion delivered: June 17, 1992. review by the court of appeals, its judgment should be

Nor were they required to prove their previous profits "remained stable or [grew] to support award for lost profits in subsequent years." Martin v. Lou Poliquin Enterprises , Inc., 696 S.W.2d 180, 187 (Tex. App.-- Houston [14th Dist.] 1985, writ ref'd n.r.e.). Page 10 of 10 Page 1

Caution As of: Mar 30, 2015

HUNT OIL COMPANY, et al., Petitioners, v. WILLIS MOORE, TRUSTEE, Re- spondent

No. C-1219

SUPREME COURT OF TEXAS

639 S.W.2d 459; 1982 Tex. LEXIS 324; 25 Tex. Sup. J. 476

July 21, 1982

PRIOR HISTORY: [**1] From Henderson judgment tracked the Partial Summary Judgment [**2] County Twelfth District. and then ordered that Hunt Oil pay Moore the sum of $377,058.52 together with 9% interest. The judgment denied all other relief not expressly granted. COUNSEL: Ralph B. Shank, Dallas, Texas, for Peti- Moore and Hunt Oil filed separate appeals. Hunt tioners. Oil appealed from the trial court's order terminating the lease, vesting title in Moore and awarding damages Edward Kliewer, Jr., Dallas, Texas, for Respondent. based on the accounting. Moore filed a motion to dismiss Hunt Oil's appeal. Moore alleged that the Partial Sum- OPINION BY: PER CURIAM mary Judgment was in fact a final appealable judgment from which Hunt Oil should have perfected its appeal. OPINION Thus, Moore alleged, Hunt Oil did not timely perfect its [*459] Willis Moore, Trustee, brought suit against appeal. The court of appeals granted Moore's motion Hunt Oil Company and others (Hunt Oil) seeking to have and dismissed [*460] Hunt's appeal for want of juris- a lease declared terminated, to have cloud on title re- diction. 629 S.W.2d 260. moved, and to have title quieted in himself. Addition- The court of appeals relied on Ferguson v. Fergu- ally, Moore sought to recover damages and prejudgment son, 161 Tex. 184, 338 S.W.2d 945 (1960), in dismissing interest. Both parties filed Motions for Summary Judg- Hunt Oil's appeal. In Ferguson, the court ordered an ment. The trial court entered a "Partial Summary Judg- accounting be made and further ordered that one-half of ment" granting Moore's motion. This judgment de- the profits be paid to the plaintiff. This judgment was clared the lease terminated, quieted title in Moore and considered final and appealable because "there remains ordered the cloud be removed. The Partial Summary only the rendering of one-half of the profits over a defi- Judgment further ordered that Hunt Oil "render an ac- nite period of time. . . ." Id. at 338 S.W.2d at 947. counting to [Moore] for all oil, gas and other minerals produced . . . which is attributable to [Moore's interest]." As this Court held in Pan [**3] American Pe- Moore was awarded costs of the suit, but the judgment troleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. did not mention Moore's claim for prejudgment interest. 550, 324 S.W.2d 200 (1959), however, "a summary judgment which does not dispose of all parties and issues After the accounting was completed by Hunt Oil, in the pending suit is interlocutory and not appealable . . . Moore filed a Motion for Final Judgment. The court en- ." The "Partial Summary Judgment" entered in this case tered a Final Judgment on May 16, 1980. The final Page 2 639 S.W.2d 459, *; 1982 Tex. LEXIS 324, **; 25 Tex. Sup. J. 476

only established ownership in the leasehold estate and ble. Hunt Oil timely perfected its appeal from the Final ordered an accounting to be filed in the future. Any Judgment and the court of appeals erred in dismissing the award of damages based on the accounting necessarily appeal for want of jurisdiction. had to occur at a subsequent time. See Perkins v. Pursuant to Rule 438 of the Texas Rules of Civil Springstun, 557 S.W.2d 343 (Tex. Civ. App. -- Austin Procedure, we grant the writ of error and, without hear- 1977, writ ref'd n.r.e.). Further, the judgment did not ing oral argument, reverse the judgment of the [**4] address Moore's claim for prejudgment interest. court of appeals and remand the cause to the court of The Partial Summary Judgment did not dispose of appeals for consideration of the merits of the appeal. all issues, therefore, it was interlocutory and unappeala- Page 1

Caution As of: Mar 30, 2015

IN RE FRANK BOKELOH, GABRIELE BOKELOH AND JOHN DAUGHERTY REALTORS, INC., Relators

NO. 14-00-00366-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

21 S.W.3d 784; 2000 Tex. App. LEXIS 4326

June 7, 2000, Opinion Filed

PRIOR HISTORY: [**1] Appeal from 80TH I. FACTUAL AND PROCEDURAL BACKGROUND DISTRICT COURT, Harris County; Scott Link, Judge. In August 1998, the real parties in interest, Thomas and Denise Bousquet (the "Bosquets"), filed suit in the DISPOSITION: Petition for Writ of Mandamus 80th Judicial District Court of Harris County against conditionally Granted. relators, Frank Bokeloh, Gabriele Bokeloh, John Daugh- erty Realtors, Inc. and Maureen Boyd, for alleged mis- representations [**2] arising out of the sale of real es- COUNSEL: David A. Carp, James A. Dunn, J. Richard tate. The Bosquets encountered problems in their at- Hargis of Houston, TX, for Relators. tempts to obtain service of process on the relators and on March 18, 1999, the trial court notified them of its intent Thomas G. Bousquet of Houston, TX, for Respondent. to dismiss their case on March 29, 1999, for want of prosecution. Citing the absence of service or a filed an- JUDGES: Kem Thompson Frost, Justice. Panel consists swer as grounds for dismissal of the case, the trial court's of Justices Amidei, Anderson and Frost. notice informed the Bosquets that their case would be dismissed unless "a default judgment is signed, an an- OPINION BY: Kem Thompson Frost swer is filed, or service is accomplished." In response, they filed a verified motion to retain on March 29, 1999. OPINION The motion explained that they diligently had attempted [*786] ORIGINAL PROCEEDING to serve relators, who were now back in the United States after having been out of the country "for some time." 1 WRIT OF MANDAMUS The Bosquets claimed they needed additional time, not In this original proceeding, relators seek a writ of for delay, but to obtain service of process. They request- mandamus directing the trial court to vacate its May 4, ed the trial court to retain the case on the docket until 1999, order of reinstatement entered in the trial court June 28, 1999. cause number 98- 37222, styled Thomas Bousquet Jr., et ux. v. Frank Bokeloh, et ux. Relators contend the order of 1 Although the Bokelohs lived near London, reinstatement is void because the trial court's plenary England for some period of time, the other rela- power expired before the entry of the order. We agree tors/defendants John Daugherty Relators, Inc. and and conditionally grant the writ of mandamus. Maureen Boyd are residents of Houston, Harris County, Texas. The Bosquets offered no explana- Page 2 21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **

tion for their failure to obtain service on these (Tex. 1989). Mandamus relief is available if the trial parties. court abuses its discretion, either in resolving factual issues or in determining legal principles when there is no [**3] [*787] The trial court dismissed the case other adequate remedy by law. See Walker v. Packer, on March 31, 1999; however, the court clerk's notice of 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses the dismissal is postmarked April 29, 1999. The Bos- its discretion if "it reaches a decision so arbitrary and quets claim their counsel received it on May 3, 1999, and unreasonable as to amount to a clear and prejudicial error immediately contacted the trial court's administrative of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d staff to point out that they had filed a motion to retain 916, 917 (Tex. 1985). When alleging that a trial court before the dismissal. On May 4, 1999, the trial court re- abused its discretion in its resolution of factual issues, instated the case on its own motion. Thereafter, relators the party must show the trial court reasonably could have were served and answered the lawsuit. reached only one decision. See id. at 918. An abuse of Trial was set for April 3, 2000. In February 2000, discretion also occurs if the trial court clearly failed to relators moved the trial court to vacate its order of rein- analyze or apply the law correctly. See Walker, 827 statement, alleging the court did not have jurisdiction to S.W.2d at 840. enter it. On March 6, 2000, the Bosquets filed a response that also purported to be a sworn motion establishing the III. ANALYSIS OF THE ISSUES date their counsel first received actual knowledge of the The trial court entered its order of reinstatement dismissal (via the clerk's post card notice of dismissal more than thirty days after dismissing [**6] the case. and final judgment). The Bosquets, however, insisted Generally, a trial court loses plenary jurisdiction thirty there was no need for a hearing on the matter because the days after entry of final judgment. See generally TEX. R. trial court already had reinstated the case. The trial court CIV. P. 329b; see also Thermex Energy Corp. v. Rantec denied relators' motion to vacate the order of reinstate- Corp., 766 S.W.2d 402, 403 (Tex. App. --Dallas 1989, no ment, prompting them to file a petition for writ of man- writ). The Bosquets, relying on Texas Rules of Civil damus in this court. Relators claim the trial court's [**4] Procedure 165a and 306a, argue that the trial court's ruling attempting to reinstate the case is void, and ask jurisdiction was extended beyond the original period and, this court to compel the trial court to vacate its order of therefore, it had jurisdiction to reinstate the case. reinstatement. A timely and proper motion to reinstate extends the With the April 2000 trial setting fast approaching, trial court's plenary power until thirty days after the mo- relators moved for a continuance in the lower court. tion is overruled either by a written signed order or by When, four days before trial, the court below had not operation of law. See South Main v. Wittig, 909 S.W.2d ruled on that motion, relators filed an emergency motion 243, 244 (Tex. App.--Houston [*788] [14th Dist.] for a stay in this court, seeking relief from the imminent 1995, orig. proceeding) (citing TEX. R. CIV. P. 165a(3)). trial setting. 2 We stayed the trial court proceedings to Where, as here, a court dismisses a case for want of protect this court's jurisdiction pending our ruling on the prosecution, a party may file a motion to reinstate within petition for writ of mandamus. thirty days after the order of dismissal is signed or within the period provided by Rule 306a. See Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (explaining that the ELEVEN MONTHS AFTER REINSTATE- period provided by Rule 306a must begin within 90 days MENT OF THE CASE AND TWO BUSI- of judgment; no provision [**7] for notice received NESS DAYS BEFORE TRIAL TO CHAL- more than 90 days after judgment, TEX. R. CIV. P. LENGE THE TRIAL COURT'S REIN- 165a(3)). Because the trial court dismissed the Bosquets' STATEMENT ORDER BY MANDAMUS. case on March 31, 1999, a motion to reinstate was due by NEVERTHELESS, LACHES CANNOT April 30, 1999 - one day after the postmark on the notice CONFER JURISDICTION UPON A COURT of dismissal and three days before the Bosquets claim THAT HAS LOST JURISDICTION. SEE their counsel received it. The trial court signed an order DUBAI PETROLEUM CO. V. KAZI, 12 S.W.3d reinstating the case on May 4, 1999, after the original 71, 76 (TEX. 2000). period of jurisdiction had expired. The Bosquets never II. STANDARD OF REVIEW filed a motion to reinstate the case. Now, they contend their motion to retain, filed before the trial court dis- Mandamus is intended to be an extraordinary reme- missed the case, should be treated as a premature motion dy, available only in very limited circumstances [**5] to reinstate. Thus, they argue, their motion to retain ex- "involving manifest and urgent necessity and not for tended the trial court's plenary power under Rule grievances that may be addressed by other remedies." 165a(3). In addition, they claim the trial court had juris- Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 Page 3 21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **

diction to reinstate their case because their response to Perez, 926 S.W.2d at 427. 4 Therefore, the Perez court relators' motion to vacate the reinstatement order satisfies reasoned, a motion to reinstate extends the appellate Rule 306a(5). For reasons explained below, we reject timetables in the same way as a motion for new trial. both arguments. Perez, 926 S.W.2d at 426-27 [**10] (citing Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 A. Is the motion to retain the functional equiva- (Tex. 1986)). lent of a motion to reinstate? A prematurely filed motion to reinstate extends the 4 We recognize that the mere fact that the mo- appellate timetables and the trial court's plenary jurisdic- tion was overruled before the case was reinstated tion. [**8] See Perez v. Texas Employers' Ins. Ass'n, is not determinative. In the context of appellate 926 S.W.2d 425, 426 (Tex. App.-Austin 1996, no writ). timetables, a motion for new trial that has been At issue in Perez was whether the plaintiff's verified mo- overruled still serves the procedural functions of tion to reinstate, filed before the final judgment, was a motion for new trial: effective to extend the appellate timetables. See id. First, Rule 58 is not limited by its language to mo- the trial court signed an interlocutory order dismissing tions that are "live" when the final judgment is the plaintiff's case against two of the three defendants. rendered, although for jurisdictional purposes . . . See id. After the trial court denied the plaintiff's motions courts of appeals have engrafted such a require- to reinstate, the court granted a non-suit as to the third ment onto the rule by judicial interpretation. Oth- defendant, thereby making the judgment final. See id. er than [one case], in each of the cases in which The Perez court, construing former Texas Rule of Appel- the court engrafted the "live" pleading require- late Procedure 58(a), 3 held that a prematurely filed, ver- ment to the rule, the court ultimately held the mo- ified motion to reinstate extended the appellate timetable tion for new trial filed in the case was viable, and because it is a "proceeding relating to an appeal." 926 therefore could be considered as a premature mo- S.W.2d at 427. Observing that Rule 58 did not contain a tion. specific list of items that would extend the appellate timetable, the Perez court explained: We have not previously addressed this con- struction of Rule 58. Another court has declined We do not think the language in Rule 58 compels the to follow the [live pleading requirement], howev- exclusion of a verified motion to reinstate, whereas in- er. Harris County Hosp. Dist. v. Estrada, 831 terpreting Rule 58 to allow a prematurely filed motion to S.W.2d 876 (Tex. App.--Houston [1st Dist.] 1992, reinstate to extend the appellate timetables [**9] har- no writ). In Estrada, the court observed the poli- monizes with the general principle of liberally construing cy reasons for the rules concerning premature the rules of appellate procedure when possible. filings: "The Texas Supreme Court has twice en- acted rules to assure that cases are not dismissed 3 Rule 58(a) provided: because the motion for new trial was filed too Proceedings relating to an appeal need not be soon. Neither of those rules limits their applica- considered ineffective because of prematurity if a tion to 'live' pleadings. To require a 'live' pleading subsequent appealable order has been signed to here would defeat the purpose of those rules." We which the premature proceeding may properly be conclude that the better reasoned application of applied. Rule 58, more congruent with the Rule's purpose, is set forth in Estrada. The trial court was fully See White v. Schiwetz, 793 S.W.2d 278, 280 apprised of [the movant's] complaints in its mo- (Tex. App. -- Corpus Christi 1992, no writ). tion for new trial and the hearing on the motion, Much of former Rule 58(a) is now embodied in and the court rejected those arguments when it Texas Rule of Appellate Procedure 27.2, govern- reformed judgment [sic]. ing premature filings, and provides in pertinent part: Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 282 (Tex. 1994) The appellate court may treat actions taken (citations omitted) (interpreting former TEX. R. before an appealable order is signed as relating to APP. P. 58). an appeal of that order and give them effect as if they had been taken after the order was signed. [**11] TEX. R. APP. P. 27.2. [*789] Texas Rule of Civil Procedure 329b gov- erns motions for new trial. The rule extends the trial court's plenary power to thirty days after the overruling of any motion for new trial or motion to modify, correct, Page 4 21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **

or reform the judgment. Rule 329b does not include a the prayer addresses (i) whether the motion to re- specific list of items that operate to extend the appellate tain was a motion to reinstate and (ii) Rule timetable. Thus, in determining whether a pleading oper- 306a(4) relief. See Carroll v. Carroll, 580 S.W.2d ates to extend the trial court's plenary power under Rule 410, 413 (Tex. Civ. App.-Houston [1st Dist.] 329b, the issue is whether it seeks a new trial or consti- 1979, no writ) (petition for bill of review must tutes a motion to modify, correct, or reform a judgment. meet requisites). Unlike Rule 329b, however, Rule 165a, governing dis- While courts have broad discretion to interpret missal for want of prosecution, specifically provides that pleadings [**14] liberally, the interpretation must be filing a motion to reinstate extends the trial court's ple- reasonable and consistent with the nature and character nary jurisdiction. of the pleading at issue. To determine if the Bosquets' In considering whether the Bosquets' motion to re- motion to retain meets these standards, we again focus tain operated as a motion to reinstate, we recognize that on the text of Rule 165a(3), which states in part: the substance of a motion, not its title, determines the The clerk shall deliver a copy of the motion to the relief sought. See Surgitek v. Abel, 997 S.W.2d 598 (Tex. judge, who shall set a hearing on the motion as soon as 1999); see also TEX. R. CIV. P. 71 ("When a party has practicable. The court shall notify all parties or their at- mistakenly designated any plea or pleading, the court, if torneys of record of the date, time and place of the hear- justice so requires, shall treat the plea or pleading as if it ing. had been properly designated."). [**12] Therefore, in deciding this issue we do not focus on the title of the The court shall reinstate the case upon finding after Bosquets' motion but on its nature and purpose. a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but Rule 165a(3) provides that "a motion to reinstate was due to an accident or mistake or that the failure has shall set forth the grounds therefor and be verified by the been otherwise reasonably explained. movant or his attorney." TEX. R. CIV. P. 165a(3). The rule does not dictate the specific grounds the party TEX. R.CIV. P. 165a(3) (emphasis added). Rule should plead in the motion, nor does it require the motion 165a plainly requires notice and a hearing on a motion to to specifically state that the failure to respond was not reinstate. To accept the Bosquets' argument that the mo- intentional. See Gaylor v. Fluker, 843 S.W.2d 234, 236 tion to retain operated as a motion to reinstate, we would (Tex. App.--Houston [14th Dist.] 1992, no writ). It is not only have to overlook the true nature of the pleading clear, however, that when a party files a motion to rein- but also ignore the fact that the trial court failed to give state, the court must determine this issue at the hearing the requisite notice and failed to conduct the requisite on reinstatement. See id. hearing. The Bosquets [**15] point out that at the time the court entered the order reinstating the case, relators Here, the Bosquets' motion is verified and explains had not yet made an appearance as parties in the litiga- why service on the relators/defendants, though diligently tion and, therefore, were not prejudiced by the lack of attempted, had not been obtained. However, neither the notice and opportunity to be heard in response to the title nor the content of the motion makes any mention of motion. The Bosquets, however, point to nothing which reinstating a case that has been dismissed. Nor does the would suggest the motion to retain served the purpose of motion request a new trial, or propose by its terms to a motion to reinstate or that the trial court viewed it as modify, correct, or reform a judgment. If it did, then it such. 6 The record strongly suggests that by reinstating would not matter that it was filed before the dismissal; it the case sua sponte, the trial court was attempting to would be the [**13] functional equivalent of a motion correct what may have been an administrative error or for new trial or a motion to reinstate. Instead of seeking oversight in the dismissal of the case, and that it was this type of relief, however, the Bosquets' motion to re- taking such action on its own, not in response to any mo- tain simply asks the trial court not to [*790] dismiss tion. the case in the first place. 5 6 In fact, when the trial court entered its order 5 For similar reasons, the Bosquets' contention dismissing the Bosquets' claims, it effectively that their response to the request to vacate is, in overruled their motion to retain. reality, a bill of review, fails. The response con- tended the dismissal judgment had already been In support of their contention that the motion to re- vacated; the response did not attack the judgment; tain served as the functional equivalent of a motion to it did not allege the grounds required for a bill of reinstate, the Bosquets cite to Arguelles v. Kaplan, 736 review; it was not an original petition filed in a S.W.2d 782, 785 [**16] (Tex. App.--Corpus Christi separate cause; the substance was clearly a re- 1987, pet.ref'd n.r.e). In that case, the court treated the sponse to the motion to vacate reinstatement; and motion to reinstate, filed before dismissal was scheduled, Page 5 21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **

as a motion to retain. However, the point of error in Ar- reinstatement motion begins on the date the dismissal guelles addressed only the trial court's decision not to order is signed. See id. (citing TEX. R. CIV. P. 306a(1)). dismiss after giving notice of its intention to dismiss. 7 However, Rule 306a(4) and (5) provide a procedural The Arguelles court did not address the interpretation of remedy when more than twenty days have passed be- the motion. Instead, it merely held that, "the dismissal or tween the signing of the judgment of dismissal and the refusal to dismiss an action for want of prosecution is date a party receives the clerk's notice or otherwise ac- directed to the sound discretion of the trial judge, and his quires actual knowledge of the signing of the judgment. action will be reversed only upon a showing of an abuse Rule 306a(4) allows a party to establish the date it actu- of such discretion." Id. Under that standard, the trial ally received notice or acquired knowledge as the com- court did not need a motion to retain or a hearing to re- mencement of the plenary jurisdiction period. In this tain the case on the docket. case, however, [**19] the Bosquets failed to take the procedural steps necessary to establish the date they or 7 The trial court did hold a hearing on the mo- their counsel first received notice or acquired actual tion to reinstate, as required by Rule 165a(3). knowledge of the judgment. In the final analysis, we reject the notion that the Rule 306a(5) requires the party seeking to imple- Bosquets' motion to retain was the functional equivalent ment Rule 306a(4) to: of a motion to reinstate for two compelling reasons. [i] file a sworn motion; [**17] First, it did not address reinstatement by title, content, or relief sought. Second, and equally important, [ii] provide notice to the other parties; and we cannot countenance [*791] an argument that [iii] prove in the trial court the date upon which the would undermine the basic framework for determining party adversely affected first received the clerk's notice appellate timetables. The same logic that would allow us to interpret the Bosquets' motion to retain opposing dis- of judgment or acquired actual knowledge that the judg- missal as a motion to reinstate after dismissal would ment had been signed. open the door to arguments that any other pleading that If the trial court determines a date of notice no more opposes judgment in the first instance likewise operates than ninety days after the original judgment was signed, to extend the trial court's plenary power and the appellate then appellate deadlines and the period for the trial deadlines. Embracing this notion would contravene the court's plenary power commence from the date of notice rules that control the appellate timetables and create rather than the date the judgment was actually signed. confusion and uncertainty about when a trial court's ple- See TEX. R. CIV. P. 306a(4); TEX. R. APP. P. 4.2(a)(1). nary jurisdiction expires. The Texas Supreme Court has repeatedly recognized the importance of ensuring cer- Filing a motion that complies with the requirements tainty in computing appellate timetables, 8 and we will of Rule 306a invokes the trial court's jurisdiction for the not accept an argument that undermines this policy. limited purpose of determining the date of notice. See Memorial Hosp. v. Gillis, 741 S.W.2d 364, 365-66 (Tex. 8 See, e.g, Mafrige v. Ross, 866 S.W.2d 590, 1987); In re Simpson , 932 S.W.2d 674, 677 (Tex. 592 (Tex. 1993) ("Litigants should be able to App.--Amarillo 1996, no writ). [**20] To invoke the recognize a judgment which on its face purports trial court's jurisdiction to hold a hearing, the sworn mo- to be final, and courts should be able to treat such tion must set forth facts that create a prima facie case a judgment as final for purposes of appeal."). demonstrating the party did not receive the clerk's notice or acquire actual knowledge of the judgment within [**18] B. Did the trial court have limited juris- twenty days after the judgment was signed. See Carrera diction under Rule 306a? v. Marsh, 847 S.W.2d 337, 342 (Tex. App.--El Paso The Bosquets next argue that they established the 1993, orig. proceeding). If the sworn motion fails to al- date of notice or their first actual knowledge by incorpo- lege facts that would establish the application of Rule 306a(4), any [*792] order determining the date of rating a Rule 306a motion into a response they filed notice is void. See Gillis , 741 S.W.2d at 365-66; Simp- nearly a year after judgment. This action, they contend, gave the court jurisdiction to reinstate the case four days son , 932 S.W.2d at 678; see also Grondona v. Sutton, after their counsel received the clerk's notice of dismis- 991 S.W.2d 90 (Tex. App.--Austin 1998, pet. denied) (only part of a prima facie case alleged within the period sal. of plenary power; amendment to include full prima facie Rule 306a provides a mechanism to establish the case after plenary power expired failed to invoke the commencement of the court's plenary power where no- court's jurisdiction). As the Texas Supreme Court has tice is not received within twenty days of judgment. Rule explained: 306a(1) reaffirms that the thirty-day period for filing the Page 6 21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **

Compliance with the time periods prescribed by these cannot confer jurisdiction, by estoppel, on a court rules is a jurisdictional prerequisite. Unless a party es- that has lost power to act. See Thompson , 997 tablishes in the manner prescribed by the rule that he S.W.2d at 622. had no notice or knowledge [**21] of the judgment, [**23] Texas Rule of Appellate Procedure 4.2, the general rule prevails: a trial court's power to reinstate entitled "No Notice of Trial Court's Judgement in Civil a cause after dismissal expires thirty days after the order Case", states, "after hearing the [306a(5)] motion, the of dismissal is signed. trial court must sign a written order that finds the date when the party or the party's attorney first either received Memorial Hosp. of Galveston County v. Gillis, 741 notice or acquired actual knowledge that the judgment or S.W.2d 364, 365 (Tex. 1987) (emphasis added); see also order was signed." TEX. R. APP. P. 4.2(c) (emphasis Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d added). Failure to hold a hearing and make a finding 696, 697 (Tex. 1986) (per curiam) (effect of failure to once a prima facie case is established constitutes an comply with Rule 165a governing motions to reinstate abuse of discretion. See, e.g., Cantu , 878 S.W.2d at after dismissals for want of prosecution); Olvera v. 131-32 (requiring the trial court to hold a hearing and to Olvera, 705 S.W.2d 283, 284 (Tex. App. -- San Antonio make a finding in a written order when a party presents 1986, writ ref'd n.r.e.) (per curiam) (on mot. for reh'g) (a proof of the date of notice in trial court). The trial court movant under Rule 306a must not only file a sworn mo- signed no order finding the date the [*793] Bosquets tion, but also must obtain a hearing and present evidence or their attorney first received notice or acquired actual to support the motion). Here, the Bosquets failed to [i] knowledge of the order of dismissal. file a sworn motion, [ii] give notice of a hearing, [iii] present evidence in a hearing as to the date of their actual The Bosquets do not dispute the lack of any notice, knowledge or receipt of the court's notice, or [iv] obtain hearing or order but instead characterize the 306a(5) mo- an order with written findings, resetting the commence- tion as a "useless motion" under the facts of this case. ment of the period of plenary power. Cf. Thompson v. They argue that because the trial court reinstated the case Harco Nat. Ins. Co., 997 S.W.2d 607, 623 (Tex. on its own, there was no need to take further action as the App.-Dallas 1998, [**22] pet. denied) ("We reject any relief [**24] they sought already had been granted. contention that a trial court 'impliedly' grants relief under Nevertheless, Rule 306a clearly requires a motion, no- Rule 306a(4) if it grants a motion for new trial filed more tice, hearing and order to establish jurisdiction beyond than thirty days after the entry of a final judgment."). the original plenary power. Because the Bosquets did not follow the procedure mandated by that rule, they failed The Bosquets first endeavored to invoke Rule to establish a new date for the trial court's plenary power 306a(5) in their response to the relators' motion to vacate to commence. Based on this record, we can only con- the reinstatement order. This effort, however, did not clude that the trial court's jurisdiction expired thirty days come until nearly a year after the trial court signed the after March 31, 1999. On May 4, 1999, the date the trial dismissal order. 9 The Bosquets' response to the motion court issued its order reinstating the case, its jurisdiction to vacate reinstatement (which they claim was also a had expired, and it had no authority to act. Rule 306a motion that meets the requirements for a peti- tion for bill of review) neither requested a hearing nor C. Is the reinstatement order void? gave notice of one. The sole purpose of the sworn Rule 306a(5) motion is to establish the limited jurisdiction A judgment is void "when it is apparent that the necessary to hold the hearing. The Bosquets insisted court rendering judgment 'had no jurisdiction of the par- there was no need for a hearing under Rule 306a(5) be- ties, no jurisdiction of the subject matter, no jurisdiction cause the court already had granted the motion to rein- to enter the judgment, or no capacity to act as a court.'" state. However, a hearing and notice of that hearing are Id. (quoting Browning v. Placke, 698 S.W.2d 362, 363 essential to the validity of any Rule 306a(5) order. See (Tex. 1985)). The order of reinstatement was not merely Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994) invalid or voidable; it was void from its inception. See (orig. proceeding). There was no 306(a)(5) notice or Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). A hearing in this case. void order is entirely null within itself; it is not suscepti- ble [**25] to ratification or confirmation, and its nullity 9 Because the Bosquets failed to implement cannot be waived. See Guardianship of B.A.G., 794 Rule 306a(5), we do not address whether their S.W.2d 510 (Tex. App.--Corpus Christi 1990) (void effort was timely. The Bosquets claim that rela- judgment) (citing Easterline v. Bean, 121 Tex. 327, 49 tors are estopped to claim the reinstatement order S.W.2d 427, 429 (1932); American Universal Ins. Co. v. was void because relators continued to seek af- D.B. & B., Inc., 725 S.W.2d 764, 766 (Tex. App.--Corpus firmative relief in the trial court after the rein- Christi 1987, writ ref'd n.r.e.)). Holding a trial court's statement order was entered. However, the parties order void, when that same order may have led the par- Page 7 21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **

ties to believe all was well may seem unfair, 10 but just as ranted and, if necessary, shall issue to compel the court a trial court cannot act when it has no jurisdiction, a re- to vacate its void order. viewing court cannot find jurisdiction where none exists. We find the trial court's May 4, 1999 order reinstating IV. CONCLUSION the case is void. While the Texas Rules of Civil Procedure provide additional time to act for parties who do not receive 10 A combination of factors make the re- timely notice of final judgments, the Bosquets did not sult in this case seemingly harsh and unyield- take the procedural steps necessary to benefit from those ing. First, the dismissal was likely the result of rules. We cannot reasonably construe their motion to an administrative error or oversight by the retain as anything but a plea to keep the case on the trial court. Second, the trial court's sua sponte docket, a motion the trial court effectively over [*794] effort to remedy the error may have given the ruled in its dismissal order. Because the motion to retain Bosquets a false sense that no other action was cannot be deemed a prematurely filed motion to rein- necessary. Then, for nearly a year after the state, motion for new trial, or motion to modify, change, court entered the order of reinstatement, the [**27] or reform a judgment, the trial court's plenary Bosquets pursued the litigation, only to learn power was not extended. There was no notice and hear- on the eve of trial that their claims were dis- ing on the Bosquets' Rule 306a(5) contentions, and no missed after all and that the trial court's ear- order with factual findings. Consequently, there was no nest effort to revivify them was without effect. new date established for commencement of the trial However, the Bosquets are not without other court's plenary jurisdiction. These facts lead to the ines- possible remedies. They claim to have good capable conclusion that the trial court's plenary power grounds to pursue a bill of review. This may expired thirty days after it dismissed the case. Because well be, but in the current posture of the case, the trial court was without jurisdiction when it entered the procedural deficiencies are jurisdictional. the reinstatement order, that order is void. [**26] We conditionally grant relators' petition for writ of D. Is mandamus relief warranted? mandamus and direct the trial court to vacate its May 4, 1999, order of reinstatement. The writ will issue only if When a trial court erroneously reinstates a case after the trial court does not comply. the expiration of the court's plenary jurisdiction, man- damus will issue. See Estate of Howley , 878 S.W.2d 139 /s/ Kem Thompson Frost (Tex. 1994) (per curiam); see also South Main v. Wittig, Justice 909 S.W.2d 243, 244 (Tex. App.-Houston [14th Dist.] 1995, orig. proceeding). Having determined that the trial Petition Denied and Opinion filed June 28, 2000. court had no jurisdiction at the time it entered the order Panel consists of Justices Amidei, Anderson and reinstating the case, we find mandamus relief is war- Frost. | | Questioned As of: April 7, 2015 5:48 PM EDT

Irlbeck v. John Deere Co. Court of Appeals of Texas, Seventh District, Amarillo June 10, 1986 No. 07-85-0009-CV

Reporter 714 S.W.2d 54; 1986 Tex. App. LEXIS 7698

LARRY IRLBECK, D/B/A I & B FARMS, APPELLANT, v. appellee submitted its claim on the pleadings and JOHN DEERE COMPANY, APPELLEE affidavits, with appended instruments, with no objection and that the affidavit testimony admitted in court satisfied Subsequent History: [**1] Rehearing Denied July 7, the evidential hearing requirement. The court held that 1986. inadmissible hearsay admitted without objection had probative value that could be considered in determining Prior History: FROM THE DISTRICT COURT OF sufficiency. The court held that appellant's final points of OCHILTREE COUNTY; 84TH JUDICIAL DISTRICT; error were overruled because the alleged admissions NO. 7079; HONORABLE J. E. BLACKBURN, JUDGE. or stipulations of facts referred to by appellant were developed in a temporary injunction hearing. The court Core Terms held that it would only consider evidence before the trial court when the judgment was rendered and that it could not go to the record of another case to ascertain facts damages, evidentiary hearing, security agreement, not shown in the record of the case before it. default judgment, promissory note, no writ, foreclosure, default, hearsay, reasonable attorney's fees, Outcome installments, unliquidated, evidential, pleadings, combine, Holder The court affirmed the judgment of the trial court and held that there was not a complete absence of Case Summary admissible probative evidence of damages and that the evidence was not too weak to support the damages Procedural Posture awarded. The court held that the alleged admissions or stipulations in a statement of facts developed in a Appellant judgment debtor sought review of a default temporary injunction hearing were not in the appellate judgment from the District Court of Ochiltree County, record requiring the remaining three points of error to be 84th Judicial District (Texas), which decreed appellant's overruled. monetary liability to appellee tractor company and also granted the foreclosure of appellee's security interest liens on appellant's pledged collateral with an order of LexisNexis® Headnotes sale. Civil Procedure > ... > Costs & Attorney Fees > Attorney Overview Fees & Expenses > Reasonable Fees

Contracts Law > ... > Types of Damages > Compensatory Appellant judgment debtor challenged a default Damages > General Overview judgment entered by the trial court. Appellant asserted that the judgment was without the necessary evidential HN1 A claim of damages that is an unliquidated one, by support. The court affirmed the judgment and held that virtue of Tex. R. Civ. P. 243, requires the court to hear appellee tractor company's claim for damages was an evidence of damages. unliquidated one, which required a hearing on damages. However, the court held that the judgment was not Contracts Law > ... > Types of Damages > Compensatory rendered without an evidentiary hearing because Damages > General Overview 714 S.W.2d 54, *54; 1986 Tex. App. LEXIS 7698, **1

HN2 Affidavit testimony of damages admitted in court principal sum of $14,558.17 was for his purchase and satisfies the evidential requirement of Tex. R. Civ. P. security for the payment of a Case tractor. Each note 243. was payable in installments -- the first in six installments, and the second in eight installments -- of designated Criminal Law & Procedure > Sentencing > Imposition of [*56] amounts at designated times, and interest on Sentence > Evidence each past due installment accrued at the highest rate Evidence > ... > Statements as Evidence > Hearsay > permitted by law or 10% per annum, whichever was General Overview lower. Each instrument provided that if the note be in default, Irlbeck will pay all expenses, including HN3 Inadmissible hearsay admitted without objection reasonable attorney's fees, incurred in collection or shall not be denied probative value merely because it is otherwise. Each promissory note-security agreement hearsay. Tex. R. Evid. 802. contained its written assignment by Hansford Implement Company to John Deere Company. Civil Procedure > Appeals > Standards of Review > General Overview John Deere filed its action on 6 April 1984, outlining the transactions and alleging that as to each note, Irlbeck HN4 An appellate court will consider only evidence before the trial when the judgment was rendered. An has defaulted in his payments under the terms appellate court cannot go to the record of another case of the note and security agreement, and has for the purpose of ascertaining a fact not shown in the failed and refused to make payments although record of the case before it. repeated demands for payment have been made. Counsel: Messrs. Jody Sheets and Timothy D. Zeiger, Gassaway, Gurley, Sheets & Mitchell, Borger, Texas. Then, John Deere made this allegation: "As of February 14, 1984, defendant owed plaintiff $9,918.06 including Messrs. Jeff Levinger and Michael L. McCoy, all [**3] credits and offsets." John Deere prayed for Carrington, Coleman, Sloman & Blumenthal, Dallas, recovery from Irlbeck of the indebtedness described Texas. with pre-and post-judgment interest and reasonable attorney's fees, and for the foreclosure of its security Judges: Reynolds, C.J., and Dodson and Boyd, JJ. interest in the collateral, together with general relief.

Opinion by: REYNOLDS Citation was issued on the day the action was filed, and personal service was effected on Irlbeck on 16 April Opinion 1984. He neither appeared nor answered within the time allowed by law. [*55] Larry Irlbeck, d/b/a I & B Farms, perfected this Thereafter in June of 1984, John Deere moved the appeal from a default judgment decreeing his monetary court for default judgment. The motion was supported liability to John Deere Company, which was also granted by two affidavits, copies of Irlbeck's promissory notes the foreclosure of its security interest liens on Irlbeck's and security agreements, and copies of the filed pledged collateral with an order of sale. With five points financing statements. The motion carried the of error, Irlbeck challenges the evidential support for, certification that a copy of it was mailed to Irlbeck by and the foreclosure provision of, the judgment rendered. certified mail on 8 June 1984. Irlbeck did not respond to On the rationale to be expressed, the points will be the motion. overruled and the judgment will be affirmed. John Deere brought the action underlying this appeal to One of the affidavits was executed by Jack B. Holder, recover on two combination promissory notes and the Manager of Financial Services for John Deere. He security agreements Irlbeck executed and delivered to swore that he had personal knowledge of the facts Hansford Implement Company. One promissory stated, among which were that the appended note-security agreement in the principal sum of promissory notes and security agreements are true and $14,187.49 [**2] was for Irlbeck's purchase and security correct copies of Irlbeck's promissory notes and security for the payment of a New Holl combine; the other in the agreements; that John Deere is the owner and holder in Page 2 of 4 714 S.W.2d 54, *56; 1986 Tex. App. LEXIS 7698, **3

due course [**4] of the promissory notes; a liquidated claim within a literal reading [**6] of Rule 241, Texas Rules of Civil Procedure, to permit the court and that as of 21 May 1984, 1984, [sic] there is to assess damages without hearing evidence -- the now due by defendant Larry Irlbeck d/b/a I & B notes were in definite amounts payable in denominated Farms, to the plaintiff, on the debt set forth in amounts at designated times with a stated interest rate the original petition the sum of $10,181.90 after accruing upon nonpayment of an installment, and Irlbeck allowing all credits and offsets, with additional ceased to make payments. interest accruing at the rate of 10% or $2.79 per day thereafter. However, neither the notes nor the pleadings showed the credits and offsets which John Deere pleaded Irlbeck Continuing, Holder stated that "payments are overdue was allowed, and the pleadings did not state or even on the notes and defendant has refused to pay the sum indicate when default in payments occurred. Thus, the owing on the notes;" that to secure the sum owed, pleaded factual allegations and the instruments in Irlbeck gave to the holder of the promissory notes and writing were not sufficiently definite to enable the court security agreements a security interest in the New Holl to make an accurate calculation from them of the amount combine and in the Case tractor which has not been of principal and interest due on the notes. Moreover, the released; and that John Deere has retained the firm of reasonable attorney's fees provided by the instruments Carrington, Coleman, Sloman & Blumenthal to are by their very nature unliquidated damages. It follows represent it in the collection and had agreed to pay the that, as John Deere pleaded its cause of action, its HN1 attorneys a reasonable fee for their services. claim of damages was an unliquidated one which, by virtue of Rule 243, Texas Rules of Civil Procedure The other affidavit was executed by Michael L. McCoy, required the court to hear evidence of damages. an associate in the law firm. He detailed the Freeman v. Leasing Associates, Inc., 503 S.W.2d 406, qualifications and legal services furnished to express 408 (Tex.Civ.App. -- Houston [14th Dist.] 1973, no writ). the opinion that a reasonable attorney's fee for the And this result is [**7] not altered by John Deere's firm's services in this cause would be $250. pleaded allegation of the amount owed on a date certain "including all credits and offsets," for this allegation is a On 29 June 1984, the court, hearing John Deere's conclusion which, absent the factual allegations of motion for default [**5] judgment, and reciting Irlbeck's amounts and dates of payments on the notes, is default, John Deere's entitlement to default judgment, insufficient to enable the court to accurately calculate and the hearing of evidence, rendered judgment. By its the amounts due on the notes. Burrows v. Bowden, 564 judgment, the court decreed that John Deere recover of S.W.2d 474, 476 (Tex.Civ.App. -- Corpus Christi 1978, and from Irlbeck, d/b/a I & B Farms, the amount of no writ); Hall v. C-F Emp. Credit U., 536 S.W.2d 266, $10,181.90, together with the sum of $250 as 268 (Tex.Civ.App. -- Texarkana 1976, no writ). reasonable attorney's fees, with interest thereon at the rate of 10% per annum from the date of the judgment, Nevertheless, it cannot be successfully maintained, as and ordered the foreclosure of John Deere's security Irlbeck charges, that the judgment was rendered without interest liens on the New Holl combine and the Case an evidentiary hearing. This is for the reason that John tractor with the issuance of an order of sale. Deere submitted its claim to the court on the pleadings and affidavits, with appended instruments, to which no Irlbeck groups his first two points of error to present his objection was lodged. It has been held without central contention that the judgment is without the disapproval that HN2 affidavit testimony of damages necessary evidential [*57] support. Initially, he charges admitted in court satisfies the evidential requirement of the trial court with error in rendering the judgment Rule 243, supra. K-Mart Apparel Fashions Corp. v. without an evidentiary hearing on the unliquidated claim Ramsey, 695 S.W.2d 243, 247 (Tex.App. -- Houston which was not proved by an instrument in writing. [1st Dist.] 1985, writ ref'd n.r.e.). Secondly, he contends the evidence is legally and factually insufficient to support the judgment rendered. Still, in contending evidential support for the judgment is lacking, Irlbeck declares that the affidavits [**8] are Under this record, Irlbeck correctly states that John inadmissible under Rule 802, Texas Rules of Evidence, Deere's claim was unliquidated. Viewed objectively, because each statement in them is offered in evidence John Deere's pleading of its cause of action presented to prove the truth of the matter asserted. Irlbeck Page 3 of 4 714 S.W.2d 54, *57; 1986 Tex. App. LEXIS 7698, **8

misperceives the full import of Rule 802, which became reformation of the judgment. The error, Irlbeck alleges, effective before this action was filed. lies, in brief, in the rendered judgment's foreclosure decree which, by not specifying the amount owned on Although the rule initially states that hearsay is not each piece of equipment, allows foreclosure of a admissible except as provided by law, the second purchase money lien on the New Holl combine, an item sentence of the rule reads: "HN3 Inadmissible hearsay of exempt property, to pay nonexempt debts, particularly admitted without objection shall not be denied probative since he has paid the amount due on the combine. To value merely because it is hearsay." That the rule show these facts, Irlbeck refers to John Deere's alleged provides for hearsay admitted without objection to have admissions or stipulations of facts contained in a probative value sufficient to support a judgment was statement of facts developed in a temporary injunction forecast in Aquamarine Associates v. Burton Shipyard, hearing four months after the default judgment was 659 S.W.2d 820, 822 (Tex. 1983), and has become a rendered, and brought to this Court by John Deere's principle of law. K-Mart Apparel Fashions Corp. v. appeal in that matter under our cause no. Ramsey, supra; Aatco Transmission Co. v. Hollins, 682 07-84-0312-CV. S.W.2d 682, 685 (Tex.App. -- Houston [1st Dist.] 1984, no writ); Neidert v. Dozers, 681 S.W.2d 847, 848 Those alleged admissions or stipulations of facts were (Tex.App. -- Eastland 1984, no writ). not before the trial court when the default judgment was rendered, and, of course, they are not in the record of It seems accepted that at the hearing of evidence on an this appeal; but, Irlbeck represents, those later unliquidated claim after default, testimony of the total developed facts may be noticed by the authority of amount due under a written instrument is sufficient to State ex rel. Colleyville v. City of Hurst, 519 S.W.2d 698, support an award of that amount, [**9] BLS Limousine 701 (Tex.Civ.App. -- Fort Worth 1975, writ ref'd n.r.e.). Service v. Buslease, Inc., 680 S.W.2d 543, 547 However, the pronouncements of the Colleyville [**11] (Tex.App. -- Dallas 1984, no [*58] writ), and that such court are not that definite nor that inclusive, and Irlbeck's testimony may be supplied by an affidavit, albeit representation is untenable. containing otherwise inadmissible hearsay, when it is admitted without objection. K-Mart Apparel Fashions It is axiomatic that the HN4 appellate court will consider Corp. v. Ramsey, supra. The unobjected to affidavit only evidence before the trial when the judgment was testimony of Holder supported the amount awarded on rendered. Gulf Oil Corp. v. Southland Royalty Co., 478 the notes in this cause. Likewise, the affidavit testimony S.W.2d 583, 591 (Tex.Civ. App. -- El Paso 1972), aff'd, of the attorney, again containing otherwise inadmissible 496 S.W.2d 547 (Tex. 1973). And historically, the hearsay but being admitted without objection, sufficiently accepted rule of law is that an appellate court cannot go supported the award of attorney's fees. Neidert v. to the record of another case for the purpose of Dozers, supra. ascertaining a fact not shown in the record of the case before it. Victory v. State, 138 Tex. 285, 158 S.W.2d Given this situation and the standards of review 760, 763 (1942); Nolan v. Bettis, 577 S.W.2d 551, enunciated in Garza v. Alviar, 395 S.W.2d 821, 823 554-55 (Tex.Civ.App. -- Austin 1979, writ ref'd n.r.e.). (Tex. 1965), as applicable to Irlbeck's evidential point of Thus, since reference may not be made to the statement error, it cannot be said either that there is a complete of facts in the other appeal for an ascertainment of the absence of admissible, probative evidence of damages, facts, and appellate review must be confined to the or that the evidence is too weak to support the damages papers in this appeal by writ of error, McEwen v. awarded. Consequently, Irlbeck's first two points of Harrison, 162 Tex. 125, 345 S.W.2d 706, 711 (1961), error are overruled. which do not show the facts upon which Irlbeck's points depend, [**12] the points must be, and they are, With his third, fourth and fifth points of error, Irlbeck overruled. submits that if we find, as we have found, sufficient evidence before the trial court to support [**10] the The judgment of the trial court is affirmed. default judgment, then there is yet error calling for a

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Caution As of: Mar 30, 2015

CHRISTOPHER LEIGH JOHN, PETITIONER v. MARSHALL HEALTH SER- VICES, INC. AND HARRISON COUNTY HOSPITAL ASSOCIATION, INC. D/B/A MARSHALL REGIONAL MEDICAL CENTER, RESPONDENTS

NO. 00-0324

SUPREME COURT OF TEXAS

58 S.W.3d 738; 2001 Tex. LEXIS 86; 44 Tex. Sup. J. 1183

September 20, 2001, Delivered

SUBSEQUENT HISTORY: On remand at, Remanded the date the movant learned that judgment had been by John v. Marshall Health Servs., 91 S.W.3d 446, 2002 signed? The court of appeals answered both in the af- Tex. App. LEXIS 8018 (Tex. App. Texarkana, 2002) firmative and dismissed the appeal for want of jurisdic- tion. 2 We agree that the trial court's judgment was final PRIOR HISTORY: [**1] ON PETITION FOR and appealable, but not that the appeal was untimely REVIEW FROM THE COURT OF APPEALS FOR perfected. Accordingly, we reverse [**2] the judgment THE SIXTH DISTRICT OF TEXAS. of the court of appeals and remand the case to that court John v. Marshall Health Servs., Inc., 12 S.W.3d 888, for consideration of the merits. 2000 Tex. App. LEXIS 1215 (Tex. App. Texarkana, 2000) 1 Unless otherwise noted, all references to DISPOSITION: We thus conclude that the court of rules are to the Texas Rules of Civil Procedure. appeals erred by dismissing the appeal for want of juris- 2 12 S.W.3d 888. diction. Accordingly, the Court grants John's petition for Plaintiff Christopher Leigh John sued six defend- review, and without hearing oral argument, reverses the ants: Trinity Mother Frances Health System, Tom judgment of the court of appeals and remands the case to Cammack, and Trincare Inc. ("the Trinity defendants"); that court for consideration of the parties' other argu- Harrison County Hospital Association, Inc. and Marshall ments. Health Services ("the Marshall defendants"); and Dianna Taylor. John alleged fraud, breach of contract, and tor- tious interference. The trial court granted partial sum- OPINION mary judgment for the Marshall defendants on John's breach-of-contract claims. Shortly before trial, John [*739] PER CURIAM reached a preliminary settlement with the three Trinity There are two questions here. First: is a judgment defendants, but no final agreement was made and the rendered after the close of trial final and appealable if it Trinity defendants were not dismissed from the case. The does not expressly dispose of the plaintiff's claims other three defendants moved for a continuance because against defendants with whom the plaintiff was negoti- of uncertainty about the effect of the settlement on the ating settlement? Second: must a motion to extend trial. The trial court denied the [**3] motion, and the post-judgment deadlines under Rule 306a(5) of the Texas case proceeded to trial on John's claims against Taylor Rules of Civil Procedure 1 be filed within thirty days of and the Marshall defendants. John nonsuited Taylor dur- Page 2 58 S.W.3d 738, *; 2001 Tex. LEXIS 86, **; 44 Tex. Sup. J. 1183

ing the trial, and only his claims against the Marshall nor the notice of appeal were timely filed. 8 Accordingly, defendants were submitted to the jury. After the jury the court of appeals dismissed John's appeal for want of failed to reach a verdict, the trial court at first declared a jurisdiction. mistrial, then withdrew that ruling and granted the Mar- shall defendants' earlier motion for a directed verdict. 5 12 S.W.3d at 890. The Marshall defendants drafted and submitted a judg- 6 400 S.W.2d 893, 897-898 (Tex. 1966). ment, which the trial court signed on September 8. Enti- 7 866 S.W.2d 590, 592 (Tex. 1993). tled "Final Judgment", it recited the nonsuit of Taylor 8 12 S.W.3d at 891. and ordered that John take nothing against the Marshall We first consider whether the judgment was final. defendants. The judgment awarded costs against John Recently in Lehmann v. Har-Con Corp., [**6] we and contained a "Mother Hubbard" clause, that "all other observed that "the presumption that a judgment rendered relief not expressly granted in this judgment is denied." after a conventional trial on the merits is final and ap- The judgment did not mention the three settling Trinity pealable has proved fairly workable for nearly a century . defendants, and the record does not reflect whether their . . ." 9 John here argues that this presumption should not settlement was finalized. be rigidly applied to make judgments final contrary to The judgment was not filed by the clerk until Sep- litigants' reasonable expectations. We do not disagree tember 13. John did not receive the defendants' proposed with this argument in general, especially given today's draft until several days later, and never received written frequency of separate trials of parties and claims in a notice from the clerk that a final judgment had been single case, and bifurcated trials required in certain in- signed. 3 John first learned of the judgment [**4] in a stances. However, we believe the presumption is entirely telephone conversation with the clerk on September 30. appropriate in a case like this. John did not move for The clerk stated that the judgment had been signed Sep- separate trials; he went to trial against the only defend- tember 13. John filed a motion for new trial on October ants against whom he still wished to prosecute his 13, more than thirty days after the judgment was signed claims. The trial court and all of the parties were aware [*740] when such motions must ordinarily be filed. 4 of the pending settlement, and there is nothing to indicate Post-judgment deadlines may be extended under Rule that the trial court did not intend the judgment to finally 306a, but John did not file the requisite motion under dispose of the entire case. John did not move for dismis- Rule 306a(5) until December 10. After a hearing, the sal of his claims against the Trinity defendants or for an trial court agreed that John first learned of the judgment agreed judgment. Whether the judgment was final should on September 30, but that the Rule 306a(5) motion was not depend on one party's testimony that he did or did not filed too late, and therefore the time for filing a motion finalize a settlement with parties from whom he sought for new trial was not extended. On December 13, John no [**7] relief at trial. The Aldridge presumption fits filed a notice of appeal which was timely only if just such circumstances. post-judgment deadlines ran from September 30 instead of September 8. 9 39 S.W.3d 191, 199 (Tex. 2001). We next consider the Rule 306a issue. Rule 306a(1) 3 Rule 306a(3) provides in part: "When the fi- provides that the periods within which parties may file nal judgment or other appealable order is signed, various post-judgment motions and trial courts may ex- the clerk of the court shall immediately give no- ercise their plenary jurisdiction all run from the date the tice to the parties or their attorneys of record by judgment is signed. Rule 306a(3) requires clerks to noti- first-class mail advising that the judgment or or- fy parties or their attorneys immediately when a judg- der was signed." ment is signed. Rule 306a(4) provides the following ex- 4 TEX. R. CIV. P. 329b(a). ception to Rule 306a(1): [**5] On appeal, John argued that the judgment If within twenty days after the judgment or other was not final because it did not dispose of the claims appealable order is signed, a party adversely affected by against the Trinity defendants. The court of appeals held it or his attorney has neither received the notice required that because the judgment followed a conventional trial by paragraph (3) of this rule nor acquired actual on the merits and contained a "Mother Hubbard" clause, knowledge of [*741] the order, then with respect to it was presumed final, 5 citing this Court's opinions in that party all the periods mentioned in paragraph (1) shall North East Independent School District v. Aldridge 6 and begin on the date that such party or his attorney received Mafrige v. Ross. 7 The court of appeals further held that such notice or acquired actual knowledge of the signing, John's Rule 306a(5) motion should have been filed with- whichever occurred first, but in no event shall such [**8] in thirty days of the date he first learned of the judgment periods begin more than ninety days after the original and because it was not, neither the motion for new trial judgment or other appealable order was signed. Page 3 58 S.W.3d 738, *; 2001 Tex. LEXIS 86, **; 44 Tex. Sup. J. 1183

Rule 306a(5) prescribes the procedure for claiming 13 Green v. Guidry, 34 S.W.3d 669, 670 (Tex. this exception: App.--Waco 2000, no pet.) (per curiam); Gron- dona v. Sutton, 991 S.W.2d 90, 92 (Tex. In order to establish the application of paragraph (4) App.--Austin 1998, pet. denied) (per curiam); of this rule, the party adversely affected is required to Vineyard Bay Dev. Co. v. Vineyard on Lake prove in the trial court, on sworn motion and notice, the Travis, 864 S.W.2d 170, 172 (Tex. App.--Austin date on which the party or his attorney first either re- 1993, writ denied) (per curiam). ceived a notice of the judgment or acquired actual [**10] knowledge of the signing and that this date was more 14 See Lehmann, 39 S.W.3d at 205 (citing than twenty days after the judgment was signed. State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992), and Al- The rules do not set a deadline for filing a motion under varado v. Farah Mfg. Co., 830 S.W.2d 911, 915 Rule 306a(5). 10 (Tex. 1992)). 15 See note 12 supra. 10 See Levit v. Adams, 850 S.W.2d 469 (Tex. 1993). Because the trial court here found that John did not have notice of the judgment until September 30, more Nevertheless, the court of appeals in this case held than twenty days after it was signed, time periods based that such a motion must be filed within thirty days of the on the signing of the judgment ran instead from that date. date a party or his attorney first either receives the clerk's Thus, under Rule 329b(a) the plaintiff had thirty days to notice of a judgment or acquires actual knowledge that file a motion for new trial, and he did so. Because the the judgment was signed. 11 Three other courts have trial court did not rule on the motion, it was overruled by reached the same conclusion, 12 but two [**9] courts operation of law on the seventy-fifth day 16 after Sep- have concluded that Rule 306a(5) does not prohibit a tember 30, which was December 14. The trial court's motion from being filed at any time within the trial plenary jurisdiction did not expire until thirty days later, court's plenary jurisdiction measured from the date de- 17 on January 13, 2000. The plaintiff's notice of appeal termined under Rule 306a(4). 13 The latter courts are was due ninety days 18 from September 30, which was plainly correct: Rule 306a simply imposes no deadline, December 29, and was therefore timely when filed on and none can be added by decision, 14 other than the December 13. deadline of the expiration of the trial court's jurisdiction. We disapprove the cases that have reached a contrary 16 TEX. R. CIV. P. 329b(c). result. 15 [**11] 17 TEX. R. CIV. P. 329b(e). 11 12 S.W.3d at 891. 18 TEX. R. APP. P. 26.1(a). 12 Thompson v. Harco Nat'l Ins. Co., 997 S.W.2d 607, 618 (Tex. App.--Dallas 1998, pet. [*742] We thus conclude that the court of appeals denied); Gonzalez v. Sanchez, 927 S.W.2d 218, erred by dismissing the appeal for want of jurisdiction. 221 (Tex. App.--El Paso 1996, no writ) (per cu- Accordingly, the Court grants John's petition for review, riam); Montalvo v. Rio Nat'l Bank, 885 S.W.2d and without hearing oral argument, reverses the judg- 235, 237 (Tex. App.--Corpus Christi 1994, no ment of the court of appeals and remands the case to that writ) (per curiam); Womack-Humphreys Archi- court for consideration of the parties' other arguments. tects, Inc. v. Barrasso, 886 S.W.2d 809, 816 (Tex. App.--Dallas 1994, writ denied). Page 1

Caution As of: Mar 30, 2015

WILLIAM JONES, ET AL., Appellants v. MARK C. GRIEGE, Appellee

No. 05-90-01194-CV

COURT OF APPEALS OF TEXAS, Fifth District, Dallas

803 S.W.2d 486; 1991 Tex. App. LEXIS 453

January 30, 1991, Filed

PRIOR HISTORY: [**1] On Appeal from the pealable if it finally adjudicates some substantial right Probate Court No. 2; Dallas County, Texas; Trial Court and the order may be final and appealable even though Cause No. 86-4590-P/2. the decision [**2] does not fully and finally dispose of the entire probate proceeding. Bowen v. Hazel, 723 S.W.2d 795, 797 (Tex. App.--Texarkana 1987, no writ). JUDGES: Enoch, C.J., and Lagarde and Joe Burnett JJ. Nonetheless, Griege's request for punitive damages was necessarily urged in Griege's proceeding against Jones. OPINION BY: BURNETT Therefore, if the summary judgment did not dispose of that request, then it did not finally adjudicate all of OPINION Griege's claims against Jones. A summary judgment en- joys no presumption of finality. See Chase Manhattan [*487] OPINION Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990) (per curiam) (on mot. for reh'g). Therefore, we had to We questioned whether the judgment in this case determine whether this summary judgment disposed of was final, to determine whether we had jurisdiction over Griege's request for punitive damages. this appeal. For the reasons given below, we conclude that the judgment is final and that we do have jurisdic- In response to the inquiry that we made, Griege's at- tion. torney wrote the Court a letter. It stated that: Appellee Mark C. Griege succeeded appellant Wil- As counsel for [Griege] and in consultation with my liam Jones as the guardian of an incompetent person. client, we decided not to pursue the punitive damage Griege sued Jones and alleged that Jones had misappro- claim. . . . Therefore, the summary judgment which was priated various funds held in trust for the incompetent. entered was not entered by mistake. It was a conscious Griege requested both actual and punitive damages from decision on the part of [Griege] to forego his right to Jones. attempt to collect punitive damages. Griege then filed a motion for summary judgment, There is no showing that Griege had ever informed which was granted. The summary judgment awarded the trial court, however, of his decision to waive [**3] Griege actual damages but was silent on Griege's request his request for punitive damages. We hold that it was not for punitive damages. Although the summary judgment necessary for Griege to do so in order to show that the did not purport to dispose of the entire probate proceed- jurisdiction of this Court has been successfully invoked. ing, it is not necessary that it do so for purposes of ap- We are aware that parties cannot generally confer pellate review. An order in a probate proceeding is ap- jurisdiction upon a court by waiver. What is usually Page 2 803 S.W.2d 486, *; 1991 Tex. App. LEXIS 453, **

meant by that principle, however, is that a party cannot mine questions of jurisdiction if the facts are not other- agree to having an action heard by a tribunal that other- wise apparent in the record. Stewart v. Texco Newspa- wise lacks authority to hear it. E.g., Welder v. Fritz, 750 pers, Inc., 734 S.W.2d 175, 177 (Tex. App.--Houston [1st S.W.2d 930, 932 [*488] (Tex. App.--Corpus Christi, Dist.] 1987, no writ). This Court has held that the inquiry orig. proceeding) (parties cannot agree to treat a master's into appellate jurisdiction is not in all cases limited to the recommendation as if it were an order entered by a dis- record on appeal. Smith v. Basham, 227 S.W.2d 853, trict judge for purposes of having it reviewed); Hogan v. 855 (Tex. Civ. App.--Dallas), aff'd, 149 Tex. 279, 233 G., C. & S.F. Railway Co., 411 S.W.2d 815, 816 (Tex. S.W.2d 297 (Tex. 1950). A court of appeals may make Civ. App.--Beaumont 1966, writ ref'd) (parties cannot inquiry into jurisdiction and hear extrinsic evidence to agree to have the Ninth District Court of Appeals hear a show that a record does not speak the truth, where it case arising in the Twelfth District). A waiver of a court's shows jurisdictional facts. Loper v. Hosier, 148 S.W.2d lack of jurisdiction necessarily entails at least an implicit 889, 894 (Tex. Civ. App.--Dallas 1941, writ dism'd, agreement between the parties, to which they hope that judgment cor.) (per curiam) (on mot. for reh'g). the court assents, to have the court resolve their contro- Usually, an appellate court receives extrinsic evi- versy. dence to show why an appeal should be dismissed. One In contrast, Griege has not waived the lack of this example occurs when an appellant has enjoyed the bene- Court's jurisdiction. He has waived only a claim for fits of a judgment. See Roach [**6] v. Roach, 672 [**4] affirmative relief in the form of punitive damag- S.W.2d 524, 532-33 (Tex. App.--Amarillo 1984, no writ) es. 1 His act of waiver is a "unilateral act," not requiring (on mot. for reh'g). Another example occurs when events Jones's agreement. Burton v. National Bank of Com- subsequent to the judgment render the subject matter of merce of Dallas, 679 S.W.2d 115, 117 (Tex. the appeal moot. See Roadrunner Investments, Inc. v. App.--Dallas 1984, no writ). By that unilateral act, Texas Utilities Fuel Co., 526 S.W.2d 615, 616 (Tex. Civ. Griege removes the necessity for the trial court to take App.--Fort Worth 1975, no writ). Yet there is no sound any further action and so imparts the requisite finality to reason why an appellate court should be able to receive the judgment now in place. That Jones may not have extrinsic evidence to decline jurisdiction and not be able known of Griege's decision to waive his request for puni- to receive extrinsic evidence to assert jurisdiction. An tive damages at the time that Jones perfected this appeal instructive case is Texas & Pacific Railway Co. v. Beck- is irrelevant: at most, Jones would have perfected this ham Brothers & Co., 202 S.W. 991, 992 (Tex. Civ. appeal prematurely. See TEX. R. APP. P. 58(b). The only App.--El Paso 1918, writ ref'd). In that case, the names remaining question is whether Griege was required, once of two plaintiffs were at variance from the names of two he had decided to waive his request for punitive damag- prevailing parties in the judgment. The judgment there- es, to take any further action in the trial court before he fore did not show that all parties had been disposed of. informed this Court of his waiver. Compare Shivers Well Service, Inc., v. Houston, 736 S.W.2d 251, 252-53 (Tex. App.--Fort Worth 1987, orig. 1 We are careful to note that Griege has given proceeding) (an asserted misnomer in two judgments us notice of his waiver of a request for relief, and resulted in the judgments being interlocutory). The not a waiver of the cause of action that might Beckham Brothers Court, however, allowed the identity support such relief. We expressly reserve ruling of the parties to be established by uncontroverted affida- today on whether a party can waive, for the first vit, so that [**7] the parties [*489] could show that time on appeal, an underlying cause of action the judgment was in fact final. 202 S.W. at 992. Thus, it without taking further action, such as a nonsuit, follows that, if this Court questions its jurisdiction be- in the trial court, in order to establish a judg- cause the trial court has not expressly granted or denied a ment's finality. request for relief, the party who made that request can establish the finality of the trial court's judgment simply [**5] by notifying this Court that he has waived the request. Each court of appeals may, on affidavit or otherwise, We conclude that Griege's notice, to this Court, of as the court may determine, ascertain the matters of fact his decision to waive his request for punitive damages that are necessary to the proper exercise of its jurisdic- suffices to establish that the trial court's judgment is now tion. TEX. GOV'T. CODE ANN. § 22.220(c) (Vernon final. Accordingly, we have jurisdiction over this appeal. 1988). Appellate courts may receive affidavits to deter- | | Cited As of: April 7, 2015 5:50 PM EDT

Jones v. Rabson & Broocks, L.L.C. Court of Appeals of Texas, First District, Houston February 13, 2003, Filed NO. 01-01-01210-CV

Reporter 2003 Tex. App. LEXIS 1443; 2003 WL 302439

TERRY JONES, Appellant v. RABSON & BROOCKS, constable's sale. As soon and the landowner submitted L.L.C.; PELICAN CONNECTION MANAGEMENT, his deed to the law firm, the law firm issued him a deed L.L.C.; AND BROOCKS, BAKER & LANGE, L.L.P., without warranty. The appellate court found that: (1) the Appellees summary judgment was a final appealable judgment, (2) the trial court did not abuse its discretion in not Prior History: [*1] On Appeal from the 129th District allowing the landowner to file his third and fourth Court. Harris County, Texas. Trial Court Cause No. amended petitions because the landowner did not seek 00-28899. the trial court's permission to file the amended pleadings, (3) the landowner failed to state a cause of Disposition: Affirmed. action for theft or civil conspiracy because there was no evidence of theft or any other unlawful act, and (4) the Core Terms landowner failed to state a cause of action for slander of title because there was no evidence of legal malice or special damages. deed, trial court, summary judgment, damages, theft, cause of action, amended petition, constable's, Outcome amendment to pleading, civil conspiracy, attorney's fees, records, no evidence, counterclaim, sanctions, Street, The district court's judgment was affirmed. summary judgment hearing, slander of title, pleadings, contends, overrule, cloud LexisNexis® Headnotes

Case Summary Civil Procedure > ... > Pleadings > Amendment of Pleadings > General Overview Procedural Posture Civil Procedure > Judgments > Summary Judgment > General Overview Plaintiff landowner sued defendants, law firm, company, and partnership (law firm), for quiet title, conversion, Civil Procedure > ... > Summary Judgment > Hearings > General Overview theft, civil conspiracy, tortious interference with contract, wrongful execution, and slander of title. The law firm Civil Procedure > ... > Summary Judgment > Motions for filed a no-evidence motion for summary judgment. The Summary Judgment > Timing of Motions & Responses 129th District Court for Harris County (Texas) rendered summary judgment for the law firm. The landowner HN1 Tex. R. Civ. P. 63 provides that amended pleadings appealed. shall not be filed within seven days of trial without obtaining leave of court. A summary judgment hearing Overview is a trial governed by Tex. R. Civ. P. 63. It is well-settled summary judgment law that if a nonmovant for summary The law firm executed a judgment against a previous judgment (1) files an amended pleading after the owner of the land and obtained several parcels of the summary judgment hearing and (2) the amended previous owner's land at a constable's sale. The pleading raises an additional claim not mentioned in the landowner was negotiating a sale to a third party, which summary judgment motion, then the trial court does not fell thru because of the cloud on his title caused by the err in granting the summary judgment motion because 2003 Tex. App. LEXIS 1443, *1

the trial court may consider only the pleadings on file at Torts > ... > Concerted Action > Civil Conspiracy > General the time of the hearing, or filed after the hearing, but Overview before judgment with permission of the court. Torts > ... > Concerted Action > Civil Conspiracy > Elements

Civil Procedure > Appeals > Summary Judgment Review > HN5 To recover in an action for slander of title, a party General Overview must plead and prove: (1) the uttering and publishing of Civil Procedure > ... > Summary Judgment > Motions for disparaging words; (2) falsity; (3) malice; (4) special Summary Judgment > General Overview damages; (5) possession of an estate or interest in the Civil Procedure > ... > Summary Judgment > Entitlement property disparaged; and (6) the loss of a specific sale. as Matter of Law > General Overview Civil Procedure > Judgments > Enforcement & Execution > Torts > ... > Concerted Action > Civil Conspiracy > General Writs of Execution Overview Torts > Intentional Torts > Prima Facie Tort > General HN2 The appellate court reviews a "no-evidence" Overview summary judgment motion in the light most favorable to the nonmovant; it assumes the nonmovant's evidence HN6 Legal malice is defined as wrongful conduct that is to be true and resolves any doubts in the nonmovant's intentional and without just cause or excuse. favor, while disregarding all evidence and inferences to the contrary. Civil Procedure > ... > Summary Judgment > Hearings > General Overview Civil Procedure > ... > Summary Judgment > Entitlement Real Property Law > Title Quality > Adverse Claim Actions > as Matter of Law > General Overview General Overview Criminal Law & Procedure > Criminal Offenses > Acts & Real Property Law > Title Quality > Adverse Claim Actions > Mental States > General Overview Quiet Title Actions

HN3 To defeat a no-evidence motion under Tex. R. Civ. Torts > Business Torts > Slander of Title > General Overview P. 166a(i), the nonmovant has to raise a fact issue showing that the defendants (1) unlawfully (2) Torts > Remedies > Damages > General Overview appropriate his property (3) with the intent to deprive him of it. Tex. Penal Code Ann. § 31.03 (Vernon 2000). HN7 A plaintiff claiming slander of title may recover the Intent to deprive is the accused's intent at the time of the amount he would have realized from the lost sale minus taking. Intent may be inferred from a failure to return the the amount for which he can sell the land at the time of property. trial with the cloud removed.

Real Property Law > Title Quality > Adverse Claim Actions > Judges: Panel consists of Justices Taft, Keyes, and Quiet Title Actions Higley. Torts > ... > Concerted Action > Civil Conspiracy > General Opinion by: Evelyn V. Keyes Overview

HN4 A civil conspiracy claim is not actionable unless Opinion there is an overt, unlawful act. MEMORANDUM OPINION Real Property Law > Title Quality > Adverse Claim Actions > General Overview This is an appeal of summary judgment rendered for Real Property Law > Title Quality > Adverse Claim Actions > appellees/defendants Rabson & Broocks, L.L.C.; Quiet Title Actions Pelican Connection Management, L.L.C.; and Broocks, Torts > Business Torts > Slander of Title > General Baker & Lange, L.L.P (the Rabson defendants) against Overview appellant, Terry Jones. In eight issues presented for review, Jones challenges the rendition of summary Torts > Business Torts > Slander of Title > Elements judgment, contending that (1) the Rabson defendants Torts > Business Torts > Trade Libel > General Overview were not entitled to summary judgment on his causes of Page 2 of 6 2003 Tex. App. LEXIS 1443, *1

action for theft, civil conspiracy, slander of title, and Upon receiving this deed, the Rabson defendants tortious interference with contract; (2) he suffered conceded that Jones was the rightful owner of the recoverable damages; (3) he has a viable claim for property. Jones asked the Rabson defendants to supply attorney's fees; (4) the trial court abused its discretion him with a general warranty deed but, because their title by not granting him leave to file his third and fourth was void from inception, the Rabson defendants refused amended petitions; and (5) summary judgment was to execute such a deed. Instead, they provided Jones improperly rendered because there was an unresolved with a deed without warranty. counterclaim. We affirm. The Rabson defendants characterize their inclusion of Factual & Procedural Background the Wayne Street [*4] property in the constable's sale The parties [*2] do not dispute the essential facts of the as an innocent mistake--one they rectified as soon as underlying dispute; however, the parties' interpretation they obtained legal proof that Jones owned the property. of those facts is greatly disparate. The events leading to Jones, in contrast, characterizes the entire series of this lawsuit unfolded in the following sequence. The transactions as a malicious, fraudulent scheme to Rabson defendants obtained a $ 360,000 judgment deprive him of his property. When he did not obtain the against Gladys Goffney in an unrelated lawsuit. In the general warranty deed he asked for, Jones filed suit to spring of 1999, as part of their efforts to collect the quiet title. He sought to recover compensatory damages, judgment, the Rabson defendants searched the Harris exemplary damages, and attorney's fees. The Rabson County real property records and identified roughly 17 defendants answered with a general denial. pieces of property that Goffney owned, including an unimproved lot at 5206 Wayne Street in Houston. After On October 13, 2000, despite Jones's earlier refusal to a writ of execution was issued on the judgment in May accept an identical deed, the Rabson defendants 1999, the Rabson defendants requested a constable's delivered to Jones an executed deed without warranty sale of the properties. On July 6, 1999, the constable's in which it conveyed any and all of their interests in the sale was completed. The Rabson defendants received Wayne street property to Jones. Evidently, Jones has the deeds from the sale on August 11, 1999 and never recorded this deed. In November 2000, the Fifth recorded them in October 1999. The Wayne Street Ward Community Redevelopment Corporation renewed property, however, had been sold six years earlier to its offer to purchase the property for $ 25,000. Jones Noah Murchison. It is not clear from the record whether refused the sale, in part because he believed that the the deed records were incomplete or the person who cloud on the property was not removed, in part because searched the records overlooked the deed conveying of the pending litigation, and in part because he was no the property from Goffney to Murchison. longer interested in selling for that price.

After the writ of execution was issued in the unrelated Jones filed a second amended petition in [*5] December [*3] lawsuit against Goffney, but before the constable's 2000, setting out causes of action for conversion, theft, sale took place, Murchison sold the property to Jones civil conspiracy to commit theft, and slander of title. 1 for $ 12,500. Jones recorded his deed on July 27, 1999. Broocks, Baker & Lange filed a second, separate Only after Jones began negotiating with the Fifth Ward answer to this amended petition, repeating the general Community Redevelopment Corporation to sell it the denials and pleading the affirmative defenses of failure property for $ 25,000 did he learn there was a cloud on to mitigate damages and tender of performance. The his title; he was unable to complete the sale of the firm also added a counterclaim for Rule 13 violations, property in November 1999 as planned. Just after the seeking attorney's fees. In January, the Rabson first of the year 2000, Jones contacted the Rabson defendants filed a no-evidence motion for summary defendants to attempt to resolve the question of judgment in which they identified elements of each ownership. He originally sent an unsigned, unrecorded cause of action for which there was no evidence and deed to the Rabson defendants' counsel that was not challenged all causes of action based on an absence of accepted as proof of ownership; on March 30, 2000, proof of damages. In his response to the motion, Jones Jones supplied a signed, recorded deed conveying the filed an affidavit setting out the facts in detail. The property from Goffney to Murchison. motion was heard on March 26, 2001. Before the trial

1 Although the second amended petition is not included in the clerk's record, the parties both refer to these causes of action in their pleadings and motions; accordingly, we accept these as having been pleaded. Page 3 of 6 2003 Tex. App. LEXIS 1443, *5

court ruled on the motion, Jones filed a third amended Amended Pleadings petition, three days after the summary judgment hearing, In issue seven, Jones contends the trial court abused its adding a cause of action for tortious interference with discretion by not granting him leave to file his third and contract and seeking additional damages for mental fourth amended petitions. He argues that because the anguish. The Rabson defendants supplemented their Rabson defendants did not move to strike the pleadings motion for summary judgment to raise a no-evidence or show they were prejudiced by the untimely amended challenge to this additional cause of action. Jones filed petitions, the trial court abused its discretion by not a fourth amended [*6] petition on August 14, 2001 considering these later petitions. It is evident from the adding a cause of action for wrongful execution. judgment that the trial court did not consider the third or fourth petitions because the judgment was based on The trial court rendered summary judgment on the motions and the summary judgment hearing held on September 10, 2001, basing it on the March hearing. March 26, 2001, before either amended petition was The judgment did not address the counterclaim for filed. The record does not contain a motion for leave to sanctions but included a "Mother Hubbard" clause. late-file either petition, a motion to strike the amended Jones's motion for new trial was overruled by operation pleadings, or an order striking them. of law and this appeal ensued. On appeal, Jones does not address the cause of action for conversion; thus he Rule 63 of the Texas Rules of Civil Procedure HN1 has waived any complaint regarding this issue. provides that amended pleadings shall not be filed within seven days of trial without obtaining leave of Finality of Judgment court. TEX. R. CIV. P. 63. A summary judgment hearing is a "trial" governed by Rule 63. See Goswami v. As a threshold matter, we address Jones's eighth issue Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490, on review to determine whether this appeal is, as he 31 Tex. Sup. Ct. J. 399 (Tex. 1988). It is well-settled claims, interlocutory because there is an outstanding summary judgment [*9] law that if a nonmovant for counterclaim for sanctions. The Rabson defendants summary judgment (1) files an amended pleading after argue that a counterclaim for sanctions is not a cause of the summary judgment hearing and (2) the amended action that the trial [*7] court was obligated to address in pleading raises an additional claim not mentioned in the its judgment. They also contend that the trial court orally summary judgment motion, then the trial court does not denied the motion for sanctions, but that the order was err in granting the summary judgment motion because apparently not reduced to writing. Jones does not the trial court may consider only the pleadings on file at address whether the trial court ruled on the motion for the time of the hearing, or filed after the hearing (but sanctions and speaks only to the language of the before judgment) with permission of the court. judgment itself. Automaker, Inc. v. C.C.R.T. Co., Ltd., 976 S.W.2d 744, 746 (Tex. App.--Houston [1st Dist.] 1998, no pet.). Jones Jones argues that the judgment was interlocutory did not seek the trial court's permission to file his because there is no language in the trial court's amended pleadings. Although the Rabson defendants judgment that "with unmistakable clarity informs that it did not file a motion to strike the amended pleadings, was a final judgment." We disagree. The order is entitled they filed a letter with the trial court objecting to the "FINAL SUMMARY JUDGMENT" and the last sentence amendments. The trial court did not err in refusing to of the judgment states, "All relief requested and not consider these late-filed pleadings. expressly granted is denied." The Rabson defendants We overrule issue seven. Therefore, we will not address have not contested the finality of the appeal, nor Jones's causes of action for tortious interference with appealed the trial court's denial of their claim for contract or wrongful execution, nor his claim for sanctions. Jones treated the judgment as final by filing damages based on mental anguish. We also overrule a motion for new trial, in which he does not mention the issue five, in which Jones contends that summary counterclaim, and by filing a notice of appeal. Based on judgment on the tortious interference [*10] with contract the record and the language of the judgment, we claim was improper. conclude that the judgment was final for purposes of appeal. See Lehman v. Har-Con Corp., 39 S.W.3d 191, Theft, Civil Conspiracy, and Slander of Title 205, 44 Tex. Sup. Ct. J. 364 (Tex. 2001). Accordingly, we overrule issue eight and [*8] address the merits of In issues one, two, and three, Jones contends the trial the appeal. court erred in rendering summary judgment for the Page 4 of 6 2003 Tex. App. LEXIS 1443, *10

Rabson defendants on Jones's claims for theft, civil We overrule issues one and two. conspiracy, and slander of title. HN2 We review a "no-evidence" summary judgment motion in the light Slander of Title most favorable to the nonmovant; here, we assume Jones's evidence to be true and resolve any doubts in HN5 To recover in an action for slander of title, a party his favor, while disregarding all evidence and inferences must plead and prove: (1) the uttering and publishing of to the contrary. Jones v. Bank United of Texas, FSB, 51 disparaging words; (2) falsity; (3) malice; (4) special S.W.3d 341, 343 (Tex. App.--Houston [1st Dist.] 2001, damages; (5) possession of an estate or interest in the pet. denied). property disparaged; and (6) the loss of a specific sale. See Williams v. Jennings, 755 S.W.2d 874, 879 (Tex. Theft & Civil Conspiracy App.--Houston [14th Dist.] 1988, writ denied). Jones cannot prevail because he has provided no evidence of HN3 To defeat the no-evidence motion under 166a(i), legal malice or of special damages. Jones had to raise a fact issue showing that the Rabson defendants (1) unlawfully (2) appropriated his property HN6 Legal malice is defined as wrongful conduct that is (3) with the intent to deprive him of it. TEX. PEN. CODE intentional and without just cause or excuse. Continental ANN. § 31.03 (Vernon 2000). Intent to deprive is the Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452, 40 accused's intent at the time of the taking. Thomas v. Tex. Sup. Ct. J. 172 (Tex. 1996). Because the Rabson State, 753 S.W.2d 688, 694 (Tex. Crim. App. 1988). defendants had a lawful writ of execution and the Intent may be inferred from a failure to return the property records contained Gladys Goffney's deed to property. Rowland v. State, 744 S.W.2d 610, 613 (Tex. the Wayne Street property, the inclusion [*13] of the Crim. App. 1988). [*11] property in the constable's sale, although incorrect, was Although Jones argues that his affidavit provides ample based on reasonable cause. Thus, there is no evidence evidence of theft, we cannot agree. He has globally of legal malice. Moreover, although Jones proved the stated facts to support his conclusions as he sees them, loss of a specific sale, he did not offer any evidence of but has not connected any of these facts to each special damages. HN7 A plaintiff may recover the challenged element of his claims, such as whether the amount he would have realized from the lost sale minus Rabson defendants committed an unlawful act. The the amount for which he could have sold the land at the constable's sale was held pursuant to a lawful writ of time of trial with the cloud removed. A.H. Belo Corp. v. execution. Nor does Jones provide evidence of intent. Sanders, 632 S.W.2d 145, 146, 25 Tex. Sup. Ct. J. 257 The Rabson defendants argue there is no evidence of (Tex. 1982). The time of trial here was March 26, intent to deprive Jones of the property because the 2001--the date of the summary judgment hearing. See constable's deed transferred only Gladys Goffney's Goswami, 751 S.W.2d at 490. Although Jones provided interest in the property, not Jones's. The Rabson evidence that he was unable to complete the sale for $ defendants provided Jones with a deed disclaiming any 25,000, he provided no evidence of the market value of interest in the property, albeit a deed Jones apparently the property at the time of trial. Without such evidence, believes does not remove the cloud on the title, thus the trial court could not calculate special damages, refuting any inference of theft. While the inclusion of the even if it determined the Rabson defendants had Wayne Street property in the constable's sale was slandered Jones's title. Accordingly, we hold the trial unfortunate, we hold Jones provided no evidence to court did not err in rendering summary judgment on this show that it was tantamount to theft. claim.

We overrule issue three. HN4 A civil conspiracy claim is not actionable unless there is an overt, unlawful act. American Tobacco Co., Attorney's Fees Inc. v. Grinnell, 951 S.W.2d 420, 438, 40 Tex. Sup. Ct. J. 658 (Tex. 1997). Because we have held [*12] there was In issue six, Jones contends that he is entitled to no theft, and Jones has not alleged any other unlawful attorney's fees because his suit is one for [*14] act, we further hold that there was no overt, unlawful act declaratory judgment. The Rabson defendants argue upon which a conspiracy could have rested. The trial that the true nature of the suit is to remove a cloud on court did not err in rendering summary judgment on Jones's title, thus attorney's fees are not recoverable. Jones's claims for theft and civil conspiracy. Because we have overruled all of appellant's other Page 5 of 6 2003 Tex. App. LEXIS 1443, *14

issues on appeal, the issue of attorney's fees is moot. Evelyn V. Keyes, Justice

We affirm the trial court's judgment.

Page 6 of 6 | | Caution As of: April 7, 2015 5:51 PM EDT

Lefton v. Griffith Court of Appeals of Texas, Fourth District, San Antonio March 31, 2004, Delivered ; March 31, 2004, Filed No. 04-03-00402-CV

Reporter 136 S.W.3d 271; 2004 Tex. App. LEXIS 2812

David LEFTON and Arthur Lefton, Appellants v. Dixie rented property. She filed an action against the lessors, GRIFFITH d/b/a Discount Furniture Warehouse, who failed to answer the complaint. After a default Appellee judgment was entered in the case, the lessors sought review. On appeal, the court determined that there was Subsequent History: Released for Publication July 2, insufficient evidence to support the award of economic 2004. damages. The lessee, as the owner of the property, was permitted to testify as to its market value. However, the Prior History: [**1] From the 225th Judicial District evidence was conclusory as to the value of the inventory Court, Bexar County, Texas. Trial Court No. and the home. The lessee did not show how she came 2002-CI-15103. Honorable Pat Boone, Judge Presiding. to a conclusion regarding loss. Further, she failed to show that she had been denied a loan or that a higher interest rate was charged. She failed to show lost profits Disposition: Affirmed in part, reversed and remanded with reasonable certainty. Her allegations did not rise to in part. the level of compensable mental anguish. However, the award of attorney fees was upheld because it was Core Terms presumed that the trial court took judicial notice of the usual and customary attorney fees. Finally, the court damages, mental anguish, trial court, lost profits, overruled the lessors' argument that the return of service inventory, default judgment, economic damages, was invalid. attorney's fees, award of damages, reputation, market value, provides, allegations, distress, notice, legal Outcome insufficiency, notice of appeal, furniture, issues, fails, The court reversed the trial court's award of economic days damages and mental anguish. The case was remanded for a new trial on those issues. The court affirmed the Case Summary award of attorney fees.

Procedural Posture LexisNexis® Headnotes Appellant lessors challenged a decision from the 225th Civil Procedure > Appeals > Notice of Appeal Judicial District Court in Bexar County (Texas), which entered a default judgment in favor of appellee lessee in HN1 See Tex. R. App. P. 30. an action alleging breach of contract, tortious interference, fraud, intentional infliction of emotional Civil Procedure > Appeals > Reviewability of Lower Court distress, and a violation of the Texas Deceptive Trade Decisions > General Overview Practices Act. Civil Procedure > Appeals > Notice of Appeal

Overview Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Timing of Appeals The lessee was unable to pay rent. The lessors agreed to give her until a certain date to vacate the premises. HN3 Tex. R. App. P. 25.1(d)(7)(A) requires that a notice However, they later refused to grant access to the of restricted appeal must state that the appellant is a 136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1

party affected by the trial court's judgment but did not supports the jury finding is so weak as to be clearly participate--either in person or through counsel--in the wrong and manifestly unjust. hearing that resulted in the judgment complained of. Tex. R. App. P. 25.1(d)(7)(A). Rule 25.1(d)(7)(B) further Evidence > ... > Testimony > Lay Witnesses > General requires that a notice of restricted appeal must state Overview that the appellant did not timely file either a Real Property Law > Property Valuations postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal. Tex. R. App. P. HN7 An owner is qualified to testify about the market 25.1(d)(7)(B). value of his property.

Civil Procedure > ... > Pretrial Judgments > Default & Civil Procedure > Remedies > Damages > General Default Judgments > Default Judgments Overview Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Timing of Appeals HN8 Documents that represent merely conclusory allegations will not support an amount awarded for HN2 Where a party fails to timely file an answer, the unliquidated damages. facts alleged in a complaint are deemed admitted, except the amount of damages. Civil Procedure > Judgments > Pretrial Judgments > General Overview Civil Procedure > Appeals > Appellate Briefs Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > General Overview HN4 A reply brief is limited in scope to responding to matters in an appellee's brief. Tex. R. App. P. 38.3. Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments Civil Procedure > ... > Standards of Review > Substantial Civil Procedure > Remedies > Damages > General Evidence > General Overview Overview Evidence > Burdens of Proof > General Overview HN9 There can be no recovery for damages which are HN5 An appellant attacking the legal sufficiency of an speculative or conjectural. adverse finding on which he did not have the burden of proof must demonstrate that there is no evidence to Civil Procedure > Remedies > Damages > General Overview support the adverse finding. The reviewing court must consider all evidence in a light most favorable to the HN10 Texas law provides that in order to recover actual party in whose favor the verdict has been rendered and damages for loss of credit reputation, a plaintiff must indulge every reasonable inference from the evidence first show that a loan was actually denied or a higher in such party's favor. If more than a scintilla of evidence interest rate charged. exists to support the finding, the no-evidence challenge fails. Contracts Law > ... > Measurement of Damages > Foreseeable Damages > General Overview Civil Procedure > ... > Standards of Review > Substantial Evidence > General Overview HN11 Recovery for lost profits does not require that the Evidence > Burdens of Proof > General Overview loss be susceptible to exact calculation. However, the injured party must do more than show that it suffered HN6 A party attacking the factual sufficiency of an some lost profits. The loss amount must be shown by adverse finding on an issue on which the other party competent evidence with reasonable certainty. This is a had the burden of proof must demonstrate that there is fact-intensive determination. At a minimum, opinions of insufficient evidence to support the adverse finding. In lost-profit estimates must be based on objective facts, reviewing an insufficiency of the evidence challenge, figures, or data from which the lost-profits amount may the court must first consider, weigh, and examine all of be ascertained. Although supporting documentation the evidence which supports and which is contrary to may affect the weight of the evidence, it is not necessary the jury's determination. Having done so, the court to produce in court the documents supporting the should set aside the verdict only if the evidence that opinions or estimates. Page 2 of 9 136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1

Contracts Law > ... > Measurement of Damages > HN15 See Tex. Civ. Prac. & Rem. Code Ann. § 38.004(1) Foreseeable Damages > General Overview (1997).

HN12 The bare assertion that contracts were lost does Civil Procedure > Remedies > Costs & Attorney Fees > not demonstrate a reasonably certain objective General Overview determination of lost profits. Evidence > Inferences & Presumptions > General Overview Torts > ... > Types of Losses > Pain & Suffering > General Overview Evidence > Judicial Notice > General Overview Torts > ... > Pain & Suffering > Emotional Distress > General HN16 Even if a trial court did not state that it was taking Overview judicial notice of attorney fees, an appellate court may Torts > ... > Pain & Suffering > Emotional Distress > presume that the trial court did so. Evidence Civil Procedure > ... > Service of Process > Proof of HN13 Mental anguish damages are appropriate when Service > General Overview there is either direct evidence of the nature, duration, and severity of plaintiffs' mental anguish, thus Civil Procedure > Judgments > Pretrial Judgments > General Overview establishing a substantial disruption in the plaintiffs' daily routine, or other evidence of a high degree of Civil Procedure > ... > Pretrial Judgments > Default & mental pain and distress that is more than mere worry, Default Judgments > General Overview anxiety, vexation, or anger. The absence of evidence of Civil Procedure > ... > Pretrial Judgments > Default & the nature, duration, and severity of mental anguish, Default Judgments > Default Judgments particularly when it can be readily supplied or procured Governments > Courts > Clerks of Court by the plaintiff, justifies close judicial scrutiny of other evidence offered on this element of damages. HN17 See Tex. R. Civ. P. 107.

Civil Procedure > ... > Jury Trials > Jury Instructions > Civil Procedure > Judgments > Pretrial Judgments > General Overview General Overview

Torts > ... > Types of Losses > Pain & Suffering > General Civil Procedure > ... > Pretrial Judgments > Default & Overview Default Judgments > General Overview

Torts > ... > Pain & Suffering > Emotional Distress > General Civil Procedure > ... > Pretrial Judgments > Default & Overview Default Judgments > Default Judgments Civil Procedure > Remedies > Damages > General HN14 Texas law provides that not only must there be Overview evidence of the existence of compensable mental anguish, there must also be some evidence to justify Civil Procedure > Appeals > Remands the amount awarded. While the impossibility of any Real Property Law > ... > Remedies > Damages > General exact evaluation of mental anguish requires that juries Overview be given a measure of discretion in finding damages, Torts > ... > Pain & Suffering > Emotional Distress > General that discretion is limited. Juries cannot simply pick a Overview number and put it in the blank. They must find an amount that, in the standard language of the jury charge, HN18 When damages awarded in a default judgment would fairly and reasonably compensate for the loss. after an uncontested hearing are supported by either Reasonable compensation is no easier to determine legally or factually insufficient evidence, an appellate than reasonable behavior--often it may be harder--but court must remand the case for a new trial on those the law requires factfinders to determine both. damage issues.

Civil Procedure > Remedies > Costs & Attorney Fees > Counsel: For Appellant: Ryan G. Anderson, David L. General Overview Hanna, Kathy H. Kang, William H. Ford, Ball & Weed, Evidence > Judicial Notice > General Overview P.C., San Antonio, TX. Page 3 of 9 136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1

For Appellee: N. Mark Ralls, Robert A. Ewert, Gonzales The Leftons filed a restricted appeal under Texas Rule Hoblit Ferguson L.L.P., San Antonio, TX. of Appellate Procedure 30. See TEX. R. APP. P. 30 HN1 ("A party who did not participate--either in person or Judges: Opinion by: Karen Angelini, Justice. Sitting: through counsel--in the hearing that resulted in the Alma L. Lopez, Chief Justice, Karen Angelini, Justice, judgment complained of and who did not timely file a Sandee Byran Marion, Justice. postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time Opinion by: Karen Angelini permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c)."). 1 HN2 Opinion Because the Leftons failed to timely file an answer, the facts alleged in Griffith's [**3] petition are deemed David and Arthur Lefton appeal a default [*273] admitted, except the amount of damages. Tex. Commerce Bank, N. A. v. New, 3 S.W.3d 515, 516, 42 judgment granted in favor of Dixie Griffith. We affirm the Tex. Sup. Ct. J. 1175 (Tex. 1999). The Leftons present judgment of the trial court in part and reverse and the following issues for review: remand the judgment of the trial court in part. (1) Did Griffith present legally and factually sufficient BACKGROUND evidence to support the award of damages? Dixie Griffith leased a property owned by David and Arthur Lefton for use as a furniture store. According to (2) Did Griffith show proof of service? Griffith, she was unable to pay her rent. The Leftons [**4] In their reply brief, the Leftons bring up two agreed to give her until November 1, 2000, to vacate. additional issues: first, they allege that Griffith cannot Instead of keeping their promise, [*274] however, they recover because she fails to establish that the Leftons changed the locks on October 20, 2000. For eight days, caused the damages awarded; second, they allege that they refused to give her access to the property. She was Griffith cannot recover because her alleged facts do not allowed access to the property on October 28, 2000, for constitute a cause of action under the DTPA. HN4 A two weekend days. Because of the Leftons' actions, reply brief is limited in scope to responding to matters in Griffith alleges, she was forced her to sell the inventory an appellee's brief. TEX. R. APP. P. 38.3. Therefore, of her furniture business at an extreme loss. Additionally, because the Leftons failed to bring up these issues in she was forced to sell her home to pay [**2] her their original brief, they are not properly before this creditors. She also suffered damage to credit reputation, court. Sunbeam Envtl. Servs., Inc. v. Tex. Workers' lost profits, and mental anguish. Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex. Griffith sued the Leftons for breach of contract, tortious App.--Austin 2002, no pet.). interference, fraud, intentional infliction of emotional distress, and violation of the Deceptive Trade Practices Even if these issues were properly before the court, Act. When the Leftons failed to answer the suit, Griffith however, because the Leftons failed to timely file an moved for default judgment. The trial court granted answer, the facts alleged in Griffith's petition are deemed default judgment in favor of Griffith on her DTPA claim, admitted, except the amount of damages. New, 3 awarding her $ 350,000 in economic damages, $ S.W.3d at 516. In her petition, [*275] Griffith alleges 700,000 in trebled economic damages, $ 290,000 in that the Leftons' actions "were a producing cause of mental anguish damages, $ 580,000 in trebled mental damages to Plaintiff." She further alleges a DTPA cause anguish damages, and $ 2,000 in attorney fees. of action by stating that "Defendants engaged in

1 Texas Rule of Appellate Procedure 25.1(d)(7)(A) HN3 requires that a notice of restricted appeal must "state that the appellant is a party affected by the trial court's judgment but did not participate--either in person or through counsel--in the hearing that resulted in the judgment complained of." TEX. R. APP. P. 25.1(d)(7)(A). Texas Rule of Appellate Procedure 25.1(d)(7)(B) further requires that a notice of restricted appeal must "state that the appellant did not timely file either a postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal." TEX. R. APP. P. 25.1(d)(7)(B). Griffith argues that the Leftons failed to properly perfect their appeal because their notice of appeal fails to contain these statements. We have since granted leave, however, for the Leftons to so amend their notice of appeal, and they have done so. See TEX. R. APP. P. 25.1(f) (allowing notice to be amended "on leave of the appellate court"). Accordingly, we overrule this issue on appeal. Page 4 of 9 136 S.W.3d 271, *275; 2004 Tex. App. LEXIS 2812, **4

unconscionable conduct as defined in § 17.50 of the was (a) not filed with the court at the time of the hearing, Texas Business & Commerce Code. [**5] " Thus, and (b) not admitted into evidence, we cannot know that because the Leftons alleged causation and a DTPA the trial court ever considered it. claim, and because these allegations are admitted, the Leftons' argument is without merit. Griffith responds by pointing out that the trial court clearly references an affidavit [**7] during the hearing. DISCUSSION The Leftons counter, however, that while the record reflects that the trial court referred to an affidavit at the I. Legal and Factual Sufficiency default judgment hearing, there is no evidence that the trial court was referring to Griffith's affidavit. The Leftons contend that Griffith failed to present legally and factually sufficient evidence of damages. It is clear that the trial court had Griffith's affidavit before it. At the hearing, Griffith's lawyer refers to the affidavit HN5 An appellant attacking the legal sufficiency of an several times. Additionally, the trial court itself indicates adverse finding on which he did not have the burden of that it had Griffith's affidavit before it: proof must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 THE COURT: Where is [the plaintiff]? S.W.2d 55, 58, 27 Tex. Sup. Ct. J. 59 (Tex. 1983). The reviewing court must consider all evidence in a light COUNSEL: Between Florida and Dallas. most favorable to the party in whose favor the verdict has been rendered and indulge every reasonable THE COURT: Florida and--when did she leave? inference from the evidence in such party's favor. Harbin v. Seale, 461 S.W.2d 591, 592, 14 Tex. Sup. Ct. J. 128 COUNSEL: I am unaware of that answer. (Tex. 1970). If more than a scintilla of evidence exists to THE COURT: Did she leave last week, or when did she support the finding, the no-evidence challenge fails. leave? Formosa Plastics Corp. USA v. Presidio Eng'rs, 960 S.W.2d 41, 48, 41 Tex. Sup. Ct. J. 289 (Tex. 1998). [*276] COUNSEL: Honestly, Your Honor, I don't know. HN6 A party attacking the factual sufficiency of an THE COURT: What's your client's name? adverse finding on an issue on which the other party had the burden of proof must demonstrate that there COUNSEL: Dixie Griffith. [**6] is insufficient evidence to support the adverse finding. Hickey v. Couchman, 797 S.W.2d 103, 109 THE COURT: And you don't know--she's between (Tex. App.--Corpus Christi 1990, writ denied). In Florida and where? reviewing an insufficiency of the evidence challenge, the court must first consider, weigh, and examine all of COUNSEL: Dallas. the evidence which supports and which is contrary to the jury's determination. Plas-Tex, Inc. v. U.S. Steel THE COURT: And you don't know when she left. Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex. 1989) (per curiam). Having done so, the court COUNSEL: No, I'm not sure of that. should set aside the verdict only if the evidence that supports the jury finding is so weak as to be clearly THE COURT: Huh? wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176, 29 Tex. Sup. Ct. J. 214 (Tex. 1986) (per COUNSEL: I am not sure of that, no. curiam). THE COURT: You know why this puzzles me? Because A. Was Affidavit in Evidence? this was--your client's affidavit was notarized today.

The record contains an affidavit by Griffith describing COUNSEL: That's correct. I have been in touch with her her damages. This affidavit is on file in the clerk's record over [**8] the phone, and she faxed me her signature on and appears to have been filed after the entry of default that affidavit after we [had] discussed it, and I had a judgment. The Leftons argue that because the affidavit faxed copy to her. Page 5 of 9 136 S.W.3d 271, *276; 2004 Tex. App. LEXIS 2812, **8

The trial court's statement, "This was--your client's Because [**10] the Defendants' actions placed me in a affidavit was notarized today," indicates that the trial position where I needed cash quickly in order to satisfy judge had an affidavit of Griffith's before him and was some of my creditors, I was forced to sell my personal looking at it as he made this statement. Furthermore, residence as quickly as possible, which resulted in a because Griffith's affidavit was notarized the same day loss of $ 60,000 on the sale of my house. as the hearing took place, this statement confirms that it was Griffith's affidavit that was before the trial court. [*277] Citing Porras v. Craig, 675 S.W.2d 503, 27 Tex. Because it is clear the trial court considered Griffith's Sup. Ct. J. 515 (Tex. 1984), the Leftons argue that the affidavit, we overrule this issue on appeal. See New, 3 above testimony is incompetent because it fails to refer S.W.3d at 517 ("The trial court did not err when it to market value. In Porras, a case based on permanent considered the affidavits in rendering its default damage to land, the court reversed an award of judgment."). damages where the owner failed to testify to the market value of his property. Id. 675 S.W.2d at 504. In Porras, B. Affidavit Testimony however, "the owner's testimony affirmatively showed that he referred to personal rather than market value." The Leftons next argue that Griffith's affidavit does not Id. 675 S.W.2d at 505. Here, Griffith's testimony does provide legally or factually sufficient evidence of not affirmatively show that she was referring to personal economic damages, mental anguish damages, or rather than market value. Thus, this case is attorney fees. distinguishable from Porras on this basis. In fact, Porras affirms the general rule that HN7 "an owner is qualified 1. Economic Damages to testify about the market value of his property." Id. The trial court awarded Griffith $ 350,000 in economic Because, therefore, an owner is qualified to testify damages. In her affidavit, Griffith describes four types of about the market value of his property, and because economic damages: (1) the loss resulting from the sale Griffith's [**11] testimony does not affirmatively show of her inventory, which she [**9] values at $ 290,000; (2) that she was referring to personal rather than market the loss resulting from the sale of her home, which she value, we overrule this argument on appeal. values at $ 60,000; (3) the harm to her credit rating, The Leftons also argue that the above testimony is which she values at $ 250,000; and (4) lost profits, incompetent because it is conclusory. There is no which she values at $ 175,000. The Leftons argue that evidence, they argue, that the inventory Griffith sold for Griffith's testimony describing these four types of $ 10,000 was actually worth $ 300,000. We agree. HN8 economic damages is legally and factually insufficient. Documents that represent merely conclusory a. Losses from Sale of Inventory and Sale of Home allegations will not support an amount awarded for unliquidated damages. Jones v. Andrews, 873 S.W.2d The Leftons first argue that Griffith's testimony 102, 107 (Tex. App.--Dallas 1994, no writ). Here, describing the alleged losses from the sale of her Griffith's allegations fail to provide a factual basis to inventory and home is legally and factually insufficient. support her conclusion. We do not know, for example, Griffith's affidavit provides: the type of furniture or even the amount of furniture she sold. As such, we have no factual basis upon which to My inventory at the time of the forced sale was worth $ affirm her conclusion. See Brownlee v. Brownlee, 665 300,000. I was forced to sell my entire inventory for only S.W.2d 111, 112, 27 Tex. Sup. Ct. J. 259 (Tex. 1984) $ 10,000 to the only company that offered me a bid. (holding that affidavits consisting only of conclusions Therefore, I lost $ 290,000 because the Defendants are insufficient to raise an issue of fact). Accordingly, we broke their promise and locked me out of the Premises hold that the evidence of loss from the sale of inventory and forced me to sell my inventory. is legally insufficient to support an award for damages. .... The testimony regarding the sale of her home is equally Moreover, because the failure of my business deprived conclusory. As the owner of her [**12] home, Griffith is me of my only source of income, I was unable to pay my clearly qualified to testify about the value of it. Porras, personal creditors. As a result, I was soon forced to sell 675 S.W.2d at 505. Because, however, she fails to my house, at a greatly reduced price, in an attempt to explain how she arrived at the conclusion that she lost $ pay my business suppliers and personal creditors. 60,000 from having to sell her home to pay her creditors, Page 6 of 9 136 S.W.3d 271, *277; 2004 Tex. App. LEXIS 2812, **12

we have no way of knowing what she based her have been in business for at least five more years, conclusion on. Her estimate could be purely speculative. probably more. I personally earned net profit of HN9 "There can be no recovery for damages which are approximately $ 35,000 per year from the business. speculative or conjectural." Roberts v. U.S. Home Corp., Therefore, I believe I am entitled to lost profits equal to 694 S.W.2d 129, 135 (Tex. App.--San Antonio 1985, no that same income for the next five years, or $ 175,000. writ) (reversing a default judgment award for damages to credit reputation). Accordingly, we hold that the HN11 Recovery for lost profits does not require that the evidence of loss from the sale of Griffith's home is loss be susceptible to exact calculation. Tex. legally insufficient to support an award of damages. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279, 37 Tex. Sup. Ct. J. 676 (Tex. 1994). b. Damage to Credit Reputation However, the injured party must do more than show that it suffered some lost profits. Id. The loss amount must The Leftons next argue, and Griffith concedes, that be shown by competent evidence with reasonable Griffith's testimony regarding her damage to credit certainty. Szczepanik v. First S. Trust Co., 883 S.W.2d reputation is incompetent. Griffith's affidavit provides: 648, 649, 37 Tex. Sup. Ct. J. 860 (Tex. 1994); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84, 35 Further, as a result of the loss of my business, which Tex. Sup. Ct. J. 881 (Tex. 1992). This is a fact-intensive was caused by the Defendants, my credit reputation determination. Heine, 835 S.W.2d at 84. At a minimum, was ruined because I was unable to pay my bills as they opinions of lost-profit estimates must be based on came due. This injury was a natural, probable, and objective facts, figures, or data from which the foreseeable consequence of the Defendants' [**13] lost-profits amount may be ascertained. [**15] wrongful conduct. This injury to credit rating has caused Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at extreme hardship over the past two years and will 84. Although supporting documentation may affect the continue to cause hardship into the foreseeable future. weight of the evidence, it is not necessary to produce in I believe that this loss of credit rating has damaged me court the documents supporting the opinions or in the amount of $ 250,000. estimates. Heine, 835 S.W.2d at 84.

HN10 Texas law provides that in order to recover actual Here, Griffith's affidavit fails to provide a factfinder with damages for loss of credit reputation, a plaintiff must sufficient data to determine her lost profits with first show that a loan was actually denied or a higher reasonable certainty. Her "bare assertion" that she interest rate [*278] charged. St. Paul Surplus Lines Ins. expected to make $ 35,000 in profit for the next five Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53, 41 Tex. years because she made $ 35,000 in profit for the past Sup. Ct. J. 1357 (Tex. 1998). Here, Griffith failed to eight years does not demonstrate a reasonably certain allege any such fact. Again, "there can be no recovery objective determination of lost profits. See Heine, 835 for damages which are speculative or conjectural." S.W.2d at 85 HN12 ("The bare assertion that contracts Roberts, 694 S.W.2d at 135. Accordingly, we hold that were lost does not demonstrate a reasonably certain the evidence of damage to credit reputation is legally objective determination of lost profits."). In fact, though insufficient to support an award of damages. she attributes her financial woes to "seasonal difficulties," the fact that she could not pay her rent c. Lost Profits undermines that conclusion. We hold that the evidence of lost profits is legally insufficient to support an award The Leftons also argue that Griffith's testimony of damages. regarding lost profits is incompetent. Griffith's affidavit provides: 2. Mental Anguish

Because I was forced to sell my entire inventory to a The trial court awarded Griffith $ 290,000 in mental competitor for a fraction of its value, I [had] insufficient anguish damages. The Leftons argue [**16] that cash to pay my suppliers and other creditors, ruining my Griffith's affidavit does not support such an award. valuable trade relationships. Therefore, [**14] as a Griffith's affidavit provides: result of Defendants' actions, Discount Furniture Warehouse went out of business permanently. I have As a result of Defendants' actions, I had irate customers been in business for eight (8) years and probably would calling my home and coming by my house at all hours of Page 7 of 9 136 S.W.3d 271, *278; 2004 Tex. App. LEXIS 2812, **16

the day and night. I suffered severe emotional distress Thus, Griffith must show: (1) that she suffered a high and mental anguish as a result of numerous encounters degree of mental pain and distress; and (2) that $ with angry, frustrated customers whom I was unable to 290,000 is a fair and reasonable amount for the mental help. As a result of Defendants' intentionally cruel anguish she suffered. Here, Griffith's testimony that she actions, I was unable to sleep, was depressed, and "was unable to sleep, was depressed, and suffered suffered [*279] from anxiety. Because I believe that the from anxiety" fails to establish either. Griffith's distress, emotional injury I suffered was just as devastating as while understandable, "does not rise to the level of the loss of my business inventory, I believe that my compensable mental anguish" as defined by Texas law. damages for emotional and mental anguish also equal Id. Additionally, there is no evidence that $ 290,000 "is $ 290,000. fair and reasonable compensation" for the amount she suffered. Id. Accordingly, we hold that the evidence of HN13 Mental anguish damages are appropriate when mental anguish is legally insufficient to support an award there is either "direct evidence of the nature, duration, of damages. and severity of [plaintiffs'] mental anguish, thus establishing a substantial disruption in the plaintiffs' 3. Attorney Fees daily routine," or other evidence of "a high degree of The trial court awarded Griffith $ 2,000 in attorney fees. mental pain and distress" that is "more than mere worry, On appeal, the Leftons argue that there is insufficient anxiety, vexation, or anger." Saenz v. Fid. & Guar. Ins. evidence of attorney fees because the only reference to Underwriters, 925 S.W.2d 607, 614, 39 Tex. Sup. Ct. J. attorney fees in the record is unsworn statements by 743 (Tex. 1996) (citing Parkway Co. v. Woodruff, 901 counsel during the hearing. The Leftons fail, however, S.W.2d 434, 444, 38 Tex. Sup. Ct. J. 828 (Tex. 1995)). to cite authority for this proposition. [**19] TEX. R. APP. [**17] Here, Griffith does not establish the duration of P. 38.1(h). Additionally, the Texas Civil Practices and her anguish. It is not clear how long she "was unable to Remedies Code provides: HN15 "The court may take sleep, was depressed, and suffered from anxiety." judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving Because Griffith does not establish "the nature, duration, further evidence in a proceeding before the court." TEX. and severity of mental anguish," she must show other CIV. PRAC. & REM. CODE § 38.004(1) (Vernon 1997). evidence of "a high degree of mental pain and distress." Moreover, HN16 "even if the trial court did not state that Parkway, 901 S.W.2d at 444. Additionally, "the absence it was taking such judicial notice, [the appellate [*280] of [evidence of the nature, duration, and severity of court] may presume that the trial court did so." Inwood mental anguish], particularly when it can be readily Dad's Club, Inc. v. Aldine Indep. Sch. Dist., 882 S.W.2d supplied or procured by the plaintiff, justifies close 532, 542 (Tex. App.--Houston [1st Dist.] 1994, no writ). judicial scrutiny of other evidence offered on this element Here, the proceeding was before the court. Additionally, of damages." Id. although the trial court did not state that it was taking judicial notice, we may presume that it did. Id. HN14 Texas law also provides: Accordingly, we hold that the evidence of attorney fees Not only must there be evidence of the existence of is legally and factually sufficient to support the award. compensable mental anguish, there must also be some evidence to justify the amount awarded. . . . While the II. Return of Service impossibility of any exact evaluation of mental anguish The Leftons argue that the default judgment as to David requires that juries be given a measure of discretion in Lefton must be set aside because "although the return finding damages, that discretion is limited. Juries cannot [of service] bears a file stamp indicating that it was filed simply pick a number and put it in the blank. They must on November 14, 2002, the file stamp has not been find an amount that, in the standard language of the jury [**20] signed by a representative of the District Clerk's charge, "would fairly and reasonably compensate" for Office." The Leftons fail to cite, however, any case law the loss. . . . Reasonable compensation [**18] is no for the proposition that a file stamp is not valid if it is not easier to determine than reasonable behavior--often it signed by a representative of the district clerk's office. may be harder--but the law requires factfinders to Accordingly, the Leftons failed to properly brief this determine both. issue. TEX. R. APP. P. 38.1(h). Additionally, their argument is without merit. Here, the Saenz, 925 S.W.2d at 614. stamp shows that David Lefton was served on Page 8 of 9 136 S.W.3d 271, *280; 2004 Tex. App. LEXIS 2812, **20

November 14, 2002. The default judgment was granted Heine, 835 S.W.2d at 86 (holding that HN18 when November 25, 2002. Accordingly, the return of service damages awarded in a default judgment after an was on file for ten days before the default judgment was uncontested hearing are supported by either legally or granted. See TEX. R. CIV. P. 107 HN17 ("No default factually insufficient evidence, we must remand the judgment shall be granted in any cause until the citation case for a new trial on those damage issues); Jackson . . . with proof of service as provided by this rule . . . shall v. Gutierrez, 77 S.W.3d 898, 904 (Tex. App.--Houston have been on file with the clerk of the court ten days, [14th Dist.] 2002, no pet.) (reversing and remanding the exclusive of the day of filing and the day of judgment."). trial court's awards for medical expenses, mental Because the Leftons provide no authority for their anguish, pain and suffering, and automobile repair, and argument, and because the return of service was on file affirming the award for lost wages). for ten days before the default judgment was granted, we overrule this issue on appeal. Because there is insufficient evidence to support an award of damages for Griffith's mental anguish, we CONCLUSION reverse the trial court's award for mental anguish and remand the cause for a new trial on mental anguish Because there is insufficient evidence to support an damages. See Heine, 835 S.W.2d at 86. award of damages for Griffith's loss from the sale of her [**21] inventory, loss from the sale of her home, lost We affirm the trial court's award for attorney fees. profits, and damage to credit reputation, we reverse the trial court's award for economic damages and remand Karen Angelini, Justice this cause for a new trial on economic damages. See

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Caution As of: Mar 30, 2015

DOUGLAS LEHMANN AND VIRGINIA LEHMANN, PETITIONERS v. HAR-CON CORPORATION, RESPONDENT; MELVIN G. HARRIS AND HEL- ENA M. HARRIS, PETITIONERS v. HARBOUR TITLE COMPANY, RE- SPONDENT

NO. 99-0406 - consolidated with - NO. 99-0461

SUPREME COURT OF TEXAS

39 S.W.3d 191; 2001 Tex. LEXIS 6; 44 Tex. Sup. J. 364

January 26, 2000, Argued February 1, 2001, Delivered

NOTICE: dered and not cases, like some probate and receivership proceedings, in which multiple judgments final for pur- [**1] poses of appeal can be rendered on certain discrete is- sues. 1 And we consider a judgment's finality only for PRIOR HISTORY: ON PETITIONS FOR RE- purposes of appeal and not for other purposes, such as VIEW FROM THE COURT OF APPEALS FOR THE issue and claim preclusion. 2 In Mafrige v. Ross, 3 we FOURTEENTH DISTRICT OF TEXAS. held that a summary judgment [**2] is final if it con- tains language purporting to dispose of all claims and DISPOSITION: Judgments reversed, cases remand- parties. We gave as one example of such language what ed. we have called a "Mother Hubbard" clause 4 -- a recita- tion that all relief not expressly granted is denied. 5 Since then, the routine inclusion of this general statement in JUDGES: JUSTICE HECHT delivered the opinion of otherwise plainly interlocutory orders and its ambiguity the Court, in which CHIEF JUSTICE PHILLIPS, JUS- in many contexts have rendered it inapt for determining TICE OWEN, JUSTICE ABBOTT, and JUSTICE finality when there has not been a conventional trial. We O'NEILL joined. JUSTICE BAKER filed a concurring no longer believe that a Mother Hubbard clause in an opinion in which JUSTICE ENOCH joined, except for order or in a judgment issued without a full trial can be Part IV and the discussion of Inglish and Bandera, and in taken to indicate finality. We therefore hold that in cases which JUSTICE HANKINSON joined, except for Part in which only one final and appealable judgment can be IV. rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it ac- OPINION BY: Nathan L. Hecht tually disposes of all claims and parties then before the court, regardless of its language, or it states with unmis- OPINION takable clarity that it is a final judgment [*193] as to [*192] In these two consolidated cases we revisit all claims and all parties. In the two cases before us, the the persistent problem of determining when a judgment court of appeals concluded that judgments that do not rendered without a conventional trial on the merits is meet this test were final and dismissed the appeals as final for purposes of appeal. We consider only cases in having been untimely perfected. 6 We reverse and [**3] which one final and appealable judgment can be ren- remand for consideration of the merits of the appeals. Page 2 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

All relief not expressly granted herein is denied. 1 See Crowson v. Wakeham, 897 S.W.2d 779, Signed this the 12 day of March, 1998 783 (Tex. 1995) (involving probate proceedings); Huston v. Federal Deposit Ins. Corp., 800 S.W.2d s/ 845, 847 (Tex. 1990) (involving receivership JUDGE PRESIDING proceedings). 2 See Street v. Second Court of Appeals, 756 [s/ Attorneys for Har-Con Corporation] S.W.2d 299, 301 (Tex. 1988). 3 866 S.W.2d 590 (Tex. 1993). The order did not reference Virginia's claims on be- 4 Teer v. Duddlesten, 664 S.W.2d 702, 704 half of her son against Har-Con, although it would ap- (Tex. 1984). pear that Har-Con's summary judgment on its indemnity 5 Mafrige, 866 S.W.2d 590 n.1. claim would effectively bar recovery for Virginia's son. 6 Lehmann v. Har-Con-Corp., S.W.2d , The order also did not reference Virginia's son's claims 1998 Tex. App. LEXIS 4657 (Tex. App.--Houston against the University, which would not appear to be [14th Dist.] 1998), 988 S.W.2d 415 (1999) (op. affected by Har-Con's summary judgment. The order on reh'g); Harris v. Harbour Title Co., contained a "Mother Hubbard" clause stating that "all S.W.2d , 1999 Tex. App. LEXIS 2708 (Tex. relief not expressly granted herein is denied." App.--Houston [14th Dist.] 1999). The district clerk advised the Lehmanns by postcard I that an interlocutory summary judgment order had is- sued. The record does not reflect whether the parties re- Lehmann v. Har-Con Corp. ceived a copy of the actual order after it was signed. The Lehmanns tell us that the practice of the district clerk in Douglas and Virginia Lehmann sued the University of St. Thomas and Har-Con Corp. in the district court in Harris County is not to send copies of orders to the par- Harris County to recover damages for injuries Douglas ties but to give parties notice by postcard when orders are signed. The notice does not completely describe the suffered in a construction [**4] accident. The Univer- content of the order. sity cross-claimed against Har-Con for indemnity. The Lehmanns settled with Har-Con and executed a release, The Lehmanns [**6] appear to have believed that agreeing in part to indemnify Har-Con against certain the summary judgment order was interlocutory because claims which had been or could be asserted by or they moved to sever it and Har-Con's claims into a sepa- through them. Virginia then filed an amended petition on rate action, ostensibly to make the summary judgment behalf of her minor son against both defendants, claim- final. The court granted the motion to sever on the twen- ing damages for loss of parental consortium because of ty-fifth day after the summary judgment order was his father's injuries. In response, Har-Con filed a coun- signed. Twenty-eight days after the severance [*194] terclaim against Virginia and a third-party petition order was signed, the Lehmanns noticed their appeal against Douglas, seeking indemnity from them under the from the summary judgment order. terms of their prior release. If the summary judgment was not final until the The Lehmanns and Har-Con all moved for summary severance order was signed, then the Lehmanns' appeal judgment on Har-Con's indemnity claims. The district was timely. But the court of appeals held that the sum- court denied the Lehmanns' motion and granted mary judgment order was final when it issued because of Har-Con's motion. The court's order granting Har-Con's the Mother Hubbard clause and that the order was not motion stated in full: modified by the severance so as to restart the time for perfecting appeal. 7 Because the Lehmanns did not per- [caption] fect appeal within thirty days of the signing of the order ORDER as prescribed by the rules of appellate procedure, 8 the court dismissed the appeal for want of jurisdiction. In On this 12 day of March, 1998 came on to be con- holding that the summary judgment order was final, the sidered the Motion for Summary Judgment of court followed our decision in Mafrige, although the HAR-CON CORPORATION. After considering the mo- court expressed concerns that the inclusion of a Mother tion, the response, the summary judgment evidence and Hubbard clause in an otherwise plainly interlocutory the argument of counsel, the Court is of the opinion that order [**7] should not make the order final. the motion should be in all things granted. It is therefore, ORDERED, ADJUDGED AND DECREED that the 7 S.W.2d , 1998 Tex. App. LEXIS 4657; Motion [**5] for Summary Judgment by HAR-CON 988 S.W.2d 415 (op. on reh'g). CORPORATION be and it is hereby GRANTED. Page 3 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

8 See TEX. R. APP. P. 26.1 (appellate time that "all relief requested and not herein granted is de- limits). nied." We granted the Lehmanns' petition for review and The Harrises assert that they received notice of the consolidated it for argument and decision with Harris v. order by a postcard that described the order as an inter- Harbour Title Co. 9 locutory summary judgment, but the postcard is not in our record. The record does not reflect whether the par- 9 43 Tex. Sup. J. 94, 96 (Nov. 12, 1999). ties obtained a copy of the order after it was signed. It appears that the district clerk followed her usual proce- Harris v. Harbour Title Co. dure of notifying the parties by [*195] postcard in lieu of providing copies of the order. Melvin and Helena Harris sued five defendants -- Greenfield Financial Corp. and Larry J. Greenfield ("the The district court apparently did not consider the Greenfield defendants), Tim Rice and Rice Develop- summary judgment order to be final; forty- six days after ment, Inc. ("the Rice defendants"), and Harbour Title Co. it was signed, the court generated a form order setting the -- in the district court in Harris County on case for trial the next year. The Harrises, too, appear to breach-of-contract and tort claims arising from a con- have believed the summary judgment to be interlocutory; veyance of real property. The court granted an interlocu- two weeks after the order issued setting the case for trial, tory default judgment against Tim Rice on liability only, the Harrises obtained what was captioned a "Final De- leaving for later a determination of the [**8] damages fault Judgment" against the Rice defendants. Twen- to be assessed against him. The Harrises nonsuited their ty-five days later the Harrises noticed their appeal from claims against the Greenfield defendants. The fifth de- Harbour Title's summary judgment. fendant, Harbour Title Co., moved for summary judg- If Harbour Title's summary judgment did not dis- ment, which the court granted with the following order: pose of the Harrises' claims against the Rice defendants, [caption] and the [**10] default judgment against those defend- ants was the final order in the case, then the Harrises' Order Granting Harbour Title Company's appeal was timely. But following Mafrige, as it had done Motion for Summary Judgment in Lehmann, the court of appeals concluded that the summary judgment order was final and therefore dis- On August 28, 1998, came on to be heard the Mo- missed the appeal as not having been timely perfected. tion for Summary Judgment of one of the defendants, We granted the Harrises' petition for review and consol- Harbour Title Company, and the Court having consid- idated it with Lehmann for argument and decision. 10 ered the Motion, together with any response, and the supplemental briefing filed by the parties to date is of the 10 43 Tex. Sup. J. 94, 96 (Nov. 12, 1999). opinion that said Motion is with merit and should be granted. It is therefore II ORDERED that defendant Harbour Title Company's A Motion for Summary Judgment is in all things granted; it is further Though its origins are obscure and its rationale has varied over time, 11 the general rule, with a few mostly ORDERED that the Plaintiffs, Melvin G. Harris and statutory exceptions, is that an appeal may be taken only Helena M. Harris take nothing as to any of their claims from a final judgment. 12 A judgment is final for purposes against Harbour Title Company. of appeal if it disposes of all pending parties and claims All relief requested and not herein granted is denied. in the record, except as necessary to carry out the decree. 13 (An order that does not dispose of all pending parties SIGNED this 15 day of October 1998. and claims may also be final for purposes of appeal in s/ some instances, such as orders that resolve certain dis- crete [**11] issues in some probate 14 and receiverships JUDGE PRESIDING 15 cases, but we exclude those cases from consideration APPROVED AND ENTRY REQUESTED: here. Nor do we consider when a judgment may be final for purposes other than appeal, such as claim and issue [s/ Attorneys for Harbour Title Company] preclusion. 16 ) Because the law does not require that a Although the order did not reference the Harrises' final judgment be in any particular form, whether a judi- pending claims against the Rice [**9] defendants, it cial decree is a final judgment must be determined from nevertheless contained a Mother Hubbard clause stating its language and the record in the case. Since timely per- fecting appeal (as well as filing certain post- judgment Page 4 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

motions and requests) hangs on a party's making this In 1881, after struggling with these problems for determination correctly, certainty is crucial. many years, 17 we attempted to resolve them in the case of Linn v. Arambould. 18 There we stated that a final 11 See CHARLES ALAN WRIGHT, AR- judgment after trial must dispose of the issues "intrinsi- THUR R. MILLER, & EDWARD H. COOPER, cally, and not inferentially." 19 That is, specificity was FEDERAL PRACTICE & PROCEDURE §§ strictly required. The results of this rule were predictable. 3906-3907 (1992). Appellate courts frequently declared shabbily drafted 12 See, e.g., North East Indep. Sch. Dist. v. Al- judgments interlocutory even though the trial courts and dridge, 400 S.W.2d 893, 895 (Tex. 1966); Gulf C. the parties had obviously intended for them to [**14] & S.F. Ry. v. Fort Worth & N.O. Ry., 68 Tex. 98, be final. 20 Confused parties were spending time and 2 S.W. 199, 200 (Tex. 1886), op. on reh'g, 68 Tex. money attempting to appeal from possibly final judg- 106, 3 S.W. 564 (1887); see TEX. CONST. art. V, ments, only to have the appellate courts dismiss the ap- § 3-b (direct appeals to the Supreme Court); TEX. peals for want of jurisdiction. 21 As this Court later re- CIV. PRAC. & REM. CODE §§ 15.003(c) (inter- flected on Arambould's intrinsic-disposition requirement locutory joinder and intervention appeals), 51.012 for finality: (court of appeals jurisdiction), 51.014 (interlocu- By its application most judgments easily became tory appeals); TEX. GOV'T CODE §§ 22.001(c) black or white -- final or interlocutory; but all too often (direct appeals), 22.225(d) (interlocutory appeal judgments which were obviously intended to be final to the Supreme Court). were being held interlocutory because of careless [**12] draftsmanship. The rule had to be changed to accommo- 13 See Jack B. Anglin Co., v. Tipps, 842 date oversight or carelessness. 22 S.W.2d 266, 272 (Tex. 1992); Linn v. Arambould, 55 Tex. 611, 617-18 (1881) (surveying several 17 See Hanks v. Thompson, 5 Tex. 6, 8 (1849) tests for determining when a judgment is final). (defining a final judgment as awarding the judi- See generally 49 C.J.S. Judgments § 11 (1947); cial consequences which the law attaches to the 46 AM. JUR. 2D Judgments § 200-206 (1994). facts and determining the subject matter of the 14 Crowson v. Wakeham, 897 S.W.2d 779, 783 controversy between the parties); accord West v. (Tex. 1995). Bagby, 12 Tex. 34 (1854). See also Fitzgerald v. 15 Huston v. Federal Deposit Ins. Corp., 800 Fitzgerald, 21 Tex. 415 (1858); Hancock v. Metz, S.W.2d 845, 847 (Tex. 1990). 7 Tex. 177 (1851) (both holding that a judgment 16 See Street v. Second Court of Appeals, 756 for the defendant for costs did not constitute a fi- S.W.2d 299, 301 (Tex. 1988). nal judgment); Warren v. Shuman, 5 Tex. 441, From the beginning, however, certainty in deter- 450 (Tex. 1849) (finding that a judgment that mining whether a judgment is final has proved elusive. awards costs without disposing of the subject What has vexed courts in this State and elsewhere is this: matter of the controversy is not a final judgment). must a final judgment dispose of all parties and claims See generally 31 JEREMY C. WICKER, TEXAS specifically, or may it do so by general language or even PRACTICE, CIVIL TRIAL & APPELLATE by inference? If a specific disposition of each party and PROCEDURE § 506, at 289-311 (1985) (chroni- [*196] claim is strictly required, a judgment apparently cling, in depth, the challenges of distinguishing intended by the parties and the trial court to be final and between final and interlocutory judgments in appealable may not be. An appeal from such a judgment various contexts beginning in the mid-19th cen- must be dismissed [**13] or at least abated, resulting in tury). delay and a waste of the courts' and the parties' re- [**15] sources. More importantly, if a judgment intended to be 18 55 Tex. 611 (1881). final did not meet the strict requirements, then the case 19 Id. at 619. would remain open, allowing the possibility of further 20 See Aldridge, 400 S.W.2d at 895. proceedings and appeal years later. On the other hand, if 21 See, e.g., East & West Tex. Lumber Co. v. a judgment may dispose of all parties and claims by gen- Williams, 71 Tex. 444, 9 S.W. 436 (Tex. 1888); eral language or inference, a party or trial court may Hill v. Templeton, 25 S.W. 652 (Tex. Civ. App. think that a judgment is interlocutory, only to be told 1894); Mills v. Paul, 4 Tex. Civ. App. 503, 23 later by the appellate court after the time for appeal has S.W. 395 (Tex. Civ. App. 1893). passed that the judgment was final. A party who is un- 22 Aldridge, 400 S.W.2d at 895. certain whether a judgment is final must err on the side In 1896 we altered course. In Rackley v. Fowlkes, 23 of appealing or risk losing the right to appeal. the plaintiff had, in a prior suit, sued for title to real Page 5 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

property and for rent for the four years the property was volving cross-claims and counterclaims. Some courts in the defendant's possession, but at trial he offered no treated judgments that merely implicitly disposed of all evidence of the amount of rent due until after the evi- claims as final, while other courts required that final dence was closed, and because the offer was late the judgments expressly adjudicate each claim. 27 In 1913, court refused to hear it. The court in that suit rendered the Court resolved the conflict in Trammell v. Rosen, 28 judgment awarding title to the plaintiff without mention- rejecting the rule stated in Arambould. The plaintiff in ing his claim for rent. When the plaintiff filed a second Trammell sued on a promissory note secured by property suit for the rent, the defendant asserted res judicata in that the defendant and his wife claimed was their home- defense. The trial court rendered judgment for the plain- stead. The couple counterclaimed to establish their tiff, concluding [**16] that the rent claim had not been homestead claim and for damages for wrongful seques- adjudicated in the prior suit, and the court of civil ap- tration. The trial court instructed a verdict for the plain- peals affirmed. We reversed the judgments of the lower tiff on his claim and against the defendants on their courts, not because the rent claim should have been ad- counterclaim. The judgment recited the verdict and judicated [*197] in the first suit, but because it was awarded damages to the plaintiff but did not mention the adjudicated: counterclaim. 29 Citing Rackley, the Court concluded that the judgment was final, reasoning that by granting the The proposition seems to be sound in principle and plaintiff's claim the trial court implicitly but necessarily well supported by authority that where the pleadings and denied the defendants' counterclaim. 30 Still, the Court judgment in evidence show that the pleadings upon strongly encouraged courts to expressly address each which the trial was had put in issue plaintiff's right to claim and party in final judgments to avoid further con- recover upon two causes of action, and the judgment fusion: [**19] awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that We feel constrained to hold that the judgment of the he was not entitled to recover upon such other cause. trial court, although irregular and imperfect in form, is This liberal construction of the judgment against the sufficient to support the appeal. However, we feel im- party who sought to recover therein is supported by the pelled to say, also, that we think that, as a matter of prac- presumption that the court performed the duty devolved tice, and to avoid confusion, every final judgment should upon it upon the submission of the cause by disposing of plainly, explicitly, and specifically dispose of each and every issue presented by the pleadings so as to render its every party to the cause, and of each and every issue judgment final and conclusive of the litigation, and by therein presented by the pleadings. 31 the further fact that the policy of the law favors the speedy settlement of litigation and opposes the harassing 27 See Trammell v. Rosen, 106 Tex. 132, 157 of the defendant with two suits for the same cause. S.W. 1161, 1162 (Tex. 1913) (listing the various [**17] 24 appellate courts subscribing to each school of construction). 23 89 Tex. 613, 36 S.W. 77, 78 (Tex. 1896). 28 Id. 24 Rackley, 36 S.W. 77 at 78 (citations omit- 29 Trammell, 157 S.W. at 1161. ted). 30 Trammell, 157 S.W. at 1161-1163. 31 Trammell, 157 S.W. at 1163. See also Bur- Three years later we used the rule stated for purpos- ton Lingo Co. v. First Baptist Church, 222 S.W. es of res judicata in Rackley to determine whether a 203, 204 (Tex. Comm'n App. 1920, holding ap- judgment was final for purposes of appeal. In Davies v. proved) (citing Trammell for support of its pre- Thomson, 25 the plaintiffs sued for money and an interest sumption that the judgment disposed of a claim). in real property as their share of a joint venture. The trial court rendered judgment on a jury verdict awarding the [*198] Two cases decided after Trammell suggest plaintiffs money without mentioning the claim for an that the entire record should be considered in determin- interest in real property. We held that the judgment dis- ing [**20] whether a post-trial judgment is final. In posed of both claims was therefore final and appealable. Hargrove v. Insurance Investment Corp., we held that a 26 judgment for the plaintiff was final when "considered as a whole in the light of the entire record". 32 Similarly, in 25 92 Tex. 391, 49 S.W. 215 (Tex. 1899). Ferguson v. Ferguson, we held that a judgment awarding 26 Davies, 92 Tex. 391, 49 S.W. 215 at 217. the plaintiff recovery on some of her claims while silent Neither Rackley nor Davies mentioned Arambould as to others was final, stating that "in arriving at whether or attempted to reconcile their results with the rule in that or not a judgment is final, the pleadings and evidence case, thereby generating [**18] confusion in the appel- must also be taken into consideration". 33 Neither case late courts over how to determine finality in cases in- should be read to deviate from the presumptive rule of Page 6 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

Trammell. We did not hold in either case that the record We added: "Of course, the problem [of determining could be used to show that a post-trial judgment final on whether judgments are final] can be eliminated entirely its face was really not final. In two other cases during the by a careful drafting of judgments [**23] to conform to same time period we did not mention the record in ap- the pleadings or by inclusion in judgments of a simple plying Trammell. 34 statement that all relief not expressly granted is denied." 38 Inclusion of a catch-all statement -- which we later 32 142 Tex. 111, 176 S.W.2d 744, 746 (Tex. denominated a "Mother Hubbard" clause 39 -- would 1944). make clear that a post-trial judgment on the merits, pre- 33 161 Tex. 184, 338 S.W.2d 945, 947 (Tex. sumed to have disposed of all claims, did indeed do so. 1960). 34 Gamble v. Banneyer, 137 Tex. 7, 151 38 Id. at 898. S.W.2d 586 (Tex. 1941); Vance v. Wilson, 382 39 Teer v. Duddlesten, 664 S.W.2d 702, 704 S.W.2d 107 (Tex. 1964) (res judicata). (Tex. 1984). [**21] In 1966, we reaffirmed Rackley, Davies, [*199] B and Trammell in Northeast Independent School District The presumption that a judgment rendered after a v. Aldridge. 35 The school district sued Aldridge for conventional trial on the merits is final and appealable breach of contract, and he asserted in his defense that he has proved fairly workable for nearly a century, but we had contracted only as an agent for his principal. He also have never thought that it could be applied in other cir- brought a third-party action against his principal, alleg- cumstances, as we first explained nearly sixty years ago. ing that the principal was responsible for any damages to In Davis v. McCray Refrigerator Sales Corp., 40 the which the school district might be entitled. The trial plaintiff sued for the unpaid balance of the purchase court granted a partial summary judgment holding Al- price of a refrigerator, and the defendant counterclaimed dridge personally liable to the district and directed that for cancellation of the debt and for damages for pay- the case proceed to trial to determine the amount of ments already made and lost merchandise due to im- damages to be awarded. The parties then stipulated to the proper refrigeration. [**24] The defendant also filed a amount of damages, and the trial court rendered judg- plea in abatement on the grounds that the plaintiff was a ment for the district against Aldridge based on the stipu- foreign corporation not licensed to do business in Texas lation. The judgment did not mention Aldridge's and therefore not entitled to sue in state court. The trial third-party action against his principal. The court of civil court deferred ruling on the defendant's plea until after appeals dismissed Aldridge's appeal, holding that the the case was tried on the merits. After the jury returned a trial court's judgment was not final. 36 We held that the verdict, the trial court rendered judgment both that the judgment against Aldridge disposed of the third-party plaintiff's claim be dismissed and that the plaintiff take action and was final for purposes of appeal. After re- nothing. 41 The only basis the trial court had for dismissal viewing the courts' historical difficulties in making final- was the defendant's plea in abatement, while the only ity determinations, we stated [**22] the following rule basis for rendering a take-nothing judgment was plain- for determining, in most instances, whether judgments in tiff's failure of proof at trial. The judgment did not men- which parties and issues made by the pleadings are not tion the defendant's counterclaim. The court of civil ap- disposed of in express language are, nevertheless, final peals rejected the defendant's argument that the judgment for appeal purposes. When a judgment, not intrinsically was interlocutory and reversed and rendered judgment interlocutory in character, is rendered and entered in a for the plaintiff. 42 This Court reversed and dismissed the case regularly set for conventional trial on the merits, no appeal. Citing Trammell, the Court acknowledged that order for a separate trial of issues having been entered . . while a final judgment need not expressly dispose of ., it will be presumed for appeal purposes that the Court each issue so long as other provisions of the judgment intended to, and did, dispose of all parties legally before necessarily imply that the unmentioned issues have been it and of all issues made by the pleadings between such disposed of, a dismissal of the plaintiff's suit did not parties. 37 necessarily imply a disposal of [**25] the defendant's cross-action. 43 The Court explained: 35 400 S.W.2d 893 (Tex. 1966). 36 Aldridge v. Northeast Indep. Sch. Dist., 392 If the court had intended to merely sustain the plea S.W.2d 607 (Tex. Civ. App.--San Antonio 1965), in abatement and dismiss plaintiff's suit, and had intend- rev'd and remanded, 400 S.W.2d 893 (Tex. 1966). ed to retain the defendant's cross-action for further con- 37 400 S.W.2d at 897-898. sideration, it would have entered the very judgment that was entered in this case. The mere failure of the judg- ment to refer to defendant's cross-action was not suffi- Page 7 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

cient in itself to raise an inference that it was thereby interlocutory merely because it recites that it is partial or intended to dispose of the cross-action. 44 refers to only some of the parties or claims. Thus, if a court has dismissed all of the claims in a case but one, 40 136 Tex. 296, 150 S.W.2d 377 (Tex. 1941). [**28] an order determining the last claim is final. 48 41 McCray Refrigerator Sales Corp. v. Davis, This is settled law in Texas, and while there have been 140 S.W.2d 477, 478 (Tex. Civ. App.--Fort Worth proposals to change it by rule, proposals that are cur- 1940), rev'd, 136 Tex. 296, 150 S.W.2d 377 (Tex. rently pending consideration by this Court's Advisory 1941). Committee, we are not inclined to depart from it here. 42 Id. The language of an order or judgment cannot make it 43 150 S.W.2d at 378. interlocutory when, in fact, on the record, it is a final 44 Id. disposition of the case. Although the judgment did not "merely" sustain the 47 Farmer v. Ben E. Keith Co., 907 S.W.2d plea in abatement but also decreed that the plaintiff take 495, 496 (Tex. 1995) (per curiam); H. B. Zachry nothing, the inclusion of the dismissal in the judgment as Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. the first basis for decision was enough to make [**26] 1963) (per curiam); McEwen v. Harrison, 162 Trammell's presumptive finality rule inapplicable. Tex. 125, 345 S.W.2d 706, 707 (Tex. 1961). Davis may have departed too far from Trammell. 48 Farmer, 907 S.W.2d at 496; H. B. Zachry The trial court's decree following a jury trial on the mer- Co., 364 S.W.2d at 193; McEwen, 345 S.W.2d at its that the plaintiff take nothing without mention of the 707. defendant's counterclaim should perhaps have been pre- But the language of an order or judgment can make sumed to deny all relief, despite the alternative ruling it final, even though it should have been interlocutory, if that the plaintiff's claim should be dismissed. But re- that language expressly disposes of all claims and all gardless of Davis's unusual circumstances, the case parties. It is not enough, [**29] of course, that the makes the point, which we expressly acknowledged in order or judgment merely use the word "final". The in- Aldridge, that "it will not be presumed that a judgment tent to finally dispose of the case must be unequivocally dismissing a plaintiff's suit on nonsuit, plea to the juris- expressed in the words of the order itself. But if that in- diction, plea in abatement, for want of prosecution, etc., tent is clear from the order, then the order is final and also disposed of the issues in an independent appealable, even though the record does not provide an cross-action." 45 adequate basis for rendition of judgment. So, for exam- ple, if a defendant moves for summary judgment on only 45 Aldridge, 400 S.W.2d at 897. one of four claims asserted by the plaintiff, but the trial We have since held that "etc." includes default court renders judgment that the plaintiff take nothing on judgments and summary judgments. 46 The reason for not all claims asserted, the judgment is final -- erroneous, but applying a presumption in any of these circumstances final. 49 A judgment that grants more relief than a party is [*200] is that the ordinary expectation that supports the entitled to is subject to reversal, but it is not, for that presumption that a judgment [**27] rendered after a reason alone, interlocutory. 50 conventional trial on the merits will comprehend all claims simply does not exist when some form of judg- 49 Young v. Hodde, 682 S.W.2d 236 (Tex. ment is rendered without such a trial. On the contrary, it 1984) (per curiam); Chessher v. Southwestern is quite possible, perhaps even probable these days in Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) cases involving multiple parties and claims, that any (per curiam). judgment rendered prior to a full-blown trial is intended 50 Continental Airlines, Inc. v. Kiefer, 920 to dispose of only part of the case. Accordingly, the fi- S.W.2d 274 (Tex. 1995). nality of the judgment must be determined without the Texas [**30] appellate courts, this Court included, benefit of any presumption. have had difficulty determining when a judgment is final on its face -- by its own express terms, in other words -- 46 See, e.g., Houston Health Clubs, Inc. v. even though it should not have been because no suffi- First Court of Appeals, 722 S.W.2d 692 (Tex. cient basis for rendering a final judgment was presented. 1986), and the cases cited therein. In Schlipf v. Exxon Corp., 51 the plaintiffs sued for gas A judgment that finally disposes of all remaining royalties and prejudgment interest, and moved for sum- parties and claims, based on the record in the case, is mary judgment only on the royalties issue. Neither the final, regardless of its language. 47 A judgment that actu- defendant nor an intervenor moved for summary judg- ally disposes of every remaining issue in a case is not ment against the plaintiffs. The trial court granted the Page 8 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

plaintiffs' motion, awarding the royalties claimed, but 55 Teer v. Duddlesten, 664 S.W.2d 702, 704 denied prejudgment interest. The judgment recited: (Tex. 1984). [**33] [*201] We held that this language conclusively dis- 56 Id. posed of all parties and issues, as it clearly did, although 57 E.g., Bethurum v. Holland, 771 S.W.2d 719 in reaching this conclusion, we reiterated our observation (Tex. App.--Amarillo 1989, no writ); Sakser v. in Aldridge that the finality of a judgment would be Fitze, 708 S.W.2d 40, 42 (Tex. App.--Dallas made clear "by inclusion . . . of a simple statement that 1986, no writ) (declaring that a Mother Hubbard all relief not expressly granted is denied." 53 This obser- clause in an order does not convert an intrinsical- vation, appropriate in Aldridge in reference to judgments ly interlocutory partial summary judgment into a after a conventional trial on the merits, was misleading in final judgment). Schlipf, because the only "relief" properly under consid- 58 E.g., Georgetown Assoc., Ltd. v. Home Fed. eration when the order issued [**31] was that raised by Sav. & Loan Ass'n, 795 S.W.2d 252, 253 (Tex. the motion for summary judgment 54 -- the plaintiffs' en- App.--Houston [14th Dist.] 1990, writ dism'd titlement to royalties. After a full trial on the merits, the w.o.j.); Hodde v. Young, 672 S.W.2d 45, 47 (Tex. statement in a judgment that all relief not requested is App.--Houston [14th Dist.]) (holding that a denied signifies finality; there is no expectation that the judgment was final and appealable because it court tried only part of the case, absent an order for sev- contained a Mother Hubbard clause), writ ref'd, erance or separate trials. But after a motion for partial n.r.e., 682 S.W.2d 236 (Tex. 1984) (per curiam) summary judgment, the same statement in a judgment is (noting that the erroneous rendition of a final ambiguous. It may refer only to the motion on which the judgment is not fundamental error). trial court is ruling, not to all claims of all parties, and We attempted to clarify matters in Mafrige v. Ross. not even to other claims of the movant. 59 There, two plaintiffs sued some twelve defendants for malicious prosecution, slander, libel, conspiracy, and 51 644 S.W.2d 453 (Tex. 1982) (per curiam). negligence. 60 No party other than the plaintiffs asserted the relief herein granted Plaintiffs, . . . is in satisfac- any claims. [**34] The defendants, some individually tion of all of their claims and causes of action . . . and all and some in groups, filed a total of eight summary judg- claims and/or causes of action herein asserted by all par- ment motions, some directed against one of the plaintiffs ties herein and not herein granted are hereby in all things and some against both. 61 Only one motion addressed denied and concluded . . . . 52 both of the plaintiffs and all of the claims asserted; 62 even together, the other seven motions did not address 52 Id. at 454. both plaintiffs and all claims. 63 The trial court granted all [**32] eight motions with eight separate orders, one for each 53 Id. motion. 64 Each order stated that the [*202] plaintiff or 54 See New York Underwriters Ins. Co. v. plaintiffs, depending on whether the motion had been Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per directed at one or both, were to take nothing against the curiam); Young v. Hodde, 682 S.W.2d 236 (Tex. movant or movants. 65 Thus, taken together, the eight 1984) (per curiam); Chessher v. Southwestern orders provided that both of the plaintiffs were to take Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) nothing against all of the defendants. On the plaintiffs' (per curiam). appeal, however, the court of appeals held that there was not a final judgment because most of the defendants had Two years later, in Teer v. Duddlesten, we empha- not moved for summary judgment on all claims by both sized that the Aldridge language -- all relief not expressly plaintiffs and thus were not entitled to a final judgment, granted is denied -- which we termed for the first time a and the "take nothing" language of the orders did not "Mother Hubbard" clause, has no place in partial sum- make them final. 66 The court also held that if the orders mary judgments because, by definition, those proceed- had contained Mother Hubbard clauses they would have ings do not address all of the facts and issues in a case. 55 been final under this Court's precedents, [**35] alt- A Mother Hubbard clause, we said, could not convert a hough the court of appeals did not agree that that would partial summary judgment into a final order. 56 Following have been the proper result. 67 Teer, most courts of appeals held that a Mother Hubbard clause could not make final a judgment rendered without 59 866 S.W.2d 590 (Tex. 1993). a full trial, 57 although other courts reached the contrary 60 Id. at 590. conclusion. 58 61 Id. 62 Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385, 388-389 (Tex. App.--Houston [14th Dist.] Page 9 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

1992), rev'd sub nom. Mafrige v. Ross, 866 70 875 S.W.2d 311 (Tex. 1994) (per curiam). S.W.2d 590 (Tex. 1993). 71 Id. at 313. 63 Id. 72 Id. 64 866 S.W.2d at 590-591. 73 Id. 65 Id. But in Bandera Electric Cooperative, Inc. v. 66 Ross, 834 S.W.2d at 394. Gilchrist, 74 we held that [**38] a Mother Hubbard 67 Ross, 834 S.W.2d at 393-394. clause in a summary judgment made it final. There the We reversed, holding that the "take nothing" lan- plaintiff moved for summary judgment on its claims guage in the eight summary judgment orders disposed of without mentioning the defendant's counterclaims. 75 The all claims asserted by both plaintiffs against each of the defendant did not move for summary judgment. The trial defendants and thus constituted a final judgment. We court [*203] granted the plaintiff's motion by order then explained: that included a Mother Hubbard clause. We concluded that the order was final, albeit erroneous. 76 We attempted If a summary judgment order appears to be final, as to explain that our ruling was consistent with Martinez evidenced by the inclusion of language purporting to because the conflict in the orders involved in that case dispose of all claims or parties, the judgment should be showed that they were not final even though "a Mother treated as final for purposes of appeal. If the judgment Hubbard clause . . . would have created a final and ap- grants [**36] more relief than requested, it should be pealable judgment". 77 Besides its obvious inadequacy in reversed and remanded, but not dismissed. We think this explaining the result in Martinez, this explanation sug- rule to be practical in application and effect; litigants gested that a Mother Hubbard clause would by itself should be able to recognize a judgment which on its face make any summary judgment final, contrary to our purports to be final, and courts should be able to treat holding in Teer. such a judgment as final for purposes of appeal. 68 74 946 S.W.2d 336 (Tex. 1997) (per curiam). 68 Mafrige, 866 S.W.2d at 592; accord 75 Id. at 337. Springer v. Spruiell, 866 S.W.2d 592 (Tex. 1993) 76 Id. (per curiam). 77 Id. at 337 n.2. Determining [**39] the significance of omitting a As examples of "language purporting to dispose of all Mother Hubbard clause in an order has been no easier. In claims or parties," we gave not only the "take nothing" Park Place Hosp. v. Estate of Milo, we suggested that the language of the orders before us, and the statement that absence of a Mother Hubbard clause indicated that a summary judgment is granted as to all claims asserted, summary judgment was intended to be interlocutory. 78 but also the standard Mother Hubbard clause -- that all There, the trial court granted summary judgment for relief not expressly granted is denied. 69 In so doing we three of five remaining defendants and later severed the revived the ambiguity created in Schlipf that Teer had judgment from the case. We concluded that the judgment tried to end. did not become final for purposes of appeal until it was severed, in part based on the omission of a Mother Hub- 69 Mafrige, 866 S.W.2d at 590 n.1. bard clause. But in two other cases we held that the [**37] The ambiguity has persisted in our deci- omission of a Mother Hubbard clause did not make a sions. In Martinez v. Humble Sand & Gravel, Inc., 70 we summary judgment interlocutory that otherwise appeared held that the inclusion of a Mother Hubbard clause in an final. In Continental Airlines, Inc. v. Kiefer, 79 the de- order did not necessarily make it final. There, some but fendant moved for summary judgment "on all claims not all of the defendants moved for summary judgment, brought by" the plaintiffs. After the motion was filed, but and the trial court granted the motions, dismissing the before it was heard and decided, the plaintiffs amended plaintiff's cause of action against "those Defendants", but their pleadings to add additional claims. The defendant also ordering that summary judgment was proper "as to did not amend its motion to address these later claims. all remaining Defendants", thereby suggesting that the The trial court granted what it entitled a "final summary court intended to render a final summary judgment. 71 judgment", dismissing the plaintiffs' cause of action" -- However, the trial court subsequently severed the sum- "cause", singular -- although multiple causes of action mary judgment by order inviting other defendants to [**40] had been asserted. We held that the judgment move on the same grounds. 72 Although this order con- was final, explaining as follows: tained a Mother Hubbard clause, we held that judgment Finality "must be resolved by a determination of the had not been rendered for the non-moving defendants. 73 intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion Page 10 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

by the conduct of the parties." 5 RAY W. MCDONALD, than that it appears in a form book or resides on a word TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Cov- processor. For whatever reason, the standard Mother ell, ed., 1992 ed.); see Ferguson v. Ferguson, 161 Tex. Hubbard clause is used in interlocutory orders so fre- 184, 338 S.W.2d 945, 947 (Tex. 1960). In the circum- quently that it cannot be taken as any indication of final- stances described here, we think the district court in- ity. tended to render a final, appealable judgment. . . . Nei- As we have already explained, an order can be a fi- ther the parties nor the court of appeals have suggested nal judgment for appeal purposes even though it does not that the judgment was not final. 80 purport to be if it actually disposes of all claims still pending in the case. Thus, an order that grants a motion 78 909 S.W.2d 508, 510 (Tex. 1995). for partial summary judgment is final if in fact it dispos- 79 920 S.W.2d 274, 276 (Tex. 1996). es of the only remaining issue and party in the case, even 80 Id. at 277. [**43] if the order does not say that it is final, indeed, even if it says it is not final. (Again, we do not consider The judgment did not include a Mother Hubbard clause, here the various kinds of cases in which there may be but we did not find its omission significant. We reached more than one final judgment for purposes of appeal.) a similar conclusion in Inglish v. Union State Bank. 81 Also, an order can be final and appealable when it should not be. For example, an order granting a motion for 81 945 S.W.2d 810 (Tex. 1997) (per curiam). summary judgment that addressed all of the plaintiff's claims when it was filed but did not address claims [**41] In sum, our opinions have not been entire- timely added by amendment after the motion was filed ly consistent on whether the inclusion or omission of a may state unequivocally that final judgment is rendered Mother Hubbard clause does or does not indicate that a that the plaintiff take nothing by his suit. Granting more summary judgment is final for purposes of appeal. This relief than the movant is entitled to makes the order re- ambivalence has resulted in considerable confusion in versible, but not interlocutory. 83 the courts of appeals. 82 83 See Young v. Hodde, 682 S.W.2d 236, 237 82 See, e.g., Elaine A. Carlson & Karlene S. (Tex. 1984) (per curiam); Chessher v. Southwest- Dunn, Navigating Procedural Minefields: Nu- ern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. ances in Determining Finality of Judgments, 1983) (per curiam); Schlipf v. Exxon Corp., 644 Plenary Power, and Appealability, 41 SO. TEX. S.W.2d 453 (Tex. 1983) (per curiam). L. REV. 953, 969-1001 (2000); William J. Cor- nelius & David F. Johnson, Tricks, Traps, and While the present problems in determining whether Snares in Appealing a Summary Judgment in an [**44] order is a final judgment should be lessened Texas, 50 Baylor L. Rev. 813, 825-835 (1998). significantly by denying the standard Mother Hubbard clause of any indicia of finality in any order not issued III after a conventional trial, the difficulty in determining what does make an order final and appealable remains. A One solution would be stricter requirements for the form Much confusion can be dispelled by holding, as we of a final judgment. Rule 58 of the Federal Rules of Civil now do, that the inclusion of a Mother Hubbard clause -- Procedure takes this approach by requiring that to be by which we mean the statement, "all relief not granted is final a judgment must "be set forth on a separate docu- denied", or essentially those words -- [*204] does not ment" and be entered by the clerk on the civil docket. indicate that a judgment rendered without a conventional The separate-document requirement was added to the trial is final for purposes of appeal. We overrule Mafrige rule in 1963 to remove uncertainty over whether a trial [**42] to the extent it states otherwise. If there has been judge's opinion or order constituted a final judgment. 84 a full trial on the merits either to the bench or before a Rule 58, with its dual requirements, "'enhances certainty jury, the language indicates the court's intention to finally by insisting on formality.'" 85 The United States Supreme dispose of the entire matter, assuming that a separate or Court has insisted on strict compliance with the rule, bifurcated trial is not ordered. But in an order on an in- quoting Professor Moore's observation that the rule terlocutory motion, such as a motion for partial summary "'would be subject to criticism for its formalism judgment, the language is ambiguous. It may mean only were it not for the fact that something like this was that the relief requested in the motion -- not all the relief needed to make certain when a judgment becomes effec- requested by anyone in the case -- and not granted by the tive, which has a most important bearing, inter alia, on order is denied. The clause may also have no intended the time for appeal and the making of post-judgment meaning at all, having been inserted for no other reason Page 11 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

[**45] motions that go to the finality of the judgment In the past we have tried to ensure that the right to [*205] for purposes of appeal.'" 86 appeal is not lost by an overly technical application of the law. 91 Fundamentally, this principle should guide in 84 Bankers Trust Co. v. Mallis, 435 U.S. 381, determining whether an order is final. Simplicity and 384-385, 55 L. Ed. 2d 357, 98 S. Ct. 1117 (1978). certainty in appellate procedure are nowhere more im- 85 CHARLES ALAN WRIGHT, ARTHUR R. portant than in determining the time for perfecting ap- MILLER, & MARY KAY KANE, FEDERAL peal. From the cases we have reviewed here, we con- PRACTICE & PROCEDURE § 2781 (2d ed. clude that when there has not been a conventional trial 1995) (quoting Benjamin Kaplan, Amendments of on the merits, an order or judgment is not final for pur- the Federal Rules of Civil Procedure, 1961-1963, poses of appeal unless it actually disposes of every 77 HARV. L. REV. 801, 831 (1964)). pending claim and party or unless it clearly and une- 86 United States v. Indrelunas, 411 U.S. 216, quivocally states that it finally disposes of all claims and 220-221, 36 L. Ed. 2d 202, 93 S. Ct. 1562 (1973). all parties. An order that adjudicates only the plaintiff's claims against the defendant does not adjudicate [**48] a counterclaim, cross-claim, or third party claim, nor The one recognized exception is a party's failure to ob- does an order adjudicating claims like the latter dispose ject. 87 of the plaintiff's claims. An order that disposes of claims by only one of multiple plaintiffs or against one of mul- 87 Bankers Trust, 435 U.S. at 387-388. tiple defendants does not adjudicate claims by or against The price of certainty, however, as federal rulemak- other parties. An order does not dispose of all claims and ers have come to realize, is that in many cases the failure all parties merely because it is entitled "final", or because to comply with Rule 58 means that no final [**46] the word "final" appears elsewhere in the order, or even judgment was ever rendered, and the time for appeal because it awards costs. Nor does an order completely remains open. 88 A proposed amendment to Rule 58 dispose of a case merely because it states that it is ap- would provide that if final judgment is not rendered on a pealable, since even interlocutory orders may sometimes separate document, it is deemed rendered on the sixtieth be appealable. Rather, there must be some other clear day after the clerk's entry on the civil docket. 89 While indication that the trial court intended the order to com- this proposal helps ensure that every case will be closed, pletely dispose of the entire case. Language that the it also makes it more likely that a party will not be aware plaintiff take nothing by his claims in the case, or that the that the time for appeal is running -- the problem the case is dismissed, shows finality if there are no other 1963 amendment to Rule 58 was meant to cure -- be- claims by other parties; but language that "plaintiff take cause he does not know of the clerk's entry on the civil nothing by his claims against X" when there is more than docket. one defendant or other parties in the case does not indi- cate finality. & PROCEDURE OF THE JUDICIAL CON- 91 Verburgt v. Dorner, 959 S.W.2d 615, FERENCE OF THE UNITED STATES, PRE- 616-617 (Tex. 1997). LIMINARY DRAFT OF PROPOSED [**49] To determine whether an order disposes of AMENDMENTS TO THE FEDERAL RULES all pending claims and parties, it may of course be nec- OF APPELLATE, BANKRUPTCY, CIVIL, essary for the appellate court [*206] to look to the AND CRIMINAL PROCEDURE 100-114 (Aug. record in the case. Thus, in the example just given, if the 2000). record reveals that there is only one plaintiff and only 89 Id. one defendant, X, the order is final, but if the record re- There may be other solutions to these dilemmas veals the existence of parties or claims not mentioned in which could be implemented by changes in our own the order, the order is not final. On the other hand, an rules, and this Court's Advisory Committee is presently order that expressly disposes of the entire case is not studying the issues. But we do not write rules by opinion. interlocutory merely because the record fails to show an 90 [**47] We must decide what Texas law requires for adequate motion or other legal basis for the disposition. finality given the present rules. The record may help illumine whether an order is made final by its own language, so that an order that all parties 90 State Dept. of Highways & Pub. Transp. v. appear to have treated as final may be final despite some Payne, 838 S.W.2d 235, 241 (Tex. 1992); Al- vagueness in the order itself, while an order that some varado v. Farah Mfg. Co., 830 S.W.2d 911, 915 party should not reasonably have regarded as final may (Tex. 1992). not be final despite language that might indicate other- wise. Page 12 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

One may argue after Aldridge and Mafrige that it is guage can ever be read to grant more relief than request- perilous to suggest any particular language that will ed by the parties." 94 This goes too far. The legitimate make a judgment final and appealable because that lan- problem with Mother Hubbard clauses, which we failed guage can then be inserted in orders intended to be inter- to appreciate in Mafrige, is that they are ambiguous: one locutory. But to leave in [**50] doubt the degree of cannot be sure whether the denial of all relief other than clarity required for finality creates its own problems. The what has been expressly [*207] granted is limited to Mother Hubbard clause proved to give no indication of relief requested in a motion or extends to all relief re- finality not just because it found its way into every kind quested in the litigation. But it is a long way from the of order, but because it was inherently ambiguous, as we now well-established fact that Mother Hubbard clauses have explained. A statement like, "This judgment finally can understandably be misread to the concurring opin- disposes of all parties and all claims and is appealable", ion's conclusion that clear language should be given no would leave no doubt about the court's intention. An or- meaning. We require certainty for finality, but we cannot der must be read in light of the importance of preserving say that certainty is impossible. a party's right to appeal. If the appellate court is uncertain about the intent of the order, it can abate the appeal to 94 Post, 39 S.W.3d 191, 2001 Tex. LEXIS 6, permit clarification by the trial court. 92 But if the lan- *89. guage of the order is clear and unequivocal, it must be The concurring opinion claims as authority for its given effect despite any other indications that one or position pre-Mafrige law, but before Mafrige, this Court more parties did not intend for the judgment to be final. repeatedly held that general language in a summary An express adjudication of all parties and claims in a judgment finally disposed [**53] of the litigation even case is not interlocutory merely because the record does though no party had requested final relief. In Schlipf v. not afford a legal basis for the adjudication. In those cir- Exxon Corp. we held that an order granting the plaintiffs' cumstances, the order must be appealed and reversed. motion for summary judgment on one of its claims and generally denying all other relief was final, even though 92 TEX. R. APP. P. 27.2. no defendant had moved for summary judgment or re- [**51] B quested the denial of any relief. 95 Similarly, in Chessher v. Southwestern Bell Telephone Co. we held that a sum- Nothing in the order in Lehmann indicates that it is a mary judgment generally disposing of all four claims final judgment, and it did not dispose of all pending asserted by the plaintiff was final, even though the de- claims and parties. The order in Harris states that plain- fendant moved for summary judgment on only one of the tiffs take nothing as to "one of the defendants", but that claims. 96 Again in Young v. Hodde, we agreed that a language does not suggest that all of the plaintiffs' claims Mother Hubbard clause in an order granting summary were denied. As the order recites and as the record judgment for the plaintiff disposed of a defendant's demonstrates, the defendant named in the order was not counterclaim, even though the plaintiff's motion had ad- the only defendant remaining in the case. Thus, we con- dressed only his own claims and not the counterclaim. 97 clude that a final and appealable judgment was not ren- It has simply never been the law in Texas that a summary dered in either case. judgment generally disposing of all claims and parties is We are concerned that in neither case were the nevertheless interlocutory merely because rendition of a non-movants provided a copy of the court's signed order final judgment was improper. In essence, the concurring but were merely sent notice by postcard that an order had opinion's position is that a trial court has no jurisdiction been signed. The Rules of Civil Procedure do not require to grant more relief than is requested, and that if [**54] clerks to send all parties copies of all orders, only final it does so, its action is absolutely void. We do not agree orders. 93 Nevertheless, the practice of courts in some that a court's power to act, as distinct from the proper counties is to require that a party seeking an order pro- exercise of that power, is defined by a party's request for vide copies and addressed, postage-paid envelopes for all relief. other parties. The Court's Advisory Committee should consider whether the rules should require that all parties 95 644 S.W.2d 453 (Tex. 1982) (per curiam). be given copies of all orders signed in a case. 96 658 S.W.2d 563 (Tex. 1983) (per curiam). Although our opinion did not quote the trial 93 See TEX. R. CIV. P. 306a(3). court's order, an examination of the record in the case reveals that the order recited that the court [**52] IV had considered the defendant's motion for sum- mary judgment, the plaintiff's responses, and the We must respond briefly to the concurring opinion. defendant's reply, and had notified the parties that It would hold that no "type of conclusory finality lan- "it had determined to grant the defendant's mo- Page 13 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

tion for summary judgment." The decretal portion of the order stated "that plaintiff, Paul G. Argued January 26, 2000 Chessher, take nothing of and from defendant, JUSTICE BAKER filed a concurring opinion in Southwestern Bell Telephone Company. Costs of which JUSTICE ENOCH joined, except for Part IV and court are hereby taxed against plaintiff, Paul G. the discussion of Inglish and Bandera, and in which Chessher." JUSTICE HANKINSON joined, except Part IV. 97 Young v. Hodde, 682 S.W.2d 236, 236-237 (Tex. 1984) (per curiam), writ ref'd n.r.e., 672 The Court granted these petitions in Lehmann and S.W.2d 45 (Tex. App.--Houston [14th Dist.]). Harris to solve the Mafrige problems. The Court fails to do so. Thus, while I concur in the result the Court reach- [**55] The concurring opinion acknowledges that es, I cannot agree with the [**57] reasoning it uses to its position may result in more appeals being taken from reach that result. orders that look final but are really interlocutory, but it argues that appellate courts can easily deal with such In March 1993, we granted writ in Mafrige v. Ross problems by abating appeals to allow trial courts to clar- to resolve the inherent problems in determining finality ify their orders. What the concurring opinion ignores is of summary judgments for purposes of appeal. 866 that trial courts and parties will assume that orders with S.W.2d 590 (Tex. 1993). There we recognized that de- general dispositive language mean what they say, only to termining finality had "been a recurring and nagging learn months or years after an appeal should have been problem throughout the judicial history of this state." taken that no final judgment was ever rendered. JUS- Mafrige, 866 S.W.2d 590. Thus, in a major departure TICE BAKER would insist that every order granting from our prior jurisprudence, we created a new rule summary judgment specifically identify: (1) the claims providing: "If a summary judgment order appears to be each party brought; (2) the grounds upon which each final, as evidenced by the inclusion of language purport- party seeks summary judgment; (3) each ground upon ing to dispose of all claims or parties, the judgment which the trial court granted summary judgment; and (4) should be treated as final for purposes of appeal." Maf- each ground upon which the trial court denied summary rige, 866 S.W.2d 590 at 592. judgment. Despite the certainty we intended this bright-line Any order that failed to meet these requirements would rule to provide, the last seven years have proved that the Mafrige rule has created more problems than it be interlocutory, according to JUSTICE BAKER, "re- solved--confusing the lower courts, operating as a trap gardless of how clearly it states that it is a final judgment for unwary litigants, and consistently bringing about ar- disposing of all parties and issues." 98 The very real risk guably unjust and oftentimes absurd results. So, in No- of such a rule is that thousands of judgments intended to be final would remain interlocutory [**56] because vember 1999, we granted the petitions in these cases to they did not comply with all of these requirements. resolve the Mafrige problems. Inexplicably, the Court [**58] begins its opinion by chronicling the evolution [*208] This is precisely what has happened in the fed- of the rules and presumptions governing finality of or- eral system, as we have already explained, even though ders following a conventional trial on the merits from the the federal rules impose far fewer requirements on final middle of the last century to the present. 1 Then, with judgments than the concurring opinion would. very little discussion of the problems Mafrige and its 98 Post, 39 S.W.3d 191, 2001 Tex. LEXIS 6, progeny created in determining summary judgment final- ity, the Court concludes that the solution is to maintain *94 (emphasis in original). the principle of the Mafrige legal fiction--with only ***** slight modification. However, rather than solve, the Court merely perpetuates the problems Mafrige created. For the reasons we have explained, the judgments of The cases grappling to apply Mafrige illustrate that there the court of appeals in these cases are reversed, and the is but one real solution. We should return to the principle cases are remanded to that court for further proceedings. we announced in Teer v. Duddlesten--that a Mother Nathan L. Hecht Hubbard clause simply "has no place in a partial sum- mary judgment," and that a summary judgment order is Justice not an appealable, final judgment unless it actually dis- Opinion delivered: February 1, 2001 poses of all parties and issues. 664 S.W.2d 702, 703-04 (Tex. 1984). The Court states: "We do not write rules by CONCUR BY: James A. Baker opinion." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *46. The Court is right; we should not establish rules by judicial CONCUR fiat. We should not have done so in Mafrige and we Page 14 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

should not have perpetuated the [**59] Mafrige prob- its slightly-modified Mafrige rule falls far short of rem- lems with Inglish and Bandera. Any new summary edying the myriad of problems the Mafrige fiction and its judgment finality rule should be achieved by this Court's progeny created. formally promulgating a new procedure rule. The Court should recognize this, overrule Mafrige and its progeny, A. FINALITY LANGUAGE and await a recommendation by [*209] our rules ad- One source of confusion under Mafrige has been visory committee. Because the Court refuses to take this uncertainty about what language triggers its finality rule. path, I concur in the judgment only. In Mafrige, we held that a partial summary judgment is treated as final for appeal purposes when the order con- 1 These rules and presumptions are irrelevant tains a Mother Hubbard clause stating that "all relief not to the issues before the Court today. As we have expressly granted is denied" or other language "purport- repeatedly admonished--in Mafrige, in Aldridge, ing to dispose of all claims or parties." 866 S.W.2d at 590 and even in the Court's opinion today--the rules & n.1, 592. We further clarified that [**62] "other" governing finality after a conventional trial are finality language includes "a statement that the summary wholly inappropriate for determining finality of judgment is granted as to all claims asserted by the plain- summary judgments. See Mafrige, 866 S.W.2d tiff, or a statement that the plaintiff takes nothing against 590 at 592; North E. Indep. Sch. Dist. v. Al- defendant." Mafrige, 866 S.W.2d at 590 n.1.; see also dridge, 400 S.W.2d 893, 897-98 (Tex. 1966); Inglish, 945 S.W.2d at 811 (holding statement that "de- Lehmann, S.W.3d , 1998 Tex. App. LEXIS fendant is entitled to summary judgment in this case," 4657. and that plaintiff should "take nothing on account of his I. MAFRIGE AND ITS PROGENY lawsuit" rendered partial summary judgment final for purposes of appeal); Springer v. Spruiell, 866 S.W.2d Before Mafrige, courts determined summary judg- 592, 593 (Tex. 1993) (holding that summary judgment ment finality by reviewing the live pleadings, the sum- order reciting plaintiffs "have and recover nothing" pur- mary judgment [**60] motion, and the summary judg- ported to dispose of all parties and issues). ment order. Harris County v. Nash, 22 S.W.3d 46, 49-50 (Tex. App.--Houston [14th Dist.] 2000, pet. filed); Despite these examples, some lower courts have re- Kaigler v. General Elec. Ins. Mortgage Corp., 961 fused to hold orders containing this exact language final S.W.2d 273, 275 (Tex. App.--Houston [1st Dist.] 1997, for purposes of appeal. E.g., Carey v. Dimidjian, 982 no pet.). A summary judgment was deemed final and S.W.2d 556, 558 (Tex. App.--Eastland 1998, no pet.) appealable only if it expressly disposed of all parties and (holding that order containing Mother Hubbard clause issues or if it was severed from the remainder of the suit. was not final and appealable where the motion was la- Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., beled "Partial Summary Judgment" and the parties treat- 159 Tex. 550, 324 S.W.2d 200, 200 (Tex. 1959) ("[A] ed the order as interlocutory); Hinojosa v. Hinojosa, 866 summary judgment which does not dispose of all parties S.W.2d 67, 69-70 [**63] (Tex. App.--El Paso 1993, no and issues in the pending suit is interlocutory and not writ) (holding that order containing Mother Hubbard appealable unless a severance of that phase of the case is clause did not render judgment final because it did not ordered by the trial court."). dispose of counterclaim). Other courts have struggled with what "other" language purports to render a judg- With Mafrige, this Court attempted to simplify this ment final--often reaching opposite conclusions about process by holding that the "magic language" of a Moth- identical clauses. Compare [*210] Postive Feed, Inc. er Hubbard or similar finality clause conclusively trans- v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.--Houston forms an interlocutory summary judgment into a final, [1st Dist.] 1999, no pet.) (holding that order granting appealable order. Mafrige, 866 S.W.2d at 592. We have defendant's summary judgment "in all things" purported twice revisited Mafrige to clarify its scope. See Inglish v. to be final), with St. Paul Ins. Co. v. Mefford, 1998 Tex. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997) App. LEXIS 7388, No. 05-96-01581- CV (Tex. (holding [**61] that the Mafrige rule applies even when App.--Dallas Nov. 30, 1998, no pet.) (not designated for neither party appeals the erroneous summary judgment); publication), 1998 WL 821537, at *2 2 (holding that or- Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, der granting defendant's summary judgment "in all 337 (Tex. 1997) (explaining that when the Mafrige rule things" did not purport to be final). renders a partial summary judgment final for purposes of appeal, the appellate court should reverse and remand 2 The unpublished opinions cited in Part I are only the erroneously disposed claims). Unfortunately, cited only as examples, not as precedent. See Mafrige did little towards alleviating the lower courts' TEX. R. APP. P. 47.7. confusion--and Inglish and Bandera only compounded it. The Court's opinion suffers the same problem. Namely, Page 15 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

While the Court recognizes that the "routine inclu- 3 This issue also arises when a trial court ex- sion of [a Mother Hubbard clause] in [**64] otherwise pressly mentions and disposes of a party even plainly interlocutory orders and its ambiguity in many though that party was not mentioned in the mo- contexts have rendered it inapt for determining finality," tion for summary judgment. Here, the lower 39 S.W.3d 191, 2001 Tex. LEXIS 6, *2, it ignores the courts have been more willing to apply Mafrige obvious problems courts have faced interpreting other and hold that the order purports to dispose of all language "purporting to dispose of all claims or parties." parties and issues. See, e.g., Mikulich v. Perez, Mafrige, 866 S.W.2d at 592. In fact, despite the Court's 915 S.W.2d 88, 91-92 (Tex. App.--San Antonio extensive analysis and discussion, its holding represents 1996, no writ). but a minor departure from Mafrige. In contrast, other courts have interpreted Mafrige Its modified rule has two parts. The first represents more narrowly, reasoning that an "order that explicitly no change in Texas law. It simply reiterates that a sum- grants a summary judgment in favor of less than all the mary judgment order that actually disposes of all parties defendants does not clearly evidence an intent to dispose and issues is final for purposes of appeal. 39 S.W.3d of all claims [**67] against all defendants, especially 191, 2001 Tex. LEXIS 6, *10. The second part provides those against whom [*211] summary judgment was that a Mother Hubbard clause is no longer enough to not sought, regardless of the inclusion of a Mother Hub- invoke the fiction that an otherwise interlocutory order is bard clause." Lowe v. Teator, 1 S.W.3d 819, 823-24 (Tex. treated as final for purposes of appeal. Instead, to invoke App.--Dallas 1999, pet. filed); see also Midkiff v. Han- the Mafrige fiction, an interlocutory order must now cock E. Tex. Sanitation, Inc., 996 S.W.2d 414, 416 (Tex. "clearly and unequivocally state[] that it finally disposes App.--Beaumont 1999, no pet.); Vanderwiele v. Llano of all claims and all parties." 39 S.W.3d 191, 2001 Tex. Trucks, Inc., 885 S.W.2d 843, 845 (Tex. App.--Austin LEXIS 6, *47. The Court further explains that the state- 1994, no writ). ments "plaintiff take nothing by his claims in the case" Here the Court summarily dismisses this omitted and "this judgment finally disposes of all parties [**65] parties problem: and all claims and is appealable" clearly and unequivo- cally state that an order is final. 39 S.W.3d 191, 2001 Nothing in the order in Lehmann indicates that it is a Tex. LEXIS 6, *50. In essence, the Court's rule does no final judgment, and it did not dispose of all pending more than replace one set of magic language with anoth- claims and parties. The order in Harris states that plain- er--while ignoring the reality that courts will likely face tiff take nothing as to "one of the defendants", but that the same challenges deciding what language "clearly and language does not suggest that all of the plaintiffs' claims unequivocally states" that an order is final, 39 S.W.3d were denied. As the order recites and as the record 191, 2001 Tex. LEXIS 6, *47, as they did deciding what demonstrates, the defendant named in the order was not other language clearly "purports to dispose of all claims the only defendant remaining in the case. Thus, we con- or parties" under Mafrige. 866 S.W.2d at 592. clude that a final appealable judgment was not rendered in either case. B. OMITTED PARTIES 39 S.W.3d 191, 2001 Tex. LEXIS 6, *51. Despite the Applying Mafrige to omitted parties, like those in presence of a Mother Hubbard clause, the trial court and both Lehmann and Harris, has also troubled the lower parties in Lehmann continued treating the [**68] order courts. Specifically, they have struggled with deciding as interlocutory--even in the face of this Court's admon- when finality language operates to render a summary ishment that a Mother Hubbard clause indicates finality. 4 judgment final against omitted parties. This issue often 988 S.W.2d at 416. The Court now holds that the order surfaces when both the summary judgment motion and did not purport to be final based solely on its new rule the resulting order omit any specific reference to one or discounting the dispositive effect of Mother Hubbard more parties. 3 In this situation, several courts have held clauses. that Mafrige applies, reasoning that issues and parties are co-extensive and thus if "an order disposes of all issues 4 In fact, the district clerk sent all the parties in a case, then it necessarily disposes of all parties to a (including those omitted from the summary case, [**66] and vice versa." Kaigler, 961 S.W.2d at judgment order) a postcard indicating that an 276; see also Lehmann v. Har-Con Corp., 988 S.W.2d "Order for Interlocutory Summary Judgment" had 415, 416-17 (Tex. App.--Houston [14th Dist.] 1999, pet. been signed. Lehmann, 988 S.W.2d at 416. granted); Harper v. Newton, 910 S.W.2d 9, 12 n.1 (Tex. App.--Waco), rev'd sub nom. on other grounds, Dallas However, the Court's resolution merely sidesteps the County v. Harper, 913 S.W.2d 207 (Tex. 1995). real problem. What happens in the next case when, on facts identical to Lehmann, a trial court signs an interloc- Page 16 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

utory summary judgment with the Court's new magic an order adjudicating claims like the latter dispose of the language rather than a Mother Hubbard clause? We are plaintiff's claims. An order that disposes of claims by right back where we started. Substituting one magic only one of multiple plaintiffs or against one of multiple phrase for another leads nowhere. defendants does not adjudicate claims by or against other parties. An order does not dispose of all claims and all The reality is simply that omitted parties oftentimes parties merely because it is entitled "final," or because do not believe that a summary judgment order that they the word "final" appears elsewhere in the order, or even have [**69] not seen, that does not mention them, and because it awards costs. Nor does an order completely that results from a hearing in which they did not partici- dispose of a case merely because it states that it is ap- pate will operate to dispose of them or their claims. But, pealable, since even interlocutory orders may sometimes under the Court's standard, if these parties do not perfect be appealable. Rather, there must be some other clear a timely appeal from the erroneous judgment, their right indication that the trial court intended the order to com- to appeal is forever lost. This result elevates form over pletely dispose of the entire case. substance and hinders parties' rights to have the merits of their claims considered. See, e.g., Rodriguez v. NBC 39 S.W.3d 191, 2001 Tex. LEXIS 6, *47-48. Bank, 5 S.W.3d 756, 763 n.4 (Tex. App.--San Antonio 1999, no pet.) (recognizing this Court's "express goal of Under its modified finality rule, the lower courts' reaching the merits of a cause of action, instead of dis- disagreement in this area will continue because too many missing actions on procedural technicalities"). questions are left unanswered. For example, should a "final" summary judgment order stating that defendant is C. OMITTED CROSS-CLAIMS AND COUNTER- granted summary judgment "in all things" dispose of a CLAIMS cross-claim by another defendant as well as the claim by the plaintiff that brought the original claim? In this The courts of appeals have also treated omitted [**72] situation, there is no doubt that the order is un- cross-claims and counterclaims inconsistently--despite ambiguous. However, it is likewise clear, but not from our holding in Bandera. In Bandera, the trial court the order, that the third party's claim against the defend- signed an order with a Mother Hubbard clause that did ant was never considered. Should an order granting not mention the defendant's counterclaims. 946 S.W.2d at summary judgment for a plaintiff that recites it is a final 337. This Court explained that "because the order con- and appealable order be final for counterclaims not men- tained a Mother Hubbard clause denying all other relief, tioned in the motion or order? The order unequivocally it also purported to dispose of [the defendant's] counter- states that it is a final, appealable order. Nonetheless claims." Bandera, 946 S.W.2d at 337. [**70] But sev- there is a counterclaim that has not been considered. The eral courts have refused to apply Mafrige in this situa- Court states that a summary judgment granted for a tion, maintaining that a summary judgment that does not plaintiff "does not adjudicate a counterclaim" and then mention counterclaims or cross-claims cannot purport to goes on to say that to make the order final there must be be final--regardless of whether it contains finality lan- "some other clear indication that the trial court intended guage. E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33 the order to completely dispose of the entire case." 39 (Tex. App.--Houston [14th Dist.] 2000, pet. denied); S.W.3d 191, 2001 Tex. LEXIS 6, *47-48. In the example Hervey v. Flores, 975 S.W.2d 21, 25 (Tex. App.--El Paso above, does the additional statement that "this is a final, 1998, pet. denied); cf. Coleman Cattle Co., Inc. v. Car- appealable order" provide this "other clear indication"? pentier, 10 S.W.3d 430, 433 n.2 (Tex. App.--Beaumont These very issues are repeatedly raised in the courts of 2000, no pet.). Other courts have followed Bandera's appeals, and the Court's modified rule simply does not mandate, holding that finality language--such as "plain- resolve them. tiff takes nothing"--renders [*212] a judgment final for appeal purposes, despite omission of any reference to D. TRIAL COURTS' AND PARTIES' INTENT defendant's counterclaims. In re Monroe, 2000 Tex. App. LEXIS 2159, No. 05-99-01758- CV (Tex. App.--Dallas Differing philosophies about the effect the trial Mar. 31, 2000, orig. proceeding) (not designated for pub- courts' and parties' intent should have on how [**73] lication), 2000 WL 378519, at *1-2; see also Kaigler, Mafrige applies has created the most confusion and in- 961 S.W.2d at 275-76. consistency. The courts of appeals have taken three ap- proaches. Some courts apply a bright-line test, holding The Court's rule does not provide a satisfactory that a Mother Hubbard clause or other finality language remedy for this situation either. The Court states: always renders an order final for appeal purposes, re- An order that adjudicates only the plaintiff's claims gardless of any evidence of contrary intent. E.g., Preston against the defendant does [**71] not adjudicate a v. American Eagle Ins. Co., 948 S.W.2d 18, 20-21 & n.1 counterclaim, cross-claim, or third party claim, nor does (Tex. App.--Dallas 1997, no writ) (holding that summary Page 17 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

judgment purported to be final despite fact it was entitled to determine if an order actually disposes of all pending "partial summary judgment"); cf. In re Cobos, 994 parties and issues. S.W.2d 313, 315 (Tex. App.--Corpus Christi 1999, orig. Because of the lower courts' confusion and disa- proceeding) ("As Mafrige and Inglish make clear, the greement about the role of intent in determining finality, intent of the trial court is not the controlling considera- I am convinced that the Court has not provided a worka- tion in determining whether a judgment is final."). Other ble rule that clearly [**76] defines that role as it applies courts modify this approach, looking only within the four to determining summary judgment finality. corners of the order and giving effect to any evidence of contrary intent found there. E.g., Rodriguez, 5 S.W.3d at E. APPLYING MAFRIGE TO NON-SUMMARY 763-64 (Tex. App.--San Antonio 1999, no pet.) ("Look- JUDGMENT ORDERS ing within the four corners of the summary judgment Finally, the question of whether Mafrige applies order, the plain language of the [*213] Mother Hub- outside the summary judgment context has confused the bard clause did not, and could not, [**74] purport to lower courts. Courts of appeals have applied Mafrige to a grant or deny any more relief than the relief which [the plea to the jurisdiction, Webb v. HCM Mgmt. Corp., defendant] sought."); Midkiff, 996 S.W.2d at 416 (look- ing to order "as a whole" to conclude that summary 1998 Tex. App. LEXIS 372, No. 07-96-0369- CV (Tex. judgment order containing Mother Hubbard clause did App.--Amarillo Jan. 12, 1998, pet. denied) (not desig- nated for publication) 1998 WL 16033, at *1; an agreed not purport to be final). judgment, In re Cobos, 994 S.W.2d at 315-16; a directed Finally, despite our holding in Inglish that the trial verdict, e.g., Polley v. Odom, 957 S.W.2d 932, 943 (Tex. court's intent is irrelevant in this context, other courts App.--Waco 1997, judgm't vacated); and a severance still refuse to apply Mafrige if there is evidence of con- order, Harris County Flood Control Dist. v. Adam, 988 trary intent anywhere in the record. This usually occurs S.W.2d 423, 427 (Tex. App.--Houston [1st Dist.] 1999, when the parties and court treat an order as interlocutory pet. filed). In contrast, at least one court has declined to by continuing with the litigation rather than appealing apply Mafrige to a dismissal for want of jurisdiction. In the erroneous order. E.g., Lowe, 1 S.W.3d at 823-24 re Tejas, 1998 Tex. App. LEXIS 4405, Nos. (holding that summary judgment could not be final 01-98-00688-CV, 01-98-00689-CV, 01-98-00690-CV where the record reflected that there were parties who (Tex. App.--Houston [1st Dist.] July 13, 1998, orig. pro- did not participate in the summary judgment proceed- ceeding) (not designated for publication), 1998 WL ing); Carey, 982 S.W.2d at 558 (relying, in part, on 394562, at *1 n.1. And another has expressly refused to court's and parties' treatment of order containing Mother [**77] extend Mafrige to any order that is not a sum- Hubbard clause as interlocutory to conclude judgment mary judgment. Biltmore Swim & Racquet Club Recrea- was not final). tional Ass'n v. McAbee, 1998 Tex. App. LEXIS 4812, No. 05-98-00252- CV (Tex. App.--Dallas Aug. 10, 1998, no The Court's solution to this problem is as confusing pet.) (not designated for publication), 1998 WL 459819, as the rule it seeks to supplant. It appears to reject the at *1. bright-line approach Mafrige espouses [**75] and in- stead adopt a rule combining the second and third ap- In Aldridge, this Court held that a presumption of proaches. First, the Court notes that an order is final for finality exists when an order is signed following a tradi- appeal purposes if it "unequivocally states that it finally tional trial on the [*214] merits. Aldridge, 400 disposes of all parties and all claims and is appealable." S.W.2d at 897-98. But we specifically noted that such a 39 S.W.3d 191, 2001 Tex. LEXIS 6, *47. It also explains finality presumption would not be appropriate in other that "if the language of the order is clear and unequivo- contexts. Aldridge, 400 S.W.2d at 897. Then in Mafrige cal, it must be given effect despite any other indications we carved out an exception to what we had said in Al- that one or more parties did not intend for the judgment dridge by holding that an irrebuttable finality presump- to be final." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *50. tion applies to summary judgments containing a Mother From these statements, the Court's new rule walks and Hubbard or similar finality clause. Mafrige, 866 S.W.2d talks a lot like a bright-line Mafrige rule, with magic at 592. Here again, just as we had limited Aldridge to language establishing finality. conventional trials on the merits, we expressly limited Mafrige to summary judgments. Mafrige, 866 S.W.2d at However, the Court also states that "to determine 591 ("The issue is whether . . . a summary judgment, whether an order disposes of all pending claims and par- which purports to be final by the inclusion of Mother ties, it may of course be necessary for the appellate court Hubbard language or its equivalent, should be treated to look to the record in the case." 39 S.W.3d 191, 2001 [**78] as final for purposes of appeal."). Unfortunately, Tex. LEXIS 6, *49. This sounds more like a pre-Mafrige several courts of appeals have erroneously applied Maf- rule, where a court must look to the record and the order Page 18 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

rige in other contexts, causing confusion over how to ("Mafrige is not as clear to litigants as the supreme court determine finality of various other types of orders. believes it is . . . . In short, Mafrige has created several problems: 1) it is catching the parties by surprise . . .;2) it Mafrige and its progeny are limited to summary exalts form over substance; and 3) in more than a few judgments--with good reason. No good can come of in- situations, it ignores common sense."); Carlson & Dunn, terjecting additional uncertainty into (1) conventional Navigating [*215] Procedural Minefields: Nuances in trials on the merits, to which the majority acknowledges Determining Finality of Judgments, Plenary Power, and the Aldridge presumption has "proved a fairly workable" Appealability, 41 S. TEX. L. REV. 953, 971 (2000) rule, 39 S.W.3d 191, 2001 Tex. LEXIS 6, *23, or (2) nu- ("Despite the appeal of the certainty provided by this merous other types of orders, when even the majority bright-line rule, the reality is that still, after seven years, acknowledges that "the ordinary expectation" supporting it continues to operate as a trap for unwary litigants, a finality presumption "simply does not exist when some bringing about arguably unjust and oftentimes draconian form of judgment is rendered without such a trial" be- results."); Swanda, Summary [**81] Judgment, cause "it is quite possible, perhaps even probable these Mother Hubbard Clauses, and Mafrige v. Ross, AP- days . . . that any judgment rendered prior to a full-blown PELLATE ADVOCATE, May 1997, at 3 (complaining trial is intended to dispose of only part of the case." 39 that the questions Mafrige raises "are just as elusive" as S.W.3d 191, 2001 Tex. LEXIS 6, *27. the questions it sought to resolve). However, the Court's opinion here implicates finali- Strong policies support our practice of adhering to ty of all judgments. This expansion into issues not before settled rules of law "unless there exists the strongest rea- the Court today can only cause mischief in areas already sons for change." Benavides v. Garcia, 290 S.W. 739, plagued by confusion. If the Court persists in adhering to 740-41 (Tex. Comm'n App. 1927, judgm't adopted). But Mafrige's principles, it [**79] should at least limit its we have also recognized the "doctrine of stare decisis holding, as we did in Mafrige, to summary judgements. does not stand as an insurmountable bar to overruling precedent." Gutierrez v. Collins, 583 S.W.2d 312, 317 II. POLICY CONSIDERATIONS (Tex. 1979). "Generally, we adhere to our precedents for Not surprisingly, the post-Mafrige era has given rise reasons of efficiency, fairness, and legitimacy." Weiner to considerable analysis by courts and commentators of v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995). However, both the competing policies Mafrige implicates and sug- when adherence to a judicially- created rule of law no gestions for reform. A few have applauded the longer furthers these interests, and "the general interest bright-line rule. See Kaigler, 961 S.W.2d at 275-76 (rec- will suffer less by such departure, than from a strict ad- ognizing that the rule provides harsh results, but empha- herence," we should not hesitate to depart from a prior sizing that uniform enforcement "encourages attentive- holding. Benavides, 290 S.W. at 740. The lower courts' ness to correct judgments"); Boyce, Mafrige v. Ross and application of Mafrige over the last seven years illus- the Pitfalls of Presumptions, APPELLATE ADVO- trates undeniably that this is just such [**82] a case. CATE, Nov. 1997, at 7 (opining that Mafrige "resolved We intended Mafrige, Inglish, and Bandera to pro- the confusion created by prior contradictory language vide certainty to litigants. Instead, they have bred chaos. and flatly inconsistent holdings"). Most disturbing is that the casebooks are now replete with examples of dismissed cases where the parties and However, praises have been few and far between. Criti- courts clearly intended an order containing finality lan- cism has been the rule and the comments call for this guage to be interlocutory. 5 E.g., Inglish, 945 S.W.2d at Court to reconsider our decision: 811; In re Cobos, 994 S.W.2d at 315-16; Pena v. Valley What began as a benign growth allowing review of Sandia, Ltd., 964 S.W.2d 297, 298-99 (Tex. unripe claims on appeal, in Mafrige, became a malignant App.--Corpus Christi 1998, no pet.); Kaigler, 961 S.W.2d cancer cutting off causes of action before trial, in Inglish. at 275-76. Even the Court acknowledges: If it were up to me, I would lock Mother Hubbard in the The ordinary expectation that supports the presump- cupboard and return to the rule before Aldridge [**80] tion that a judgment rendered after a conventional trial that a judgment is final and appealable only if it express- on the merits will comprehend all claims simply does not ly disposes of all parties and all claims in the case. That exist when some form of judgment is rendered without appellants can even cite authority for the absurd result such a trial. On the contrary, it is quite possible, perhaps they seek, illustrates how wrong a turn the law has taken even probable these days in cases involving multiple in this area--and how strong the need to right it. parties and claims, that any judgment rendered prior to a Harris County Flood Control Dist., 988 S.W.2d at full-blown trial is intended to dispose of only part of the 427-28 (Taft, J., concurring in denial of rehearing en case. Accordingly, the finality of the judgment must be banc); see also, e.g., Lehmann, 988 S.W.2d at 418 determined without the benefit of any presumption. Page 19 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

pounded the problem by confirming that Mafrige applies 39 S.W.3d 191, 2001 Tex. LEXIS 6, *26-27. Because even when the parties continue litigating rather than ap- [**83] of this reality, it is difficult to understand why pealing a partial summary judgment made final under the Court persists in adhering to Mafrige's principles. Mafrige. Inglish, 945 S.W.2d at 811. We completed the trilogy in Bandera, holding that when a party appeals a 5 Oftentimes in these cases litigation continues summary judgment granting more relief than requested, to move forward. Any error in including magic the court of appeals should address the merits of the ap- finality language in a summary judgment is not peal, remanding only the part of the judgment that ex- discovered until it is too late; the appellate time- ceeds the relief requested in the summary judgment mo- table has expired and the trial court has lost ple- tion. 946 S.W.2d at 337. Undeniably, these rules were nary power to act. The litigants have forever lost designed to simplify summary judgment finality. But, in their right to complain of the judgment. application, these cases only demonstrate that we should have adhered to our own admonishments that this Court The author of the Court's opinion recently opined: simply should not make rules by opinion. E.g., Alvarado "Appellate procedure should not be tricky. It should be v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (ex- simple, it should be certain, it should make sense, and it plaining that we [**86] should not revise rules by should facilitate consideration of the parties' argument on opinion); see also Verburgt v. Dorner, 959 S.W.2d 615, the merits. . . ." Lane Bank Equip. Co. v. Smith S. Equip., 619 (Tex. 1997) (Baker, J., dissenting) (noting that this Inc., 10 S.W.3d 308, 314 (Tex. 2000) (Hecht, J., concur- Court's jurisprudence forbids rule amendments by judi- ring). This Court has repeatedly refused to adopt posi- cial fiat). tions which elevate form over substance. See, e.g., Phil- lips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999); Nueces Thus, we should overrule Mafrige, Inglish, and Canyon Consol. Indep. Sch. Dist. v. Central Educ. Bandera--to the extent they created new rules by judicial Agency, 917 S.W.2d 773, 775-76 (Tex. 1996). [**84] fiat--and instead tackle the problems of summary judg- The Court here even recognizes that "simplicity and cer- ment finality through our rulemaking process. Accord- tainty in appellate procedure are nowhere more important ingly, we should return to our prior position that a Moth- than in determining the time for perfecting appeal." 39 er Hubbard clause (or other magic language) has no S.W.3d 191, 2001 Tex. LEXIS 6, *47. Unfortunately place in any summary judgment order--final or par- though, the Court declines to embrace this opportunity tial--and that a trial court may not sua sponte grant more [*216] to effectuate meaningful change and provide relief than the parties request simply by adding conclu- certainty for courts and litigants. Instead the Court leaves sory finality language to a summary judgment order. them as it found them, grappling with determining Further, a summary judgment should be entitled to no whether summary judgment orders are fictitiously made presumption at all about whether it is final. final. Returning to the law as it was pre-Mafrige requires determining the state of the law before Mafrige. Mafrige III. THE SOLUTION actually held two things: (1) that "'Mother Hubbard' lan- The Court notes: "We do not write rules by opinion. guage or its equivalent in an order granting summary We must decide what Texas law requires for finality, judgment makes an otherwise partial summary judgment given the present rules." 39 S.W.3d 191, 2001 Tex. LEX- final for appeal purposes; " and (2) that if [**87] a IS 6, *46-47. Yet, the Mafrige finality rule this Court summary judgment "grants more relief than requested, it created represented such a major departure from prior should be reversed and remanded, but not dismissed." Texas law. In fact, but for the judicially-created Mafrige 866 S.W.2d 590, 592. rule, no one would dispute that "what Texas law requires Before Mafrige, this first holding was not the law. In for finality" of summary judgments is an order actually Teer v. Duddlesten we held that: disposing of all parties and issues. There is no presumption in partial summary judg- Rather than simply amend the Mafrige finality rule ments that the judgment was intended to make an adju- and perpetuate the problems the unworkable system dication about all parties and issues. The Mother Hub- Mafrige and its progeny created, the Court should focus bard clause that "all relief not expressly granted is de- on shaping a real solution--one providing the desired nied" has no place in a partial summary judgment hear- certainty and protecting [**85] parties' right to appel- ing. The concepts of a partial summary judgment on the late review. This requires wiping the slate clean. Mafrige one hand, and a judgment [*217] that is presumed to created enough problems with its fictional finality and its determine all issues and facts on the other, are incon- holding that trial courts can use magic language to create sistent. final summary judgments by granting relief not request- ed. 866 S.W.2d 590 at 591-92. In Inglish we com- Page 20 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

664 S.W.2d at 704. In Mafrige we recognized this earlier relief than requested, without any sua sponte severance statement in Teer, but rejected it and held that finality of some issues while others are remanded. language could render a partial summary judgment final Wiping the slate clean by overruling the rules creat- for purposes of appeal. 866 S.W.2d 590 at 592. ed in Mafrige, Inglish, and Bandera while we study the Mafrige's second holding--that a summary judgment best method of tackling summary judgment finality granting more relief than requested should be reversed through our formal rule- promulgation process is the and remanded, but not dismissed--does not appear to be better solution for several reasons. First, this approach an entirely new rule. In both Teer and Chessher, another strikes a more reasonable balance between the competing pre-Mafrige case, we reversed and remanded (rather policies of promoting certainty and preserving parties' [**88] than dismissed) summary judgment orders after rights to appellate review. And, under this approach, the determining that they were interlocutory because they trial court and the parties drafting summary judgment granted more relief than requested. See Teer, 664 S.W.2d orders would have the burden, and the incentive, to en- 702 at 705; Chessher v. Southwestern Bell Tel. Co., 658 sure that the pleadings, summary judgment motions, and S.W.2d 563, 564 (Tex. 1983). But see Ross v. Arkwright the summary judgment orders match. If a premature ap- Mut. Ins. Co., 834 S.W.2d 385, 393 (Tex. App.--Houston peal is taken, the court of appeals need only compare the [14th Dist.] 1992) (opining that these cases are "in direct pleadings, motions, and order. If the order does not dis- contravention of TEX. R. CIV. P. 166a(c)" and discuss- pose of parties or issues raised in the pleadings, then it is ing disagreement in the courts over whether summary interlocutory and the court must dismiss the appeal. 7 If judgment orders granting more relief than requested were the order explicitly [*218] disposes of issues and par- interlocutory or appealable, but erroneous, judgments), ties not raised in the motion, [**91] it is erroneous and rev'd sub. nom. Mafrige, 866 S.W.2d at 590. Thus, the court must reverse the entire order. while the courts were not entirely in agreement, it ap- pears we had already established the rule that a summary 7 Of course, this procedure would not apply if judgment order granting more relief than requested is not the order fell within the category of cases for interlocutory--it is simply erroneous. For this reason, I which there can be more than one final judgment, agree with the Court that if an order actually does dis- or the category of orders for which a court of ap- pose of each claim and every party, it is an appealable peals has been granted statutory authority to re- judgment, even if it grants more relief than requested. view interlocutory orders. This is consistent with the long-standing rule that if an Most importantly, this approach alters the conse- order actually disposes of [**89] all parties and issues, quences of poorly-drafted orders. Specifically, the con- it is final for appeal purposes. E.g., Houston Health sequence flowing from a poorly drafted order becomes Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, the risk of a premature appeal rather than an untimely 693 (Tex. 1986). However, consistent with my view that one. This eliminates the greatest risk Mafrige creat- we should overrule Mafrige and its progeny and recog- ed--that an interlocutory order, contrary to the trial nize no presumption for or against finality, I do not be- court's and (at least one party's) intent, will be fictitiously lieve any type of conclusory finality language can ever made final, starting the appellate and plenary power be read to grant more relief than requested by the parties. 6 timetables even while the litigation continues. No one would argue that conducting a trial after the trial court's 6 It would not be enough for a court to gener- plenary power has expired is not a waste of judicial re- ally state "plaintiff takes nothing," "defendant is sources. Moreover, because overruling Bandera elimi- granted summary judgment in all things," or "this nates the benefits of [**92] a premature appeal, taking is a final appealable judgment." Conclusory final- such an appeal would not be a cost-efficient mistake for ity clauses (i.e. "magic language") do not indicate litigants to make, increasing the incentive to ensure or- that a trial court actually granted relief not re- ders are more clearly drafted. If a premature appeal is quested for or against parties or issues are not nonetheless taken, it would not create an onerous burden mentioned in the order. for the appellate court. The opposing party need only file a brief pointing out that the pleadings, motion, and order We should determine summary judgment finality by do not match, leading to automatic remand or dismissal. comparing the live pleadings and the summary judgment order. A summary judgment order should only be final if No one disputes that rules governing summary it matches the contents of the pleadings. [**90] And, judgment finality could be helpful to the bench and bar as was the law before Bandera, a court of appeals should and facilitate judicial efficiency. But history, as well as summarily reverse any summary judgment granting more our own precedent, has shown that judicial opinions are not the place to achieve this. Any attempt to adhere to the Mafrige principle or retain parts of it while rejecting Page 21 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

others can only lead to more problems. Instead, this order that is silent about the party or its claims or that Court should overrule Mafrige and its progeny and start sua sponte grants relief no party requested without men- anew. As the Court even notes, our rules advisory com- tioning the parties or claims--regardless of how clearly it mittee is currently studying summary judgment finality. states that it is a final judgment disposing [**95] of all 39 S.W.3d 191, 2001 Tex. LEXIS 6, *28. Retaining parts parties and issues. of Mafrige, Inglish, Bandera as modified by the Court's Most significantly, in practice this would lead to less-than-clear opinion today--only to follow with prom- better drafting and fewer erroneous appeals. Specifically, ulgation of a concurrent finality rule--will only lead if required to expressly list each ground upon which [**93] to more confusion. summary judgment is requested, trial courts are not like- I agree that the cases here should be reversed. But, ly to add grounds to their order that the summary judg- because the Court refuses to fix the problems its judicial ment motion did not raise. rulemaking in Mafrige caused and allow our rulemaking Second, I would suggest the committee consider a process to work, I cannot join the Court's opinion. rule requiring that the prevailing party, who is charged with drafting the court's order, serve copies on all other IV. RECOMMENDATION parties at least ten days before the trial court is to sign I recognize that the Supreme Court of Texas Advi- and enter the order. Consistent with this suggestion, I sory Committee on Rules of Civil Procedure has been agree with the Court's suggestion that the clerk send studying the problem of summary judgment finality. It copies of all the actual signed orders--rather than just a has proposed an amendment to Rule 166a of the Texas postcard indicating that the court has signed an order. Rules of Civil Procedure: The majority's author criticizes my first recommen- (j) Statement of Grounds. An order granting sum- dation, asserting that there is a "very real risk" that re- mary judgment must state the ground or grounds on quiring judges to be explicit in their summary judgment which the motion was granted. No judgment may be af- orders would result in "thousands of judgments intended firmed on other grounds stated in the motion unless they to be final . . . remaining interlocutory." 39 S.W.3d 191, are asserted by appellee in the appellate court as alterna- 2001 Tex. LEXIS 6, *55. He contends that "this is pre- tive grounds for affirmance. cisely what has happened in the federal system even though the federal rules impose far fewer [**96] re- I do not believe this proposed amendment goes far quirements on final judgments than the dissent would." enough. 39 S.W.3d 191, 2001 Tex. LEXIS 6, *56. Federal Rule 58, First I would suggest to the committee that they to which he refers, requires that all final judgments "be consider requiring each summary judgment order specif- set forth on a separate document" and be entered by the ically identify: (1) the claims each party brings; (2) the clerk on the docket. FED. R. CIV. P. 58. grounds upon which each party seeks summary judg- This criticism only serves to amplify the real dan- ment; (3) each ground upon which the trial court granted gers of straying outside the summary judgment context summary judgment; and (4) each ground upon which the in these cases. How finality of different types of judg- trial court [**94] denied summary judgment. ments is determined must be governed by the nature of This solution is intuitive. In the vast majority of the judgment. Houston Health Clubs, Inc., 722 S.W.2d cases, this formality, rather than including magic lan- at 693 ("In determining whether a judgment is final, dif- guage, would provide notice to parties about what has ferent presumptions apply depending on whether the actually happened. In practice, this procedure alleviates judgment follows a conventional trial on the merits or many problems Mafrige's finality rule has caused. results from default or a motion for summary judg- ment."). Cognizant of this, my recommendation, unlike Under this approach, a summary judgment is not fi- Federal Rule 58, is limited to summary judgment finality. nal unless the order specifically identifies each claim for relief, the grounds upon which each party seeks summary The live pleadings define the issues in a case. The judgment, and the court's disposition [*219] of each issues tried do not always mirror these pleadings. See claim and party. The appellate court's jurisdiction is de- Vance v. Wilson, 382 S.W.2d 107, 108 (Tex. 1964). termined only by looking at whether the trial court ren- Nonetheless, we have repeatedly recognized that a pre- dered an order expressly disposing of all remaining par- sumption should exist that all issues presented by the ties and issues. If the trial court errs by omitting certain pleadings are disposed of in a conventional trial on claims or parties from the order, as happened in Leh- [**97] the merits. See Aldridge, 400 S.W.2d at 897-98; mann and Harris, it is not a final order for purposes of Vance, 382 S.W.2d at 108. This presumption can be re- appeal. Under this approach a party never loses its right butted by a contrary showing in the record. See Richey v. to appeal based upon the finality of a summary judgment Bolerjack, 589 S.W.2d 957, 959 (Tex. 1979). But absent Page 22 39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 44 Tex. Sup. J. 364

such a rebuttal, this presumption prevents judgments disposes of all parties and all issues raised in the plead- from languishing after trial based solely on variations in ings. In Mafrige we created a legal fiction to simplify the the pleadings and judgment. This presumption has saved process of determining finality. But Mafrige created us from the types of problems the federal system has more problems than it solved. It is beyond me why the experienced. Court insists on struggling through pages and pages of history about presumptions, magic language, and Mother However, we sensibly limited this presumption to Hubbard clauses instead of squarely considering the judgments "not intrinsically interlocutory in character." problems Mafrige caused and providing a solution. Its Aldridge, 400 S.W.2d at 897. We have also explained willingness to cling to this legal fiction, while refusing to that summary judgments are intrinsically interlocutory recognize that our rulemaking in Mafrige and its progeny and thus they should not be presumed final. Houston was not the correct solution, will only create more prob- Health Clubs, Inc., 722 S.W.2d at 693. Thus, there is lems. nothing illogical about requiring that finality language be explicit. And I respectfully disagree that my recommen- I concur in the judgment in these cases. But, because dation, limited to summary judgments, will cause such the Court declines to overrule Mafrige, Inglish, and [*220] major havoc in the court system. Further, I be- Bandera, and await our promulgation of a rule governing lieve the additional formality in this context is worth the summary judgment finality, I do not concur in its rea- certainty and protections such a rule provides. soning. V. CONCLUSION James A. Baker, Justice [**98] In Texas, the test for determining summary February 1, 2001 judgment finality has always been whether the judgment Page 1

Positive As of: Mar 30, 2015

LEJ DEVELOPMENT CORPORATION AND L.E. JOWELL, JR., APPELLANTS v. SOUTHWEST BANK, APPELLEE

NO. 02-12-00088-CV

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

407 S.W.3d 863; 2013 Tex. App. LEXIS 9193

July 25, 2013, Delivered

PRIOR HISTORY: [**1] Southwest Bank filed suit against Appellants on FROM THE 96TH DISTRICT COURT OF TAR- August 10, 2011, alleging that LEJ had defaulted on a RANT COUNTY. promissory note and that Jowell Jr. was liable on the note as guarantor. Citations were prepared for service, one directed to L.E. Jowell, Jr. and the other to LEJ Devel- COUNSEL: FOR APPELLANT: THOMAS M. opment Corporation by and through L.E. Jowell, Jr. The MICHEL, ROBLEY E. SICARD, GRIFFITH, JAY & officer's returns reflect that both citations were personal- MICHEL, LLP, FORT WORTH, TX. ly served on August 18 on "L.E. Jowell," not on "L.E. Jowell, Jr." The returns were filed with the court on Au- FOR APPELLEE: KYLE T. GRAY, POPE, HARD- gust 22. WICKE, CHRISTIE, SCHELL, KELLY & RAY, L.L.P., FORT WORTH, TX. On September 19, Southwest Bank filed a motion to amend the returns and a motion for default judgment. JUDGES: PANEL: GARDNER, MEIER, and GABRI- Two amended officer's returns, each signed by the con- EL, JJ. stable, were attached as exhibits [**2] to the motion to amend. The amended returns stated that L.E. Jowell, Jr. OPINION BY: ANNE GARDNER was the person on whom the constable had effectuated service of the citations to LEJ and Jowell Jr. on August OPINION 18.

[*865] I. Introduction On September 22, the trial court ordered that each of the original returns was "[t]hereby amended to reflect By this restricted appeal, Appellants LEJ Develop- that Defendant L.E. Jowell, Jr. was served" and that LEJ ment Corporation (LEJ) and L.E. Jowell, Jr. (Jowell Jr.) "was served by and through its registered agent, L.E. seek reversal of the trial court's September 22, 2011 de- Jowell, Jr." The trial court further ordered that the fault judgment against them and in favor of Appellee amended returns attached to Southwest Bank's motion to Southwest Bank. Appellants argue in one issue that the amend "should be and [were t]hereby authorized to be trial court erred by rendering default judgment because filed among the papers" of the case. Also on September service of citation was allegedly defective. We affirm. 22, the trial court signed the "Final Default Judgment" against LEJ and Jowell Jr. The trial court's handwritten II. Background docket sheet reflects that the court signed the order Page 2 407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **

granting amendment of the returns before signing the 2004, pet. denied). As long as the record as a whole default judgment. The amended returns were subse- shows that the citation [**5] was served on the defend- quently filed with the trial court clerk on October 3. ant, service of process will not be invalidated. Id. at 444. Whether service strictly complied with the rules is a On December 7, 2011, Appellants filed a motion to question of law that we review de novo. Furst v. Smith, fix date of notice and for new trial in which they claimed 176 S.W.3d 864, 869-70 (Tex. App.--Houston [1st Dist.] to have first acquired actual notice of the judgment on 2005, no pet.). November 11, 2011. In an affidavit dated December 6, 2011, Jowell Jr. averred that he had [**3] incorrectly B. Rule of Civil Procedure 118 believed that Southwest Bank had to collect its debt from someone else before it could execute against his personal 1. Notice of Amendment to Returns of Service assets and that his misunderstanding led Appellants to not file an answer. Jowell Jr. also stated in the affidavit Appellants first argue that the trial court erred by al- [*866] that he was misled into signing the loan docu- lowing amendment of the returns of service without giv- ments at issue. Appellants later withdrew their motion to ing them notice of the proposed amendment. Specifical- fix date of notice and for new trial, stating in open court ly, Appellants contend that rule of civil procedure 118 their intention to instead rely upon their motion to dis- "requires that a defendant receive notice of a request to miss for lack of jurisdiction. The trial court conducted a the trial court to amend a return of service." hearing on Appellants' motion to dismiss for lack of ju- Rule of civil procedure 118 states: risdiction on February 2, 2012, and denied the motion. This restricted appeal followed. At any time in its discretion and upon such notice and on such terms as it deems III. Discussion just, the court may allow any process or Appellants argue in one issue that the trial court proof of service thereof to be amended, erred by rendering default judgment against them be- unless it clearly appears that material cause they were not properly served. Within their sole prejudice would result to the substantial issue, Appellants contend that rule of civil procedure 118 rights of the party against whom the pro- requires notice to the defendant before amending returns, cess issued. that the returns were not properly amended because they were not filed with the court prior to the judgment, that allowing amendment of the returns resulted in material Tex. R. Civ. P. 118 (emphasis added). prejudice to Appellants' substantial rights, and that the Appellants cite several cases to support their argu- amended returns should [**4] have been but were not ment that "Texas cases support the argument that notice attached to the original citations. to a defendant is required before a court may enter an order amending [**6] a return in that the cases ad- A. Standard of Review dressing an amended return and a default [*867] In a restricted appeal, our review is limited to error judgment almost all have notice to a defendant." But that appears on the face of the record. Fid. & Guar. Ins. there is no holding within those cases that notice is al- Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. ways required, and the mere mention of notice to a de- 2006). When a default judgment is attacked by restricted fendant in a particular case does not mean that notice is appeal, we do not indulge any presumptions in favor of always required. For example, one case cited by Appel- valid issuance, service, or return of service. Reed Else- lants involved a bill of review filed months after the de- vier, Inc. v. Carrollton--Farmers Branch Indep. Sch. fault judgment. The court of appeals merely noted that Dist., 180 S.W.3d 903, 905 (Tex. App.--Dallas 2005, pet. "after notice and hearing, the court below signed an order denied). Strict compliance with the procedural rules permitting the officer's return to be amended pursuant to governing citation and return of service must affirma- Rule 118 of the Texas Rules of Civil Procedure." Walker tively appear on the record if the default judgment is to v. Brodhead, 828 S.W.2d 278, 281 (Tex. App.--Austin withstand direct attack. Primate Constr., Inc. v. Silver, 1992, writ denied) (holding trial court had jurisdiction 884 S.W.2d 151, 152 (Tex. 1994). Failure to show strict twenty-two months after default judgment was final to compliance on the face of the record renders any at- order amendment of return of service). Notice was not at tempted service invalid and requires that we set aside the issue in that case. Each of Appellants' other cited author- default judgment. Reed Elsevier, Inc., 180 S.W.3d at ities made similar, passing references to notice to the 905-06. But "strict compliance with the rules does not defendant, but none held that notice is always required require 'obeisance to the minutest detail.'" Williams v. before a return of service may be amended.1 See Hig- Williams, 150 S.W.3d 436, 443-44 (Tex. App.--Austin ginbotham v. General Life & Acci. Ins. Co.., 796 S.W.2d Page 3 407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **

695, 696-97 (Tex. 1990) (discussing trial court amend- S.W.2d at 696 (holding recitation in order denying de- ment of return during hearing [**7] on defendants' mo- fendants' motions for new trial after default judgment tion for new trial); Gonzalez v. Tapia, 287 S.W.3d 805, and while trial court retained plenary power, indicating 807-09 (Tex. App.--Corpus Christi 2009, pet. denied) service was proper, was tantamount to order amending (holding trial court did not err by granting Tapia's motion the return of citation under rule 118 to reflect service to amend proof of service during pendency of Gonzalez's during normal business hours at defendants' home offic- petition for bill of review); Employer's Reinsurance es, thus reflecting proper service); see also Dawson v. Corp. v. Brock, 74 S.W.2d 435, 437 (Tex. Civ. Briggs, 107 S.W.3d 739, 745 (Tex. App.--Fort Worth App.--Eastland 1934, writ dism'd) (noting that trial court 2003, no pet.) (holding return properly amended while permitted amendment of return during hearing on de- trial court retained plenary power although defendant had fendant's motion to set aside judgment). already perfected appeal from default judgment); My- lonas v. Tex. Commerce Bank--Westwood, 678 S.W.2d 1 We also note that, in a slightly different con- 519, 521-22 (Tex. App.--Houston [14th Dist.] 1984, no text, a defendant who has neither filed an answer writ) (upholding default judgment following postjudg- nor appeared in a case is not entitled to notice of ment amendment of return of service to show service at a hearing before a court can properly render de- correct address). fault judgment because the defendant "received The record is clear that the trial court in this case all the notice to which it was entitled when it was amended the returns before it rendered the default judg- originally served with process." Cont'l Carbon ment. Although the trial [**10] court signed both the Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, order authorizing amendment and the default judgment 188-89 (Tex. App.--Dallas 2000, pet. denied); see on September 22, 2011, the trial court's handwritten Long v. McDermott, 813 S.W.2d 622, 624 (Tex. docket sheet reflects that the court signed the order ex- App.--Houston [1st Dist.] 1991, no writ). pressly amending the returns before signing the final On its face, rule 118 gives the trial court discretion default judgment.2 Moreover, the default judgment itself to determine the notice and terms of notice the trial court references the amended returns. And to the extent Ap- "deems just" in a particular case, see Tex. R. Civ. P. 118, pellants argue that the amended returns had not been on and our sister court [**8] has held that a trial court did file for ten days prior to entry of the default judgment, not err by not requiring notice to the defendant of an "[t]he law is clear that when a return is amended under amendment. See Bavarian Autohaus, Inc. v. Holland, Rule 118, the amended return relates back and is regard- 570 S.W.2d 110, 113 (Tex. Civ. App.--Houston [1st Dist.] ed as filed when the original return was filed." Walker, 1978, no writ) (discussing rule 118 and holding that trial 828 S.W.2d at 282 (citing Higginbotham, 796 S.W.2d at court did not err "in not requiring that notice of the 696-97); Bavarian Autohaus, 570 S.W.2d at 113; amendment be given to Bavarian Autohaus"). We there- Lafleaur v. Switzer, 109 S.W.2d 239, 241 (Tex. Civ. fore overrule Appellants' contention that rule 118 always App.--Beaumont 1937, no writ); Employer's Reinsurance requires notice to a defendant before a return of service Corp., 74 S.W.2d at 438. That an amended return relates may be amended. Rather, the trial court has discretion to back to the filing date of the original return satisfies the require notice or to permit amendment without notice. requirement that a return of service be on file for at least Tex. R. Civ. P. 118; see Bavarian Autohaus, 570 S.W.2d ten days before entry of judgment. Walker, 828 S.W.2d at at 113. Thus, we cannot conclude that there is error ap- 282; see Tex. R. Civ. P. 107; Bavarian Autohaus, 570 parent on the face of the record based on the lack of no- S.W.2d at 113. The original returns were filed with the tice to Appellants before the returns were amended. trial court on August [**11] 22, 2011, were on file for more than ten days before the trial court rendered the 2. Amended Returns Relate Back to Original Returns default judgment on September 22, 2011, and the amended returns relate back to the August 22, 2011 fil- Appellants also argue that the default judgment must ing date for the original returns. Walker, 828 S.W.2d at be set aside because the amended returns of service were 282. not filed before the trial court rendered the default judg- ment. But Appellants do not cite any authority that re- 2 In addition, the amended returns were signed quires the amended returns to be filed before rendition of by the constable on September 15, 2011, and the default judgment. The record is clear in this case that were filed with the trial court on September 19, the returns [**9] were amended before judgment, and 2011, as exhibits to Southwest Bank's motion to the Texas Supreme Court has held that the trial court amend the returns. may enter a postjudgment order granting amendment of a return of citation [*868] pursuant to rule 118 while the 3. No Material Prejudice to Substantial Rights trial court retains plenary power. Higginbotham, 796 Page 4 407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **

Appellants also argue that the order allowing 3 The current version of Rule 107 states that amendment of the returns materially prejudiced their the return of service "may, but need not, be en- substantial rights. In that regard, rule of civil procedure dorsed on or attached to the citation." Tex. R. Civ. 118 does not permit amendment of returns of service if P. 107(a). "it clearly appears that material prejudice would result to As to Appellants' contention that the amended re- the substantial rights of the party against whom the pro- turns are defective because they were not verified, the cess issued." Tex. R. Civ. P. 118. Appellants' argument, plain language of former rule 107 required verification however, is only that "[i]n this case, clearly material only when the return of citation was signed by an au- prejudice occurred to the substantial rights of the party thorized person, not when the return was signed by an served. Notably, the Appellants' right to appeal a case on officer. Id.; Myan Mgmt. Grp., L.L.C. v. Adam Sparks which they have meritorious defenses has been material- Family Revocable Trust, 292 S.W.3d 750, 752 (Tex. ly prejudiced by the entry of the order allowing the App.--Dallas 2009, no pet.). The rule did not require that amendment of the returns." Appellants [**12] do not an officer verify his or her signature. [**14] Former explain how the trial court's order amending the returns Tex. R. Civ. P. 107; see Myan Mgmt. Grp., 292 S.W.3d at materially prejudiced their substantial rights, and we note 752-53. The constable who signed the returns and that two courts have [*869] held that a defendant's amended returns in this case was therefore not required substantial rights are not materially prejudiced when the to have his signature verified. amended return corrects only a minor defect in the orig- inal return of citation. See Mylonas, 678 S.W.2d at Appellants also contend that the amended returns 522-23 (holding Mylonas not prejudiced by amendment were not "endorsed on or attached to" the original cita- showing service at address on Memorial Drive rather tions, thereby rendering service defective. Appellants than Memorial Way); see also Walker, 828 S.W.2d at rely on Verlander Enters., Inc. v. Graham, 932 S.W.2d 282 (holding Walker not prejudiced by amendment to 259, 262 (Tex. App.--El Paso 1996, no writ). Verlander show citation left with person over sixteen and to allow is distinguishable because the trial court's order that au- verification of facts shown on return). Appellants do not thorized amendment of the return of service in that case dispute that L.E. Jowell, Jr. was served with the citations did not amend the return by its own terms but authorized on August 18, 2011, or that the returns of service, as the plaintiff to "have the return . . . corrected so as to amended, reflect the true facts of service. Under these conform to law [and to] withdraw the citation and for- circumstances, Appellants have not shown an error on ward it to the Sheriff of El Paso County, Texas, for the face of the record that would require the default proper return of citation," which the plaintiff failed to do. judgment to be set aside. Id. at 260. Here, the trial court's order not only author- ized amendment of the returns but also stated that each C. Rule of Civil Procedure 107 of the returns of service was "[t]hereby amended to re- flect" service on Jowell Jr. and on L.E.J. through Jowell Appellants asserted at oral argument and contend in Jr. Moreover, unlike the order in Verlander, the trial their supplemental brief that the default judgment must court here did not order that the original citations be be set aside because the amended returns were not at- [**15] [*870] withdrawn from the trial court or for- tached to the citations or verified as required by rule of warded to the sheriff for correction. And because the civil procedure 107. [**13] Rule of civil procedure 107 original citations were not withdrawn, the amended re- was amended effective January 1, 2012, but the version turns could not have been attached to or endorsed on the of Rule 107 applicable to this case stated in relevant part original citations because the original citations remained as follows: on file with the trial court clerk. The return of the officer or authorized Appellants also rely on a statement from Verlander person executing the citation shall be en- that "[a]lthough the second return was intended as an dorsed on or attached to the same; it shall amendment of the first return pursuant to Rule 118, we state when the citation was served and the do not read Rule 118 to abrogate Rule 107's requirement manner of service and be signed by the that the return, whether original or amended, be endorsed officer officially or by the authorized on or attached to the citation." Id. at 262. In addition to person. The return of citation by an au- the foregoing mentioned differences, the court in Ver- thorized person shall be verified. . . . lander noted a final caveat in Higginbotham that its holding was restricted to cases in which there is a record such as a hearing on a motion for new trial and an order Tex. R. Civ. P. 107, 733-34 S.W.2d XLV (1988, amend- expressly amending the return or an order that is tanta- ed 1990) (hereinafter Former Tex. R. Civ. P. 107).3 mount to amending the return of citation. See Verlander, 932 S.W.2d at 263. The court of appeals in Verlander Page 5 407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **

pointed out that there was no such hearing nor was there dence over former rule 107 in that context, it does not an order expressly amending the return or that was tan- follow that rule 118 would not take precedence in this tamount to amendment but that the order merely author- context. Rather, it is sufficient that the initial return was ized the plaintiff to [**16] have the sheriff correct the endorsed on or attached to the original citation because return. Id. In this case, there is an order expressly the amended return relates back to the original return and amending the return. because the original and amended returns are read to- gether as one document. See Higginbotham, 796 S.W.2d To the extent that the court in Verlander may have at 696-97; Walker, 828 S.W.2d at 282; Bavarian Auto- intended to hold that rule 118 did not override the re- haus, 570 S.W.2d at 113; Employer's Reinsurance Corp., quirement of former rule 107 that the return, whether 74 S.W.2d at 438; see also Kubovy, 2003 Tex. App. amended or original, be endorsed on or attached to the LEXIS 4824, 2003 WL 21299938, at *3. citation, we respectfully disagree. Former rule 107 did not mention amended returns of service. And although 4 The current version of rule 107 contains the former rule 107 required that a return of service be on same ten-day requirement. See Tex. R. Civ. P. file for at least ten days before the trial court could 107(h). properly render default judgment, see Former Tex. R. Civ. P. 107,4 Texas courts for decades have held that a The original returns of service in this case were en- return amended under rule 118 relates back to and is dorsed on the citations themselves, and the amended regarded as filed when the original return was filed. See returns relate back to and are read together with the Walker, 828 S.W.2d at 282. Thus, a trial court could [*871] original returns. We hold that the amended re- properly render default judgment when the original re- turns of service [**18] in this case are not defective on turn had been on file for at least ten days even though the the ground that they are not endorsed on or attached to amended return had not. Id.; see Higginbotham, 796 the citation. We overrule Appellants' sole issue. S.W.2d at 696-97; Bavarian Autohaus, 570 S.W.2d at 113; Employer's Reinsurance Corp., 74 S.W.2d at 438; IV. Conclusion see also Kubovy v. Cintas Corp., No. 01-02-00521-CV, Having overruled LEJ and Jowell Jr.'s sole issue, we 2003 Tex. App. LEXIS 4824, 2003 WL 21299938, at *3 affirm the trial court's judgment. (Tex. App.--Houston [1st Dist.] June 5, 2003, no pet.) [**17] (mem. op.) ("[I]t has long been the law in Texas ANNE GARDNER that the original and amended returns are read as one JUSTICE document."). In other words, when a return is amended under rule 118, the provisions of rule 118 control over PANEL: GARDNER, MEIER, and GABRIEL, JJ. any potentially conflicting provisions of former rule 107. Given that Texas courts hold that rule 118 takes prece- DELIVERED: July 25, 2013 | | Positive As of: April 7, 2015 5:52 PM EDT

Lucas v. James Jolly Clark & Eonic Creations Court of Appeals of Texas, Third District, Austin June 15, 2011, Filed NO. 03-10-00474-CV

Reporter 347 S.W.3d 800; 2011 Tex. App. LEXIS 4600

C. Michael Lucas, Appellant v. James Jolly Clark & for admission was akin to a request that the investor Eonic Creations, Inc., Appellees admit all allegations, including those concerning damages, as true, but such sweeping requests could Subsequent History: Petition for review denied by not be deemed judicial admissions or provide any Clark v. Lucas, 2011 Tex. LEXIS 913 (Tex., Dec. 2, evidence to support a trial court's damages award, for 2011) purposes of Tex. R. Civ. P. 243. Relying on an embedded request for admission that precluded any presentation Prior History: [**1] FROM THE DISTRICT COURT OF of evidence on unliquidated damages undermined Rule TRAVIS COUNTY, 200TH JUDICIAL DISTRICT. NO. 243. No objection was necessary to reach the merits of D-1-GN-10-001068, HONORABLE LORA J. the issue because the question was one of evidentiary LIVINGSTON, JUDGE PRESIDING. sufficiency. As no evidence other than this request for admission existed supporting appellees' claims for Disposition: Affirmed in Part; Reversed and Remanded unliquidated damages or proving the foreseeability of in Part. the damages, the evidence was insufficient to support the default judgment's unliquidated damages award. Core Terms Outcome

request for admission, damages, unliquidated damages, The court affirmed the issuance of a default judgment, default judgment, admissions, lost profits, deemed but reversed that portion of the default judgment that admitted, awards, trial court, admit, cause of action, awarded unliquidated damages. The court remanded sweepingly, pet for further proceedings.

Case Summary LexisNexis® Headnotes

Procedural Posture Civil Procedure > ... > Default & Default Judgments > Default Judgments > Entry of Default Judgments Appellees, a company and its founder, sued appellant investor for breach of contract and other tort claims. The Civil Procedure > Remedies > Damages > Monetary Damages District Court of Travis County, 200th Judicial District (Texas), issued a default judgment in favor of appellees Contracts Law > ... > Measurement of Damages > and awarded them unliquidated damages. The investor Foreseeable Damages > Lost Profits appealed. HN1 When a no-answer default judgment is rendered, Overview the defendant's liability for all causes of action pleaded is conclusively established and all allegations of fact set Appellees sued the investor for various torts and breach forth in the petition are deemed admitted, except the of contract, and were awarded damages under a default amount of unliquidated damages. After a default judgment. The court affirmed the issuance of a default judgment occurs, unliquidated damages, that is, judgment, but reversed that portion of the judgment that damages not expressly provided for within a written awarded damages, and remanded. Appellees' request instrument, must be proven to the trial court. Tex. R. Civ. 347 S.W.3d 800, *800; 2011 Tex. App. LEXIS 4600, **1

P. 243. Recovery for unliquidated damages in the form uses deemed admissions to try to preclude presentation of lost profits requires that the injured party do more of the merits of a case. Therefore, overly broad, than show that it suffered some lost profits. The amount merits-preclusive requests for admissions are improper of the loss must be shown by competent evidence with and may not result in deemed admissions. A request is reasonable certainty. To meet this improper and will not be deemed admitted where the reasonably-certain-evidence standard, opinions or party requests that the opposing party admit or deny estimates of lost profits must, at a minimum, be based every allegation made in petition. Sweepingly broad on objective facts, figures, or data from which the requests for admission may not result in deemed amount of lost profits can be ascertained. admissions.

Civil Procedure > Remedies > Damages > Monetary Civil Procedure > ... > Methods of Discovery > Requests Damages for Admissions > Content & Form of Admissions Civil Procedure > Remedies > Damages > Monetary HN2 See Tex. R. Civ. P. 243. Damages

Civil Procedure > ... > Methods of Discovery > Requests HN6 Tex. R. Civ. P. 243 requires that, in unliquidated for Admissions > Effect of Admissions causes of action, the court shall hear evidence as to Evidence > Types of Evidence > Judicial Admissions > damages and shall render judgment therefor. Tex. R. Effects Civ. P. 243. Relying on an embedded request for admission that precludes any presentation of evidence HN3 Generally, when a party fails to respond to a on unliquidated damages undermines the spirit of Rule request for admission, either by timely answer, written 243 and is not consistent with its purpose. Requests for objection, or motion to file late answers, the facts admission were simply not meant to be used to wholly contained in the request are deemed admitted. preclude a defendant from presenting his defense. This Admissions, once deemed admitted, are judicial is particularly true in the context of the heightened admissions and may not be contradicted. evidentiary standard required to prove lost profits. The reasonably-certain-evidence standard requires that Civil Procedure > ... > Methods of Discovery > Requests estimates of lost profits be based on facts, figures, or for Admissions > General Overview data. Such estimates must be founded in objective facts HN4 The primary purpose of requests for admissions is and cannot be generic or conclusory in nature. to simplify trials by eliminating matters about which Civil Procedure > ... > Methods of Discovery > Requests there is no real controversy. They were never intended for Admissions > Objections to Requests for Admissions to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of HN7 See Tex. R. Civ. P. 193.1. defense. Courts have cautioned that litigants should not be allowed to use requests for admissions as a tool to Civil Procedure > ... > Methods of Discovery > Requests trap their opposition. for Admissions > Objections to Requests for Admissions

Civil Procedure > ... > Methods of Discovery > Requests HN8 It is true that typically any challenge to a request for Admissions > Content & Form of Admissions for admission must be in compliance with Tex. R. Civ. P. Constitutional Law > ... > Fundamental Rights > Procedural 193.1. The question of a deemed admission's Due Process > Scope of Protection overbreadth only arises when a request for admission has been deemed admitted, which, by definition, occurs HN5 The rule regarding requests for admissions was after a party has failed to timely respond or object to the designed, not as a trap to prevent the presentation of request. No request for admission would be deemed the truth in a full hearing but as a tool for the fair admitted if the responding party had objected in writing disposition of litigation with a minimum of delay. When a within the parameters of Rule 193.1. Therefore, were party uses deemed admissions to try to preclude the court to require a party to object in writing to a presentation of the merits of a case, however, due request for admission's overbreadth in order to preserve process concerns may arise. Due process is the guiding the issue on appeal, no appellate court would ever face rule and principle that applies when requests for the issue. Several other courts of appeals have, admissions are not used as intended, and when a party however, squarely addressed whether a "sweepingly Page 2 of 7 347 S.W.3d 800, *800; 2011 Tex. App. LEXIS 4600, **1

broad" request for admission may become a deemed Opinion by: Diane M. Henson admission when a party fails to respond. In addressing this issue, none of these courts concluded that a Rule Opinion 193.1 objection was required. [*801] Eonic Creations, Inc. and its founder, James Civil Procedure > ... > Methods of Discovery > Requests for Admissions > Content & Form of Admissions Jolly Clark, (collectively, the "Appellees") sued investor C. Michael Lucas for breach of contract and various Civil Procedure > Appeals > Reviewability of Lower Court claims of tortious conduct. When Lucas failed to respond Decisions > Preservation for Review to the Appellees' petition, the trial court issued a default Civil Procedure > ... > Standards of Review > Substantial judgment in favor of the Appellees and awarded Evidence > Sufficiency of Evidence unliquidated damages of $75,000 to James Jolly Clark and $9,925,000 to Eonic Creations. Lucas appeals, HN9 In viewing the effect of an overly broad request for claiming that the absence of a reporter's record from the admission, the court's analysis centers on whether a default judgment hearing deprived Lucas of the ability trial court is permitted to find that the request for admission irrefutably established the facts therein such to review the trial court's awards, that the trial court's that no additional evidence is required. In other words, unliquidated damages awards are not supported by the issue before the court concerns whether an overly sufficient evidence, and that the use of requests for broad request for admission, deemed true by the trial admissions embedded within a petition to support the court, would be legally sufficient evidence to support a no-answer default judgment awards of unliquidated trial court's judgment for unliquidated damages. A damages was "inappropriate" and undermined Texas sufficiency of the evidence question does not require an Rule of Civil Procedure 243. We affirm the issuance of objection at the trial court to be heard on appeal. Tex. R. the default judgment, reverse that portion [**2] of the App. P. 33.1(d) provides that the insufficiency of default judgment awarding unliquidated damages, and evidence complaint may be made for first time on remand the case to the trial court for further proceedings appeal. consistent with this opinion.1

Contracts Law > ... > Damages > Types of Damages > BACKGROUND Consequential Damages Contracts Law > ... > Measurement of Damages > On April 2, 2010, the Appellees sued Lucas for breach Foreseeable Damages > General Overview of contract, misappropriation of trade secrets, unjust enrichment, conversion, and aiding and abetting Eonic HN10 Consequential damages may not be recovered Creations' officers and employees in violating their unless they are foreseeable and traceable to the fiduciary duties to the company. In their petition, the wrongful act and result from it. Appellees claimed that Lucas entered into a contract with Clark and promised to pay $60,000 to Clark for Civil Procedure > Appeals > Standards of Review > General personal debts and $15,000 to Eonic Creations for Overview certain patent rights to Eonic Creations' products. HN11 Tex. R. App. P. 47.1 states that the court of According to the Appellees' petition, Lucas also appeals must only address issues necessary to final contracted to make a good faith effort to obtain a disposition of appeal. $600,000 small-business loan to further the business interests of Eonic Creations. The Appellees allege that Counsel: For Appellant: Mr. Barry K. Bishop, Clark, Lucas failed to pay either sum of money and [*802] did Thomas & Winters, PC, Austin, TX. not make a good faith effort to obtain the promised loan. In addition, the Appellees contend that Lucas enticed For Appellees: Mr. D. Todd Smith, Smith Law Group, Robert Clark, CEO and acting president of Eonic PC, Austin, TX. Creations, and Paul Morganstern, engineer for Eonic Creations, to leave Eonic [**3] Creations and form a Judges: Before Chief Justice Jones, Justices Henson new company with Lucas using Eonic Creations' and Goodwin. products and trade secrets. In their petition, the

1 We also grant Lucas's pending motion to withdraw and substitute counsel. Page 3 of 7 347 S.W.3d 800, *802; 2011 Tex. App. LEXIS 4600, **3

Appellees sought injunctive relief and damages, and post-judgment interest to Eonic Creations. Lucas including specific performance of Lucas's contractual did not file a motion for new trial, but filed a notice of obligations, compensatory damages, consequential appeal. damages of over $10 million in lost profits and loss of reputation, punitive damages, and attorney's fees and Lucas does not appeal the trial court's finding of expenses. [**5] liability, nor does he appeal the injunction against him or the attorney's fees and court costs awarded.4 The Appellees incorporated two requests for admissions Lucas's only arguments on appeal involve the trial into their original petition. The requests for admissions court's awards of unliquidated "actual damages," were as follows: totaling $75,000 to Clark and $9,925,000 to Eonic Creations. Request for Admission 1: The contract attached to this petition as Exhibit A is a true and accurate In three issues on appeal, Lucas argues that (1) the copy of the contract that you signed and entered absence of a reporter's record from the default judgment into on or about May 22, 2009.2 hearing deprived Lucas and this Court of the ability to adequately review the trial court's damages awards, (2) Request for Admission 2: As a proximate result the trial court's damages awards are not supported by of your breaching the contract made the basis legally and factually sufficient evidence, and (3) of this suit, the Plaintiffs have suffered supporting a no-answer default judgment's unliquidated consequential damages in an amount not less damages award with requests for admissions than ten million dollars. embedded in a petition is [*803] "inappropriate" and undermines Texas Rule of Civil Procedure 243. Lucas did not file an answer to the petition nor did he respond to the requests for admissions.3 DISCUSSION

On June 23, 2010, the Appellees filed a motion for HN1 When a no-answer default judgment is rendered, default judgment, claiming that Lucas's failure to the defendant's liability for all causes of action pleaded respond to Request for Admission 2 constituted a is conclusively established and all allegations of fact set deemed admission that Lucas's contractual breach forth in the petition are deemed admitted, except the caused the Appellees damages in the amount of $10 amount of unliquidated damages. Dolgencorp of Tex., million. Appellees also attached an affidavit by their trial Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) [**6] (per counsel averring that Lucas never served an answer on curiam); Texas Commerce Bank, N.A. v. New, 3 S.W.3d the Appellees and identifying reasonable and necessary 515, 516 (Tex. 1999) (per curiam). After a default attorney's fees. After "reviewing the Officers Return judgment occurs, unliquidated damages, i.e., damages filed May 25, 2010 and considering the pleadings and not expressly provided for within a written instrument, official records on file including Plaintiff's Motion for must be proven to the trial court. See Tex. R. Civ. P. Default Judgment as well as any evidence and 243.5 Recovery for unliquidated damages in the form of arguments," the trial court issued a default judgment lost profits, as the Appellees have requested here, granting a permanent injunction and ordering Lucas to requires that the injured party do more than show that it pay $75,000 in "actual damages" plus court costs, suffered some lost profits. The amount of the loss must attorney's fees, and pre- and post-judgment interest to be shown by competent evidence with reasonable Clark and $9,925,000 in "actual damages" plus pre- certainty. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d

2 Though the request for admission indicates that a copy of the contract was attached to the original petition, no copy of the contract exists in the appellate record. 3 The Appellees also included requests [**4] for disclosure, interrogatories, and requests for production in their petition. Lucas did not respond to any of these discovery requests. 4 Lucas represented in his brief that a bill of review is pending in the district court alleging that Lucas was never served with citation. 5 HN2 "If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to damages and shall render judgment therefor . . . ." Tex. R. Civ. P. 243. Page 4 of 7 347 S.W.3d 800, *803; 2011 Tex. App. LEXIS 4600, **6

80, 84 (Tex. 1992). To meet this merits of a case, however, due process concerns may reasonably-certain-evidence standard, opinions or arise. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. estimates of lost profits must, at a minimum, be based 2005); In re Rozelle, 229 S.W.3d 757, 764 (Tex. on objective facts, figures, or data from which the App.—San Antonio 2007) ("[Due process] is the guiding amount of lost profits can be ascertained. Id. rule and principle that applies when requests for admissions are not used as intended, and when a party The Appellees rely solely on Request for Admission 2, uses deemed admissions to try to preclude presentation which was embedded in their petition, to prove that they of the merits of a case." (internal quotation marks and suffered $10 million dollars of unliquidated damages in citation [**9] omitted)). Therefore, overly broad, the [**7] form of lost profits. Request for Admission 2 merits-preclusive requests for admissions are improper stated: "As a proximate result of your breaching the and may not result in deemed admissions. See In re contract made the basis of this suit, the Plaintiffs have Estate of Herring, 970 S.W.2d 583, 589 (Tex. suffered consequential damages in an amount not less App.—Corpus Christi 1998, no pet.) (holding that than ten million dollars." HN3 Generally, when a party admissions requesting party to "admit [wife] did not fails to respond to a request for admission, either by transfer community property . . . without your knowledge timely answer, written objection, or motion to file late and consent" and "admit you have not been injured in answers, the facts contained in the request are deemed any manner as a direct result of the alleged acts" were admitted. Oliphant Fin., LLC v. Galaviz, 299 S.W.3d sweepingly broad and not deemed admitted); Birdo, 829, 838 (Tex. App.—Dallas 2009, no pet.); Sherman 842 S.W.2d at 701 (holding that request is improper and Acquisition II LP v. Garcia, 229 S.W.3d 802, 812 (Tex. will not be deemed admitted where party requests that App.—Waco 2007, no pet.). Admissions, once deemed opposing party admit or deny every allegation made in admitted, are judicial admissions and may not be petition); Powell v. City of McKinney, 711 S.W.2d 69, 71 contradicted. Oliphant Fin., 299 S.W.3d at 837; (Tex. App.—Dallas 1986, no writ) (holding that request Sherman Acquisition, 229 S.W.3d at 812-13. As all of asking plaintiffs to "admit [they] no longer wish to pursue Lucas's points on appeal are impacted by whether or their cause of action in the above styled and numbered not Request for Admission 2, standing alone, can cause" was sweepingly broad and should not be support the trial court's $10 million default judgment, we deemed admitted); see also LRT Record Servs., Inc. v. will begin by addressing the purpose behind requests Archer, No. 05-00-00324-CV, 2001 Tex. App. LEXIS for admissions. 1447, at *2-3 (Tex. App.—Dallas Mar. 7, 2001, no pet.) (mem. op.) ("[S]weepingly broad requests for admission Purpose of Requests for Admissions may not result in deemed admissions."). HN4 The primary purpose of requests for admissions is Effect [**10] of Request for Admission 2 to "simplify trials by eliminating matters about which there is no real controversy." Stelly v. Papania, 927 The Appellees argue that the conclusory statement S.W.2d 620, 622 (Tex. 1996) [**8] (citing Sanders v. contained in Request for Admission 2 may, as the sole Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (Tex. 1950)). evidence on the matter, properly support a $10 million They were never intended to be used as a demand default judgment for lost profits, a damages component upon a plaintiff or defendant to admit that he had no typically requiring an extensive and fact-intensive cause of action or ground of defense. Id. Courts have inquiry. This request for admission, however, is the type cautioned that litigants should not be allowed to use of overly broad, merits-preclusive request that other requests for admissions as a tool to trap their opposition. courts have cautioned against. Request for Admission See Birdo v. Hammers, 842 S.W.2d 700, 701 (Tex. 2, asking Lucas to admit that the Appellees have App.—Tyler 1992, no writ). suffered $10 million in damages, aimed to eliminate Lucas's ability to present a defense to the only element HN5 The rule regarding requests for admissions "was at issue, proof of unliquidated damages. This request is designed, not as a trap to prevent the presentation of akin to a request that Lucas admit all allegations made the truth in a full hearing but as a tool for the fair in the Appellees' petition, including those regarding disposition of litigation with a minimum of delay." Taylor damages, as true. Such sweeping requests for v. Lewis, 553 S.W.2d 153, 160 (Tex. Civ. App.—Amarillo admissions cannot be deemed judicial admissions, see 1977, writ ref'd n.r.e.). When a party uses deemed Birdo, 842 S.W.2d at 701, nor can they provide any admissions [*804] to try to preclude presentation of the evidence to support a trial court's damages award. Page 5 of 7 347 S.W.3d 800, *804; 2011 Tex. App. LEXIS 4600, **10

In making this determination, we must also consider for admission despite lack of Rule 193.1 objection); HN6 Texas Rule of Civil Procedure 243, requiring that, Birdo, 842 S.W.2d at 701 [**13] (same); Powell, 711 in unliquidated causes of action, the court "shall hear S.W.2d at 71 (same); see also LRT Record Servs., Inc., evidence as to damages and shall render judgment 2001 Tex. App. LEXIS 1447, at *2-3 (same). In therefor." Tex. R. Civ. P. 243. [**11] Relying on an addressing this issue, none of these courts concluded embedded request for admission that precludes any that a Rule 193.1 objection was required. presentation of evidence on unliquidated damages undermines the spirit of Rule 243 and is not consistent We agree with our sister courts that no objection was with its purpose. Requests for admission were simply necessary to reach the merits of the issue in this Court. not meant to be used in the way that the Appellees have This is true because the question before us is one of used them here, i.e., to wholly preclude a defendant evidentiary sufficiency rather than procedural error. HN9 from presenting his defense. This is particularly true in In viewing the effect of an overly broad request for the context of the heightened evidentiary standard admission, our analysis centers on whether a trial court required to prove lost profits. The is permitted to find that the request for admission reasonably-certain-evidence standard requires that irrefutably established the facts therein such that no estimates of lost profits be based on facts, figures, or additional evidence is required. In other words, the data. Such estimates must be founded in objective facts issue before us concerns whether an overly broad and cannot be generic or conclusory in nature. See Holt request for admission, deemed true by the trial court, Atherton Indus., Inc., 835 S.W.2d at 84. Considering would be legally sufficient evidence to support a trial this increased evidentiary standard, coupled with Rule court's judgment for unliquidated damages. A sufficiency 243's requirement that the court hear evidence [*805] of the evidence question does not require an objection on unliquidated damages, this sweepingly broad request at the trial court to be heard on appeal. See Tex. R. App. for admission is not sufficient to constitute conclusive P. 33.1(d) (insufficiency of evidence complaint may be evidence of the statement that it contains. made for first time on appeal).

Preservation of Issue on Appeal As no evidence other than this request for admission exists supporting the Appellees' [**14] claims for The Appellees argue that Lucas waived any objection to unliquidated damages or proving the foreseeability of the request for admission when he failed to file a timely such damages, see Mood v. Kronos, 245 S.W.3d 8, 12 written objection to the response, as required by Rule (Tex. App.—Dallas 2007, pet. denied) HN10 193.1. [**12] See Tex. R. Civ. P. 193.1 HN7 ("A party ("[C]onsequential damages may not be recovered must make an objection to written discovery in unless they are foreseeable and traceable to the writing—either in the response or in a separate wrongful act and result from it.") (citing Stuart v. Bayless, document—within the time for response."). While HN8 964 S.W.2d 920, 921 (Tex. 1998)), the evidence is it is true that typically any challenge to a request for neither legally nor factually sufficient to support the admission must be in compliance with Rule 193.1, the default judgment's unliquidated damages award. See facts at issue here present a unique situation. The City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. question of a deemed admission's overbreadth only 2005); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). arises when a request for admission has been deemed We sustain Lucas's second point on appeal. admitted, which, by definition, occurs after a party has failed to timely respond or object to the request. No Because we agree with Lucas that the evidence is request for admission would be deemed admitted if the insufficient to support the trial court's unliquidated responding party had objected in writing within the damages award, we need not consider Lucas's first and parameters of Rule 193.1. Therefore, were we to require third issues. See HN11 Tex. R. App. P. 47.1 (stating that a party to object in writing to a request for admission's court of appeals must only address [*806] issues overbreadth in order to preserve the issue on appeal, necessary to final disposition of appeal). no appellate court would ever face the issue. Several other courts of appeals have, however, squarely CONCLUSION addressed whether a "sweepingly broad" request for admission may become a deemed admission when a Because we hold that the evidence is legally and party fails to respond. See In re Estate of Herring, 970 factually insufficient to support the trial court's damages S.W.2d at 589 (addressing "sweepingly broad" request award, we affirm the issuance of the default judgment, Page 6 of 7 347 S.W.3d 800, *806; 2011 Tex. App. LEXIS 4600, **14

reverse that portion of the default judgment awarding Affirmed in Part; Reversed and Remanded in Part the Appellees unliquidated damages, and remand the case for further [**15] proceedings consistent with this Filed: June 15, 2011 opinion. Diane M. Henson, Justice Before Chief Justice Jones, Justices Henson and Goodwin

Page 7 of 7 | | Cited As of: April 7, 2015 5:54 PM EDT

Marquez v. Greig Court of Appeals of Texas, First District, Houston August 9, 2012, Opinion Issued NO. 01-10-01118-CV

Reporter 2012 Tex. App. LEXIS 6551; 2012 WL 3228710

DAVE MARQUEZ, Appellant v. NIKKI GREIG, ON Outcome BEHALF OF TEXAS STARS CHEERLEADING, Appellee The default judgment was reversed and the case remanded for further proceedings. Prior History: [*1] On Appeal from the 400th District Court, Fort Bend County, Texas. Trial Court Case No. LexisNexis® Headnotes 09-DCV-176744. Civil Procedure > ... > Default & Default Judgments > Core Terms Default Judgments > Entry of Default Judgments Civil Procedure > Appeals > Record on Appeal service of process, trial court, certificate, default Civil Procedure > Appeals > Reviewability of Lower Court judgment, forwarded, face of the record, per curiam, Decisions > Timing of Appeals nonresident, indicates HN1 Generally, if a defendant does not timely file an Case Summary answer and a return of service has been on file for ten days, the plaintiff may take judgment by default, Tex. R. Civ. P. 107(h) & 239. The defendant can prevail on a Procedural Posture restricted appeal only if (1) it filed notice of the restricted The 400th District Court, Fort Bend County, Texas, appeal within six months after the judgment was signed, rendered a default judgment in favor of appellee teacher (2) it was a party to the underlying lawsuit, (3) it did not on behalf of a cheerleading school. Appellant buyer participate in the hearing that resulted in the judgment appealed. complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions Overview of law, and (4) error is apparent on the face of the The buyer argued that the error was apparent on the record, Tex. R. App. P. 26.1(c) & 30. The face of the face of the record because it showed that the Secretary record consists of all the papers on file in the appeal. of State forwarded the citation and petition to an incorrect address. The appellate court found that there Civil Procedure > ... > In Rem & Personal Jurisdiction > In were numerous indications in the record that the buyer's Personam Actions > Long Arm Jurisdiction address was "2155 North Fairview," but the Secretary Civil Procedure > ... > Service of Process > Methods of of State's certificate indicated that the citation and Service > Service on Agents petition were forwarded to "2155 Northfairview." The return receipt indicated that the process sent to that HN2 For a trial court to have jurisdiction over a address was "unclaimed." Given the notation on the nonresident defendant, the Secretary of State must return receipt and the multiple indications in the record forward copies of the citation and petition to the that the buyer's actual address differed, if only slightly, defendant as required by the long-arm statute. Under from the address to which the Secretary of State the long-arm statute, the Texas Secretary of State is an forwarded service of process, the record did not agent for service of process on a nonresident defendant affirmatively show strict compliance with the rules who engages in business in this state but does not governing service of process. maintain a regular place of business in this state or a 2012 Tex. App. LEXIS 6551, *1

designated agent for service of process, in any had represented. The petition asserted multiple causes proceeding arising out of business done in Texas and to of action including breach of contract, violations of the which the nonresident defendant is a party, Tex. Civ. Texas Deceptive Trade Practices Act, and fraud. Prac. & Rem. Code Ann. § 17.044(b) (2008). Once the Secretary of State is served with duplicate copies of In the petition, Greig identified the Texas Secretary of process for a nonresident defendant that reflect the State as the agent for service of process because nonresident's name and home or home office address, Marquez lived [*2] at "2155 North Fairview" in Santa it must immediately mail to the provided address a copy Ana, California. The citation likewise reflects that of the process by registered or certified mail with return Marquez's street address was "2155 North Fairview." receipt requested, Tex. Civ. Prac. & Rem. Code Ann. § However, the Secretary of State's certificate of service 17.045(a), (d). of process reflects that copies of the citation and petition were forwarded by certified mail to "2155 Northfairview" Civil Procedure > ... > Service of Process > Methods of in Santa Ana, California. The certificate further reflects Service > Service on Agents that the return receipt bore a notation of "unclaimed." Marquez never answered or otherwise appeared in the Civil Procedure > Appeals > Notice of Appeal trial court until filing his notice of appeal. HN3 In a restricted appeal, there is no presumption in favor of valid service of process. The failure to Several weeks after the Secretary of State's certificate affirmatively show strict compliance with the rules was filed in the trial court, Greig filed a motion for default governing service of process renders the attempted judgment. Although the motion acknowledged that the service invalid and of no effect. However, absent fraud return receipt bore a notation of "unclaimed," it asserted or mistake, the Secretary of State's certificate of service that the Secretary of State had served Marquez with of process is conclusive evidence that it received and copies of the citation and petition. The motion stated forwarded service as required by statute. that Marquez's last known address was "2155 North Fairview" in Santa Ana, California. A "Plaintiff's Judges: Panel consists of Justices Bland, Massengale, Certificate of Last Known Address" signed by Greig's and Brown. counsel reflects that same address.

The trial court held a hearing on Greig's motion for Opinion by: Michael Massengale default judgment. Following the hearing, the trial court signed an order granting the motion [*3] and rendering Opinion against Marquez a money judgment of $11,048.87 for damages, $4,125.00 for attorney's fees, and court costs. MEMORANDUM OPINION A notice of default judgment was sent to Marquez at "2155 North Fairview" in Santa Ana, California. Appellant Dave Marquez brings this restricted appeal from a default judgment rendered in favor of appellee After the default judgment was signed by the trial court, Nikki Greig on behalf of Texas Stars Cheerleading. Marquez timely filed notice of a restricted appeal. Marquez argues that error appears on the face of the record because the Secretary of State's certificate of Analysis service of process indicates that the citation and original petition were delivered to an incorrect address. We In his sole issue, Marquez argues that error is apparent reverse the default judgment and remand for further on the face of the record because it shows that the proceedings. Secretary of State forwarded the citation and petition to an incorrect address. He contends that "2155 North Background Fairview," as his address appears in Greig's petition, is not the same as "2155 Northfairview," as his address Nikki Greig filed a petition in district court alleging that appears in the Secretary of State's certificate of service Dave Marquez had contracted with her to provide dance of process. Therefore, Marquez argues, the record does and cheerleading choreography services. She alleged not show compliance with the rules governing service of that Marquez performed pursuant to that contract, but process, the default judgment must be reversed, and his services were not of the grade and quality that he the case must be remanded for a new trial. Page 2 of 4 2012 Tex. App. LEXIS 6551, *3

Although Greig has not filed an appellee's brief, she has S.W.2d 884, 885 (Tex. 1985) (per curiam). The failure to filed a motion to dismiss the appeal. She contends that affirmatively show strict compliance with the rules the record demonstrates that Marquez was properly governing service of process renders the [*6] attempted served at his home address. This court ordered that service invalid and of no effect. Uvalde Country Club, Greig's motion be carried with submission of the case. 690 S.W.2d at 885. However, absent fraud or mistake, the Secretary of State's certificate of service of process HN1 Generally, [*4] if a defendant does not timely file an is conclusive evidence that it received and forwarded answer and a return of service has been on file for ten service as required by statute. Capitol Brick, Inc. v. days, the plaintiff may take judgment by default. See Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986). TEX. R. CIV. P. 107(h) & 239. The defendant can prevail on a restricted appeal only if (1) it filed notice of the Marquez analogizes this case to Royal Surplus Lines restricted appeal within six months after the judgment Insurance Co. v. Samaria Baptist Church, 840 S.W.2d was signed, (2) it was a party to the underlying lawsuit, 382 (Tex. 1992) (per curiam). In that case, the plaintiff (3) it did not participate in the hearing that resulted in the unsuccessfully attempted service of process on the judgment complained of and did not timely file any defendant's registered agent. Id. at 382. Pursuant to the postjudgment motions or requests for findings of fact Texas Non-Profit Corporation Act, the plaintiff then and conclusions of law, and (4) error is apparent on the attempted service through the Secretary of State. Id. face of the record. TEX. R. APP. P. 26.1(c) & 30; Ins. Co. The address of the defendant's registered agent was of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per listed in the Secretary's public records as "1201 Bessie." curiam). The only matter at issue in this restricted Id. at 383. However, the Secretary's certificate reflected appeal is whether error is apparent on the face of the that it sent the citation and petition to "1201 Bassie," record. The face of the record consists of all the papers and the letter was returned with the notation on file in the appeal. Norman Commc'ns v. Tex. Eastman "unclaimed." Id. The defendant did not appear, and the Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). trial court rendered a default judgment. Id. at 382. On appeal, the court of appeals reversed the default HN2 For a trial court to have jurisdiction over a judgment and remanded for a new trial. Id. at 383. In nonresident defendant, the Secretary of State must [*7] denying the plaintiff's application for writ of error, forward copies of the citation and petition to the the Supreme Court noted that "[a] typographical error in defendant as required by the long-arm statute. Comm'n the forwarding address typed by the Secretary is of Contracts of Gen. Exec. Comm. v. Arriba, Ltd., 882 grounds to set aside a default judgment based on S.W.2d 576, 585 (Tex. App.—Houston [1st Dist.] 1994, substituted service." Id. no pet.) [*5] (citing Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973)). Under the long-arm statute, This case is analogous to Royal Surplus Lines. There the Texas Secretary of State is an agent for service of are numerous indications in the record that Marquez's process on a nonresident defendant who engages in address is "2155 North Fairview," but the Secretary of business in this state but does not maintain a regular State's certificate indicates that the citation and petition place of business in this state or a designated agent for were forwarded to "2155 Northfairview." The return service of process, in any proceeding arising out of receipt, like the one in Royal Surplus Lines, indicates business done in Texas and to which the nonresident that the process sent to that address was "unclaimed." defendant is a party. See TEX. CIV. PRAC. & REM. CODE Given the notation on the return receipt and the multiple ANN. § 17.044(b) (West 2008). Once the Secretary of indications in the record that Marquez's actual address State is served with duplicate copies of process for a differed, if only slightly, from the address to which the nonresident defendant that reflect the nonresident's Secretary of State forwarded service of process, we name and home or home office address, it must hold that the record does not affirmatively show strict immediately mail to the provided address a copy of the compliance with the rules governing service of process. process by registered or certified mail with return receipt See Uvalde Country Club, 690 S.W.2d at 885. requested. See id. § 17.045(a), (d). Accordingly, we sustain Marquez's issue on appeal, reverse the default judgment, and remand the case for HN3 In a restricted appeal, there is no presumption in further proceedings. See Royal Surplus Lines, 840 favor of valid service of process. Primate Const., Inc. v. S.W.2d at 383. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); Uvalde Country Club v. Martin Linen Supply Co., 690 Conclusion Page 3 of 4 2012 Tex. App. LEXIS 6551, *7

We deny as moot Greig's [*8] motion to dismiss the reversible error in the trial court's judgment. Accordingly, appeal. We reverse the judgment and remand the case the Court reverses the trial court's judgment and for further proceedings. remands the case to the trial court for further proceedings. Michael Massengale The Court orders that the appellee, Nikki Greig, on Justice behalf of Texas Stars Cheerleading, pay all appellate costs. JUDGMENT The Court orders that this decision be certified below This case is an appeal from the final judgment signed by for observance. the trial court on June 14, 2010. After submitting the case on the appellate record and the arguments properly Judgment rendered August 9, 2012. raised by the parties, the Court holds that there was

Page 4 of 4 Page 1

2 of 2 DOCUMENTS

Analysis As of: Mar 30, 2015

KENNETH MCCLAIN, Appellant v. USA TODAY NEWSPAPER, USA TODAY INTERNET ARTICLE DIVISION, USA TODAY JOURNALIST KEVIN MCCOY, USA TODAY JOURNALIST PAUL OVERBERG, AND DALLAS COUNTY SHERIFF'S OFFICE, Appellees

No. 05-08-01123-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2010 Tex. App. LEXIS 4542

June 17, 2010, Opinion Filed

SUBSEQUENT HISTORY: Released for Publica- acknowledged he deliberately and intentionally failed to tion July 30, 2010. serve the notice of appeal on all parties to the judgment. Rehearing denied by McClain v. USA Today Newspaper, It was also clear that he did not intend his May 1st notice 2010 Tex. App. LEXIS 6117 (Tex. App. Dallas, July 19, of appeal to be a bona fide attempt to invoke the court's 2010) jurisdiction. The motion to vacate judgment had the same effect as a motion to modify the judgment and was suffi- PRIOR HISTORY: [*1] cient to extend the time within which to perfect an appeal On Appeal from the County Court at Law No. 4, Dal- under Tex. R. App. P. 26.1. Therefore, the notice of ap- las County, Texas. Trial Court Cause No. CC08-01140D. peal was due by July 14, 2008; the litigant's second no- tice of appeal filed on August 7, 2008 was untimely. CASE SUMMARY: Although the litigant mistakenly believed he had 90 days from the date on which he filed his motion to vacate judgment to perfect his appeal, the time should have PROCEDURAL POSTURE: Appellant, a pro se liti- been calculated from the date the judgment was signed gant, sought review of a decision of the County Court at under rule 26.1(a)(2). Law No. 4, Dallas County, Texas, granting summary judgment in favor of appellees, a newspaper and two OUTCOME: The court dismissed the appeal for want of journalists. Because the appeal appeared to be untimely, jurisdiction. the court directed the parties to file letter briefs address- ing the court's jurisdiction over the appeal. LexisNexis(R) Headnotes

OVERVIEW: The litigant timely filed a notice of ap- peal with the trial court only. He failed to serve a copy of the notice of appeal on the other parties to the trial court's Civil Procedure > Appeals > Reviewability > Notice of judgment, and failed to file a copy with the appellate Appeal court clerk, as required by Tex. R. App. P. 9.5, 25.1(e). [HN1] Tex. R. App. P. 37.1 requires an appellate clerk to Twelve days later, he filed a motion to strike his notice notify the parties of a defect in a notice of appeal so it of appeal and a motion to vacate judgment. He can be remedied. Page 2 2010 Tex. App. LEXIS 4542, *

JUDGES: Before Justices Richter, Lang-Miers, and Civil Procedure > Appeals > Reviewability > Time Lim- Murphy. Opinion By Justice Richter. itations [HN2] Absent a filing that extends the deadline, a party OPINION BY: MARTIN RICHTER has thirty days from the judgment is signed to file a no- tice of appeal. Tex. R. App. P. 26.1. If a party timely files OPINION a motion to modify the judgment, notice of appeal must be filed within ninety days after the judgment is signed. MEMORANDUM OPINION Tex. R. App. P. 26.1(a)(2). Opinion By Justice Richter This is an attempted appeal from the trial court's or- Civil Procedure > Appeals > Reviewability > Time Lim- der granting summary judgment in favor of USA Today itations Newpaper, USA Today Internet Article Division, USA [HN3] The Rules of Appellate Procedure calculate the Today journalist Kevin McCoy, and USA Today jour- period within which one must perfect an appeal from the nalist Paul Overberg (collectively, USA Today). Pro se time the judgment is signed, not from the filing of a appellant Kenneth McClain timely filed a notice of ap- pleading. peal on May 1, 2008, with the trial court only. He failed to serve a copy of the notice of appeal on the other par- ties to the trial court's judgment, and failed to file a copy Civil Procedure > Appeals > Reviewability > Time Lim- with the appellate court clerk, as required by the rules of itations appellate procedure. See TEX. R. APP. P. 9.5, 25.1(e). [HN4] The rules of appellate procedure provide for addi- Twelve days later, on May 12, 2008, McClain filed a tional time within which to file a notice of appeal. Tex. motion to strike his notice of appeal, a motion to vacate R. App. P. 26.3. judgment, and a motion for findings of fact and conclu- sions of law. In his motion to strike notice of appeal, McClain stated, "[i]n anticipation of filing my motion to Civil Procedure > Appeals > Reviewability > Time Lim- vacate judgment and motion for finding of fact and con- itations clusions of law, and motion to [*2] strike notice of ap- [HN5] A notice of appeal filed outside the fifteen-day peal, I did not serve defendants yet under T.R.A.P. period provided by Tex. R. App. P. 26.3 will not invoke 25.1(e). I will re-file my notice of appeal within 90 days the appellate court's jurisdiction. after my motion to vacate judgment is filed." McClain did not intend for his May 1, 2008 notice of appeal to invoke the jurisdiction of this Court. McClain acknowl- Civil Procedure > Parties > Self-Representation > edged he deliberately and intentionally failed to comply Pleading Standards with the rules of appellate procedure by not serving a [HN6] Although we construe pro se pleadings and briefs copy of the May 1, 2008 notice of appeal on all parties to liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with the judgment. applicable laws and rules of procedure. To do otherwise Furthermore, the May 1, 2008 notice of appeal was would give a pro se litigant an unfair advantage over a defective. See TEX. R. APP. P. 9.5, 25.1(e). [HN1] Rule litigant who is represented by counsel. 37.1 of the rules of appellate procedure requires an ap- pellate clerk to notify the parties of a defect in a notice of appeal so it can be remedied. See TEX. R. APP. P. 37.1; Civil Procedure > Appeals > Reviewability > Time Lim- see Feist v. Berg, No. 12-04-00004-CV, 2004 Tex. App. itations LEXIS 1260, 2004 WL 252785, at *1 (Tex. App.--Tyler [HN7] The timely filing of a notice of appeal is jurisdic- Feb. 11, 2004, pet. denied) (mem. op.). However, in this tional. Tex. R. App. P. 25.1(b). case, the appellate clerk did not have the opportunity to notify McClain of the defect in his notice of appeal be- COUNSEL: For APPELLANT: Kenneth McClain, cause a copy of the notice was not filed with the appel- PINE KNOT, KY. late court clerk. Additionally, it is clear from McClain's motion to strike the notice of appeal that he was aware of For APPELLEE: Greg Long, Assistant District Attorney, the defect in his notice of [*3] appeal, had an oppor- Dallas, TX; Laura Lee Prather, Catherine Lewis Robb, tunity to remedy the defect, and deliberately elected not Sedgwick, Detert, Moran & Arnold, LLP, Austin, TX. to do so. It is also clear from his motion to strike appeal Page 3 2010 Tex. App. LEXIS 4542, *

that McClain did not intend his May 1st notice of appeal [HN3] ("The Rules of Appellate Procedure calculate the to be a bona fide attempt to invoke the appellate court's period within which one must perfect [*5] an appeal jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, from the time the judgment is signed, not from the filing 616 (Tex. 1997). of a pleading.") (emphasis in original). [HN2] Absent a filing that extends the deadline, a [HN4] The rules of appellate procedure provide for party has thirty days from the judgment is signed to file a additional time within which to file a notice of appeal. notice of appeal. TEX. R. APP. P. 26.1. If a party timely See TEX. R. APP. P. 26.3. However, McClain cannot files a motion to modify the judgment, notice of appeal obtain the benefit of rule 26.3 because he did not file his must be filed within ninety days after the judgment is notice of appeal within fifteen days of the deadline for signed. TEX. R. APP. P. 26.1(a)(2). McClain's motion to filing the notice of appeal. Id.; see also Verburgt, 959 vacate judgment had the same effect as a motion to mod- S.W.2d at 617 (holding motion for extension is implied if ify the judgment and was sufficient to extend the time perfecting instrument is filed within fifteen days of its within which to perfect an appeal. See Ramirez v. Wil- due date). [HN5] A notice of appeal filed outside the liams Bros. Constr. Co., Inc., 870 S.W.2d 551, 552 (Tex. fifteen-day period provided by rule 26.3 will not invoke App.--Houston [1st Dist.] 1993, no pet.) (any the appellate court's jurisdiction. Id.; see also Owusu v. post-judgment motion which, if granted, results in a sub- Citibank (South Dakota), N.A., No. 05-09-00834-CV, stantive change in the original judgment extends the time 2009 Tex. App. LEXIS 7376, 2009 WL 3003187, at *1 for perfecting an appeal). Accordingly, McClain's notice (Tex.App.--Dallas Sept. 22, 2009, no pet.) (mem. op.). of appeal was due by July 14, 2008. [HN6] Although we construe pro se pleadings and McClain filed his second notice of appeal on August briefs liberally, we hold pro se litigants to the same 7, 2008. Again, McClain [*4] filed his notice with the standards as licensed attorneys and require them to com- trial court only. There is nothing in the record to indicate ply with applicable laws and rules of procedure. Pena v. McClain served a copy of the second notice of appeal on McDowell, 201 S.W.3d 665, 667 (Tex. 2006); Mansfield the other parties to the trial court's judgment. He did not State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); file a request for an extension of time within which to Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. file his notice of appeal. Because the August 7, 2008 App.--Dallas 2009, pet. denied). [*6] To do otherwise notice of appeal appeared to be untimely as to the April would give a pro se litigant an unfair advantage over a 14, 2008 judgment and May 12, 2008 motion to vacate, litigant who is represented by counsel. Cooper v. Circle we directed the parties to file letter briefs addressing our Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 jurisdiction over the appeal. (Tex. App.--Dallas 2008, no pet.). In his letter brief, McClain argued that his May 1, [HN7] The timely filing of a notice of appeal is ju- 2008 notice of appeal was valid, timely, and sufficient to risdictional. TEX. R. APP. P. 25.1(b); see Owusu, 2009 perfect his appeal. McClain also argued that his August Tex. App. LEXIS 7376, 2009 WL 3003187, at *1. Be- 7, 2008 notice of appeal was timely filed because the cause McClain's first notice of appeal was defective and motions he filed extended his deadline for filing by his second notice of appeal was untimely, we do not have ninety days. The record reflects McClain mistakenly jurisdiction over this appeal. believed he had ninety days from the date on which he We dismiss this appeal for want of jurisdiction. filed his motion to vacate judgment to perfect his appeal, instead of ninety days from the date the judgment was MARTIN RICHTER signed. See TEX. R. APP. P. 26.1(a)(2); see also Farmer JUSTICE v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) | | Neutral As of: April 7, 2015 5:56 PM EDT

McDonald v. Newmyer Court of Appeals of Texas, First District, Houston April 6, 1989 No. 01-88-00188-CV

Reporter 775 S.W.2d 652; 1989 Tex. App. LEXIS 765

FLOYD E. MCDONALD, Appellant v. YVONNE Outcome NEWMYER, Appellee The court dismissed appellant movant's appeal on its Subsequent History: [**1] Rehearing Denied own motion for want of jurisdiction because the appellate September 14, 1989. record did not affirmatively reflect appellant's timely perfection of his appeal. Prior History: On Appeal from the 335th District Court Burleson County, Texas, Trial Court. LexisNexis® Headnotes Core Terms Civil Procedure > Appeals > Appellate Jurisdiction > General Overview cost bond, days, motion for a new trial, perfecting an appeal, perfect, appellate record, bankruptcy court, trial Civil Procedure > Appeals > Record on Appeal court, trial judge, dism'd HN1 The appellate record must affirmatively reflect a reviewing court's jurisdiction. Case Summary Civil Procedure > Appeals > Reviewability of Lower Court Procedural Posture Decisions > Timing of Appeals

Appellant movant sought review of a judgment from the HN2 A reviewing court has no authority to entertain an 335th District Court, Burleson County (Texas), and filed appeal where the appellant does not timely perfect the his cost bond for appeal 346 days after the trial court appeal. signed the final judgment. Civil Procedure > Judgments > Relief From Judgments > General Overview Overview Civil Procedure > Judgments > Relief From Judgments > Appellant movant filed a motion for a new trial following Motions for New Trials the trial court's final judgment. While the motion was pending, appellee debtor filed bankruptcy proceedings Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Timing of Appeals which stayed the district court action, however, the record did not indicate the date on which appellee filed HN3 An appellant perfects the appeal by filing a cost for bankruptcy protection. The bankruptcy court granted bond, deposit of cash, or affidavit of inability to pay relief from stay, and the court held that even if it assumed within 90 days from the date of judgment when a motion that the stay was in effect from the date the judgment for new trial is filed. Tex. R. App. P. 40(a), 41(a)(1). was signed until the date the bankruptcy court granted relief from stay, appellant did not timely perfect his Civil Procedure > Appeals > Reviewability of Lower Court appeal because his cost bond was filed 114 days after Decisions > Timing of Appeals the bankruptcy lifted the stay and 346 days after the trial judge signed the judgment. The court on its own motion, HN4 The filing of the cost bond is a necessary and dismissed the appeal for want of jurisdiction. jurisdictional step in perfecting an appeal. 775 S.W.2d 652, *653; 1989 Tex. App. LEXIS 765, **1

Counsel: Preston C. Goodwin, Hagerman & Seureau, February 26, 1987. Under ordinary circumstances, this Spring, for appellant. motion would have been overruled by operation of law on April 26, 1987. Tex. R. Civ. P. 329b(c). Appellant Joan E. Scroggins, Caldwell, for appellee. would have had to perfect his appeal by May 11, 1987, 90 days after the trial judge signed the judgment. Tex. Judges: Warren, Dunn and Hughes, JJ. R. App. P. 41(a)(1). Appellant did not file his cost bond until January 22, 1988, 346 days after the trial judge Opinion by: PER CURIAM signed the judgment.

The record before us does indicate that, while the Opinion motion for new trial was pending, appellee Yvonne Newmyer filed bankruptcy proceedings, which stayed [*653] This Court, on its own motion, dismisses this the district court action. See 11 U.S.C. § 362 (1982). appeal for want of jurisdiction. On September 30, 1987, the bankruptcy court granted HN1 The appellate record must affirmatively reflect our relief from the stay. (Appellant filed a certified copy of jurisdiction. University Interscholastic League v. Payne, this order with the trial court.) There is nothing in the 635 S.W.2d 754, 756 (Tex.App. -- Amarillo 1982, writ record that indicates when appellee filed for bankruptcy dism'd); Stegall v. Cameron, 601 S.W.2d 771, 773 protection or how long the stay tolled the appellate (Tex.Civ.App. -- Dallas 1980, writ dism'd). HN2 We have timetable. Even if we assume, however, that the stay no authority to entertain an appeal where the appellant was in effect from the date the judgment was signed does not timely perfect the appeal. Wadkins v. until September 30, 1987, appellant [**3] did not timely Diversified Contractors, 714 S.W.2d 136, 137 (Tex. perfect his appeal. Appellant filed his cost bond 114 App. -- Houston [1st Dist.] 1986, no writ). HN3 An days after the bankruptcy court lifted the stay. That filing appellant perfects the appeal by filing a cost bond, was not timely. deposit of cash, or affidavit of inability to pay within 90 days from the date of judgment when a motion for new The appellate record does not affirmatively reflect trial is filed. Tex. R. App. P. 40(a), 41(a)(1). HN4 The appellant's timely perfection of his appeal.. filing of the cost bond is a necessary and jurisdictional step in perfecting an appeal. Davies [**2] v. Massey, We dismiss the appeal. 561 S.W.2d 799, 801 (Tex.1978). Panel consists of Justice Warren, Dunn, and Hughes.

Here, the trial court signed its final judgment on February Judgment rendered and opinion delivered April 6, 1989 10, 1987. Appellant filed his motion for new trial on

Page 2 of 2 Page 1

Caution As of: Mar 30, 2015

Memorial Hospital Of Galveston County, et al., Petitioners, v. Zelma Lee Gillis, Re- spondent

No. C-6709

SUPREME COURT OF TEXAS

741 S.W.2d 364; 1987 Tex. LEXIS 391; 31 Tex. Sup. J. 77

November 18, 1987, Decided

SUBSEQUENT HISTORY: [**1] court grants Memorial Hospital's motion for rehearing, and without hearing oral argument reverses the judgment PRIOR HISTORY: FROM GALVESTON of the court of appeals and vacates [**2] the judgment COUNTY, FIRST DISTRICT. of the trial court. The opinion of the court of appeals conflicts with TEX. R. CIV. P. 306(a). The procedure for obtaining relief from a dismissal COUNSEL: Petitioner: Mr. Scott Lyford, Office of the for want of prosecution is set forth in TEX. R. CIV. P. Atty., Galveston Co. 165a. In pertinent part, Rule 165a states: Respondent: Mr. Scott A. Sanes, Hardy, Milutin & [a] motion to reinstate shall set forth Johns. the grounds therefor and be verified by the movant or his attorney. It shall be filed OPINION BY: PER CURIAM with the clerk within 30 days after the or- der of dismissal is signed or within the OPINION period provided by Rule 306a. [*365] Forty days after the trial court had dis- missed her worker's compensation suit for want of pros- ecution, Zelma Lee Gillis filed an unverified motion to It is undisputed that Gillis' motion was not filed within reinstate. Gillis' motion stated the nature of her action, thirty days of the signing of the order dismissing her ac- explained the cause for the delay in prosecution, and tion. The question is whether it was filed within the time claimed that her suit had merit. Following a hearing on period provided by TEX. R. CIV. P. 306a. Rule 306a her motion, the trial court reinstated her action. The rec- provides that a party who did not have notice or ord does not reflect what transpired at that hearing, and knowledge of a judgment or order may be afforded thirty the order reinstating the cause does not recite the trial days from the date he acquired such notice or knowledge court's findings or the grounds for reinstatement. The in order to invoke the trial court's plenary jurisdiction, action later went to trial, where Gillis had judgment on a provided that he can: jury verdict awarding some $ 52,000 for her injuries. The . . . prove in the trial court, on sworn court of appeals affirmed. 731 S.W.2d 692. On Sep- motion and notice, the date on which the tember 19, 1987, we refused Memorial Hospital's appli- party or his attorney first either received a cation for writ of error, finding no reversible error. The notice of the judgment or acquired actual Page 2 741 S.W.2d 364, *; 1987 Tex. LEXIS 391, **; 31 Tex. Sup. J. 77

knowledge of the signing and that this reinstatement hearing. Gillis supplied the court of ap- [**3] date was more than twenty days peals with a supplemental transcript, which contained a after the judgment was signed. copy of the [**4] postcard notices sent by the district clerk to the attorneys for the parties in order to notify them of the dismissal. See TEX. R. CIV. P. 306a (3). The TEX. R. CIV. P. 306a (5). Compliance with the time pe- postcards indicate the date of dismissal and the date upon riods prescribed by these rules is a jurisdictional prereq- which the postcards were sent. However, there is nothing uisite. Unless a party establishes in the manner pre- to indicate that the trial court considered these postcard scribed by the rule that he had no notice or knowledge of notices at the hearing, nor is there anything in the record the judgment, the general rule prevails: a trial court's to negate the possibility that Gillis or her attorney ac- power to reinstate a cause after dismissal expires thirty quired actual knowledge of the dismissal within twenty days after the order of dismissal is signed. Harris days of its signing. Rule 306a plainly requires that this County v. Miller, 576 S.W.2d 808 (Tex. 1979). proof be made in the trial court, not the court of appeals. Since Gillis did not establish the applicability of Rule There is nothing in the record to indicate that Gillis 306a (4) in the trial court in the manner prescribed by the sustained her burden of proving to the trial court that she rule, the trial court was without jurisdiction to reinstate had no notice or knowledge of the order dismissing her her cause upon a motion filed forty days after dismissal. cause within twenty days of its rendition. In her motion The subsequent judgment in Gillis' favor was therefore a for reinstatement, Gillis did not allege that she had no nullity, and the court of appeals erred in affirming it. notice or [*366] knowledge of the order. The order granting her motion for reinstatement does not recite that The judgment of the court of appeals is reversed, Gillis had no notice or knowledge of the dismissal. No and the judgment of the trial court in Gillis' favor is va- statement of facts has been brought before us that would cated. The trial court's order dismissing Gillis' cause for indicate that Gillis sustained her burden of proof at the want of prosecution is reinstated. Page 1

Caution As of: Mar 30, 2015

OSCAR ORTIZ, Appellant, v. AVANTE VILLA AT CORPUS CHRISTI, INC., Appellee.

NUMBER 13-96-030-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI

926 S.W.2d 608; 1996 Tex. App. LEXIS 3302

June 13, 1996, delivered June 13, 1996, filed

SUBSEQUENT HISTORY: [**1] Released for judgment, and plaintiff appeal. Upon our examination of Publication July 18, 1996. Rehearing Overruled August the transcript we questioned the finality of the initial 29, 1996. default judgment, which, if it were final, would preclude our jurisdiction over the later summary judgment. The PRIOR HISTORY: On appeal from the 319th Dis- parties submitted briefs on the issue. We hold the default trict Court of Nueces County, Texas. judgment was a final appealable judgment and dismiss this attempted appeal from the summary judgment [**2] for want of jurisdiction. COUNSEL: Rene Rodriguez, 433 S. Tancahua, Corpus The trial court signed a "FINAL JUDGMENT BY Christi, TX 78401. DEFAULT" in favor of appellant on January 9, 1995, and appellee received notice within 20 days. See TEX. R. Carlos Villarreal, 1100 First City Tower II, 555 North CIV. P. 306a(4). Appellee filed its motion for new trial Carancahua, Corpus Christi, TX 78478. February 21 -- 43 days after the default judgment was signed. Rule 329b provides that a motion for new trial JUDGES: Before Chief Justice Seerden, and Justices must be filed within 30 days after the signing of the Dorsey and Chavez judgment, and the court has plenary power to grant a new trial for only 30 days after the judgment has been signed OPINION if no motion for new trial is filed. See id. 329b(a), (d). There can be only one final judgment in a cause. Id. 301. [*610] OPINION If the default judgment is final, any later action by the Opinion Per Curiam trial court is void, including the subsequent summary judgment. The question presented is whether a default judg- ment is final. Oscar Ortiz, individually and on behalf of Appellee contends the default judgment was not fi- the estate of Feliciana Ortiz, and three siblings sued nal for several reasons, concluding that the trial court had Avante Villa for the death of their mother while she was jurisdiction to grant its motion for new trial although in the defendant's care. A default judgment was granted filed and acted on beyond the 30 day limit. We will ad- the plaintiffs but, upon motion of the defendant, a new dress each of appellee's arguments about why the default trial was granted. The defendant later took a summary judgment is not final. Page 2 926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, **

judgment provides, "Plaintiffs are allowed such writs and ALLEGED INADEQUACY OF JUDGMENT'S process as may be necessary in the enforcement and col- "MOTHER HUBBARD" CLAUSE lection of this judgment," and is entitled, "FINAL JUDGMENT BY DEFAULT." Both of these provisions A judgment must dispose of all parties and all issues indicate the judgment was intended to be a final judg- before the trial [**3] court in order for it to be consid- ment. See Continental Airlines, 39 Tex. Sup. Ct. J. at ered final and appealable. Park Place Hosp. v. Estate of 469. Milo, 909 S.W.2d 508, 510 (Tex. 1995). When a judg- ment is entered at the conclusion of a trial on the merits, The default judgment here was granted with the in- "it will be presumed for appeal purposes that the court tent to dispose of all parties and all issues, and the judg- intended, and did, dispose of all parties legally before it ment disposed of all parties and claims raised by the and of all issues made by the pleadings" and to be final. pleadings. It does not fail to be a final judgment because Northeast Independent School District v. Aldridge, 400 the Mother Hubbard clause is deficient. S.W.2d 893, 898 (Tex. 1966). However, a default judg- ment is not presumed to be a final judgment. Houston ALLEGED AMBIGUITY RISING FROM UNASCER- Health Clubs v. First Court of Appeals, 722 S.W.2d 692, TAINABLE AWARD 693 (Tex. 1986). Instead we must consider the language Judgments must be sufficiently certain so a ministe- of the judgment, the record as a whole, and any relevant rial officer may determine the parties' rights under the conduct of the parties to determine whether the trial court judgment in order to carry it into execution. Stewart v. intended to dispose of all [*611] parties and issues. USA Custom Paint & Body Shop, 870 S.W.2d 18, 20 Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 39 (Tex. 1994). If the amount awarded by the judgment Tex. Sup. J. 468, 469 (1996). cannot be determined, the judgment is interlocutory. H.E. The five plaintiffs in this case sued the defendant for Butt Grocery Co. v. Bay, 808 S.W.2d 678, 680 (Tex. damages for the wrongful death of their mother. Under App.--Corpus Christ [**6] 1991, writ denied). Appel- the survival statute, they also sought money damages that lee's next two complaints attack the finality of the default the mother would have been entitled to had she lived. judgment on grounds that it is ambiguous and awards an There was only one defendant. The default judgment unascertainable amount. [**4] awarded money damages to the plaintiffs. It dis- posed of all claims the plaintiffs were making on the sole Award of Prejudgment Interest defendant. There were no issues raised in the pleadings Appellee contends that the "FINAL JUDGMENT that were not disposed of in the judgment; the judgment BY DEFAULT" is not final because it does not state how gave full and complete relief for all plaintiffs against all prejudgment interest should be calculated. However, this defendants. is a wrongful death suit and the method of calculating Appellee argues the Mother Hubbard clause in the prejudgment is established by statute. See TEX. REV. default judgment under review is deficient because it CIV. STAT. ANN. art. 5069-1.05 § 6(a) (Vernon Supp. recites, "All relief not specifically requested 1 herein is 1996). When the rate and means of calculating interest is hereby denied." However, a Mother Hubbard clause be- a matter of law, it need not be stated in the judgment. comes critical when the specific relief awarded in the We have held that a judgment is interlocutory if it judgment is less than that sought in the pleadings, and awards prejudgment interest but fails to specify which of the "catch all" clause sweeps out those claims that were two distinct but potentially applicable methods should be not specifically reached. The Mother Hubbard clause is used to calculate the interest. H.E Butt Grocery, 808 not essential in the default judgment under consideration S.W.2d at 680-81. However, we specifically noted that because all claims for relief are addressed in that judg- the suit did not involve a wrongful death claim. Id. at ment. 680. The distinction between a suit based on a contract and a wrongful death suit is significant because there is 1 We emphasize the word "requested" to show only one method of calculating prejudgment interest in a how this clause differs from a typical Mother wrongful death case. See id. at 681. Hubbard clause. Cf. Mafrige v. Ross, 866 S.W.2d 590, 590 n. 1 (Tex. 1993) ("A Mother Amount [**7] of Award to Each Party Hubbard clause generally recites that all relief not Appellee further argues that the default judgment is expressly granted is denied.") not final because it does not specifically allocate how the [**5] We must consider the judgment in its en- total judgment is [*612] to be divided among the ap- tirety and look beyond the putative Mother Hubbard pellants. Appellee primarily supports its argument with clause. Martinez, 875 S.W.2d at 313-14. The default Mullen v. Roberts, 423 S.W.2d 576 (Tex. 1968). Page 3 926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, **

The Mullen case involved plaintiffs requesting spe- However, the citation identifies the document served as cific money damages in differing amounts under separate "the PLAINTIFFS' ORIGINAL PETITION," which is causes of action based on dissimilar theories of recovery. exactly how the petition is entitled. Later in the citation, Mullen, 423 S.W.2d at 578 (some plaintiffs sued for the petition is abbreviated as "PLTFS' ORIGINAL PET." breach of contract but others sued for fraud). The Mullen The return of service refers to the petition as "the Petition court found the aggregate award at variance with the attached" to the citation. These descriptions of the doc- plaintiffs' petition because they pleaded separate and ument served meet the requirements of Rule 107 Id.; see distinct causes of action seeking damages appropriate to also Herbert v. Greater Gulf Coast Enters., Inc., 915 their particular claims. Id. at 578-79. S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995, n.w.h.); Woodall v. Lansford, 254 S.W.2d 540, 543 (Tex. In the present case, appellants are jointly suing over Civ. App--Fort Worth 1953, no writ). the death of their mother. The more analogous case is Lewis v. Hall, 271 S.W.2d 447 (Tex. Civ. App.--Fort Finally, appellee contends that it is misnamed in the Worth 1954, writ ref'd n.r.e.). The Lewis case involved a citation and return of service. However, the citation iden- summary judgment awarding an aggregate sum to the tifies appellee as "AVANTE VILLA AT CORPUS legatees of Lena Hall. As in our case, the appellants in CHRISTI, INC." Appellee is later identified as Lewis complained that "the judgment does not apportion "AVANTE VILLA @ CORPUS CHRISTI, [**10] [**8] any particular amounts to the individual appel- INC." in the style of the case and as "AVANTE VILLA lees." The Lewis court held, "It is of no concern of ap- AT CORPUS CHRISTI" in the return Of service. Ap- pellant how the various appellees divide up the money, pellee contends that this is improper because of the or if they should get into litigation among themselves omission of the accent from "Avante," because of the over such division." Id. at 451. We agree. The "FINAL substitution of the symbol "@" for the word "at," and JUDGMENT BY DEFAULT" resolves appellee's liabil- because of the omission of "Inc." We hold that these de- ity on the appellants' joint claims. How much each plain- fects do not invalidate service. tiff receives in what capacity may be resolved by inter- A default judgment cannot withstand attack unless pleader or in another forum; it should not interfere with the record affirmatively" [*613] shows strict compli- the enforceability of the judgment. ance with rules for service of process. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Howev- ALLEGED IMPROPER SERVICE er, strict compliance does not require "obeisance to the Finally, appellee attacks the default judgment by minutest detail." Herbert, 915 S.W.2d at 871. Errors such claiming that appellants' service of process was inade- as mistaken capitalization in the defendant's name and quate. Appellee argues that the return of service does not spelling errors too minor to raise any doubt that the cor- identify the method of service or the document served, rect person was served are insufficient to invalidate ser- does not state how many copies of the petition were vice. See McDonough v. Williamson, 742 S.W.2d 737, served, and does not properly name appellee. 740 (Tex. App.--Houston [14th Dist.] 1987, no writ); Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. The return of service recites that it was executed "by App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). The delivering to AVANTE VILLA AT CORPUS CHRIST omission of the accent mark and the substitution of the BY DELIVERING TO PRENTICE HALL 2 BY DE- symbol "@" for the word "at" are akin to the errors that LIVERING TO PAT WIGGINS OPERATIONS SPE- [**11] do not invalidate service. Moreover, omission of CIALIST." The return of service states the manner of a corporate designation from the return of service does service as required by Rule 107. See TEX. R. CIV. P. not invalidate service when the citation and attached pe- 107. tition both fully name the defendant with the proper des- ignation. See Stephenson v. Corporate Servs., Inc., 650 2 Appellee has not complained before this S.W.2d 181, 183 (Tex. App--Tyler 1983, writ ref'd n.r.e.). court or before the trial court that Prentice Hall We hold that service is facially valid. was not its registered agent as the citation and pe- tition both suggest. CONCLUSION [**9] Appellee next claims the citation is defec- We hold that the "FINAL JUDGMENT BY DE- tive because it does not state how many copies of the FAULT" was the final judgment in this case. Without a petition were served with the citation. We find no such timely motion for new trial the trial court had only 30 requirement that the return of service state how many days from the date the judgment was signed to grant a copies of the petition accompany the citation. new trial, and the motion for new trial must be filed Next, appellee argues that the return of service does within 30 days of the signing of the judgment. TEX. R. not "properly state the name of the item that was served." CIV. P. 306a(4), 329b(d). Once the 30 days had run, Page 4 926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, **

appellee's remedies against the default judgment were Because there can be [**12] only one final judg- restricted to a writ of error filed in this court or a bill of ment in a cause, and the default judgment was final, we review filed in the trial court. McEwen v. Harrison, 162 dismiss this appeal from the purported summary judg- Tex. 125, 345 S.W.2d 706, 710-11 (Tex. 1961). Because ment for want of jurisdiction. we cannot construe the motion for new trial as a bill of review, we hold that the trial court had no authority to set aside the default judgment or to grant the subsequent Opinion delivered and filed on this summary judgment. the 13th day of June, 1996. Page 1

5 of 7 DOCUMENTS

Questioned As of: Mar 30, 2015

Payne & Keller Company, Appellant, v. Peggy A. Word, Appellee

No. A14-86-712-CV

COURT OF APPEALS OF TEXAS, Fourteenth District, Houston

732 S.W.2d 38; 1987 Tex. App. LEXIS 7231

May 7, 1987, Decided May 7, 1987, Filed

PRIOR HISTORY: [**1] Appeal from the by the pleadings. The court modified the judgment by 295th District Court of Harris County, Cause No. excluding $ 36,630.25 awarded as prejudgment interest. 85-33051. The court affirmed the trial court's judgment.

CASE SUMMARY: OUTCOME: The court affirmed the default judgment entered against appellant employer in an action regarding an automobile collision with appellant's employee be- PROCEDURAL POSTURE: Appellant employer cause the service of process was not defective, and ap- sought review of a judgment from the 295th District pellant did not timely file its motion for new trial. Court of Harris County (Texas), which entered a default judgment against appellant in an action regarding an au- LexisNexis(R) Headnotes tomobile collision with appellant's employee.

OVERVIEW: The trial court entered a default judgment against appellant employer in an action regarding an au- Civil Procedure > Pleading & Practice > Service of tomobile collision with appellant's employee. Appellant Process > General Overview challenged the default judgment on several points of er- [HN1] In the absence of statutory direction as to the ror. On appeal, the court held that the default judgment method of signing, a constable's printed signature strictly was not void because the constable's printed signature on complies with Tex. R. Civ. P. 107. the citation complied with Tex. R. Civ. P. 107. Next, the court held that the constable's minor misspelling of reg- istered agent's name was not a sufficient indication that Civil Procedure > Pleading & Practice > Service of the wrong person was served with process. The court Process > General Overview found the trial court properly denied appellant's motion [HN2] An affirmative showing of compliance with Tex. for new trial because it was not timely filed. The court R. Civ. P. 107 is not defeated merely because a constable found appellee's evidence that supported her claim for fails to cross out the word defendant on a preprinted unliquidated damages was presumably properly authen- form. ticated and admissible because appellant did not demon- strate to the contrary. The court found that the trial court's award of prejudgment interest was not supported Page 2 732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, **

Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials JUDGES: Chief Justice J. Curtiss Brown and Justices [HN3] Tex. R. Civ. P. 329b provides that a motion for Robertson and Cannon. new trial must be filed within thirty days after a judg- ment is signed. OPINION BY: CANNON

OPINION Civil Procedure > Pleading & Practice > Motion Prac- [*39] This is an appeal by writ of error from a de- tice > General Overview fault judgment. In five points of error, appellant com- Civil Procedure > Judgments > Relief From Judgment plains that: (1) the return of citation is defective; (2) the > Motions for New Trials damages awarded by the judgment are not supported by [HN4] Tex. R. Civ. P. 306a(4) provides that if a party the pleadings, nor the evidence; and (3) the motion for does not receive notice of a judgment within 20 days of new trial was erroneously denied. We agree that some of the signing thereof, then the time periods controlling the the damages are unsupported by the pleadings, and, ac- filing of a motion for new trial shall begin on the date cordingly, modify the judgment of the court below and that the party or his attorney receives the notice or actual affirm it as modified. knowledge of the signing. The cause of action arose from an automobile colli- sion between appellee, Peggy Word, and Richard H. Civil Procedure > Judgments > Relief From Judgment Jones (Jones). Appellee filed suit against appellant, > Motions for New Trials Payne & Keller Company, on June 4, 1985, alleging that [HN5] In order to establish the applicability of Tex. R. her car was struck from the rear by Jones's vehicle. Fur- Civ. P. 306a(4), appellant is required to prove in the trial ther, she alleged, at the time of the collision, Jones was court, on sworn motion and notice, the date on which the in the course and scope of his employment for appellant. party or his attorney first either receives the notice of the Appellee pleaded as damages her medical expenses; past judgment or acquires actual knowledge of the signing, and future [**2] lost wages; past and future physical and that this date is more than 20 days after the judgment pain and mental anguish; court costs; and interest on the is signed. Tex. R. Civ. P. 306a(5). judgment. The petition was served on appellant's registered agent, Philippe Petitfrere, on June 19, 1985. Appellant, Evidence > Authentication > Self-Authentication however, did not answer. On January 10, 1986, appellee [HN6] Tex. R. Evid. 902(10)(a) provides that records accompanied by an affidavit are admissible subject to filed a supplemental petition asking for prejudgment certain conditions, which are that the records and affida- interest. This supplemental petition was not served on appellant. vit be filed with the clerk at least 14 days prior to the date trial commences, and that the notice of the filing be On January 24, 1986, a default judgment was en- served on the opposing party. This rule, however, does tered against appellant for $ 285,630.25 plus post judg- not preclude authentication of evidence by other means ment interest and court costs. The judgment recited that that do not have the 14-day notice requirement. Tex. R. the cause of action was unliquidated and that appellee Evid. 901. was entitled to damages upon [*40] good and suffi- cient evidence presented to the court. Included in the judgment was the sum of $ 35,630.25 for prejudgment Civil Procedure > Pleading & Practice > Service of interest. Appellant filed an untimely motion for new trial Process > General Overview on March 27, 1986, which was not granted. Appellant's Civil Procedure > Remedies > Judgment Interest > appeal by writ of error was subsequently filed. Prejudgment Interest [HN7] New citation is necessary for a party who has not In point of error one, appellant maintains that the appeared when plaintiff by an amended petition seeks a default judgment is void because the constable's return more onerous judgment than prayed for in the original fails to state the name of the constable who executed the pleading. service of citation as required by Tex. R. Civ. P. 107. In support of this point, appellant relies on our case, [**3] COUNSEL: Rodney P. Bridgers, Jr., for Plaintiff or Houston Pipe Coating Co., Inc. v. Houston Freight- Petitioner. ways, Inc., 679 S.W.2d 42 (Tex. App. -- Houston [14th Dist.] 1984, writ ref'd n.r.e.), wherein we stated that Rule Michael C. Neel, For Defendant or Respondent. 107 requires that the return must be signed by the sheriff or constable or by a deputy who indicates for whom he Page 3 732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, **

or she acted as deputy. We acknowledge that Houston petition alleged that the registered agent was "Henry Pipe Coating Co., Inc. is the applicable rule of law in Bunting, Jr." Thus, the supreme court held, the record this case. However, contrary to appellant's assertions, the did not reflect strict compliance with the rules of civil citation and officer's return satisfies the requirements of procedure relating to issuance, service, and return of ci- Houston Pipe Coating Co., Inc. tation. In Faver v. Robinson, 46 Tex. 204 (1876) (cited in Uvalde Country Club), a default judgment was reversed In Houston Pipe Coating Co., Inc., 679 S.W.2d at and remanded because suit was brought against John R. 45, we held: [HN1] "In the absence of statutory direction Favers, citation was issued to John R. Favers, and the as to the method of signing, Constable Maxon's printed return indicated that John R. Favers was served with the signature strictly complies with Rule 107." Here, the ci- petition. However, a default judgment was taken against tation and officer's return was marked with a file stamp John R. Faver. The court stated that a petition, citation, that stated: and service against Favers does not warrant a judgment by default against Faver. In Hendon v. Pugh, 46 Tex. 211 1985 Jun 19 PM 1:57 (1876) (cited in Uvalde Country Club), a default [**6] R.C. Martinez judgment was reversed and remanded because the return indicated that service was on [*41] "J.N. Hendon." Constable, Precinct No. 6Harris However, the defendant, against whom judgment was County, Texas rendered, was J.W. Hendon. The court held that the re- turn failed to show, with reasonable certainty, that the citation was served on the defendant in the suit. Clearly, Thus we find, in accordance with the holding of Houston in these cases, there is some uncertainty concerning Pipe Coating Co., Inc., that Constable Martinez's printed whether the person against whom judgment was taken, or signature strictly complies with Tex. R. Civ. P. 107. Point who was served as the registered agent, was the correct of error one is overruled. person. In point of error two, appellant complains [**4] Here, however, there is no uncertainty. The petition that the return fails to correctly set forth the manner of and citation both indicate that the registered agent was service as required by Tex. R. Civ. P. 107 because the "Philippe Petitfrere." The constable's minor misspelling return indicates that the wrong individual was served in of Petitfrere's name is not a sufficient indication that ser- the wrong capacity. Specifically, appellant asserts that vice was not had upon the correct person. We find that the petition and citation state that service is to be on the face of the record reflects strict compliance with Tex. Payne & Keller Company, by serving its registered R. Civ. P. 107. agent, Philippe Petitfrere (Petitfrere). However, the of- ficer's return states that service was executed "by deliv- Further, we find no merit in appellant's argument ering to Philipee Petitfreere defendant, . . . ." Thus, ap- that the return does not reflect that Petitfrere was served pellant argues, because the registered agent's name was in the correct capacity. In considering the record as a misspelled by the officer, and because the word "de- whole, including the original petition, the citation, and fendant," preprinted on the citation and return form, ap- the return, we find that service was had upon appellant pears after Petitfrere's name, strict compliance with Tex. by delivering citation and petition to its registered agent, R. Civ. P. 107 is not shown and the default judgment is [**7] Philippe Petitfrere. Moreover, [HN2] an affirm- void. ative showing of compliance with Tex. R. Civ. P. 107 will not be defeated merely because the constable failed In arguing for reversal on the basis of the mis- to cross out the word "defendant" on a preprinted form. spelling of Petitfrere's name by the deputy, appellant See Houston Pipe Coating Co., Inc., 679 S.W.2d at 44-45 relies on Uvalde Country Club v. Martin Linen Supply (court stated that it was unnecessary to cross out the al- Co., 690 S.W.2d 884 (Tex. 1985). We find, however, that ternate mode of service on the return). Point of error two the facts in Uvalde Country Club and the cases cited is overruled. therein are distinguishable from the facts before us. In Uvalde Country Club, citation was directed to Uvalde In point of error four, appellant maintains that it sat- Country Club by serving [**5] its registered agent, isfied the test in Craddock v. Sunshine Bus Lines, Inc., "Henry Bunting." The sheriff's return on the citation 134 Tex. 388, 133 S.W.2d 124 (1939) and thus the trial showed delivery to "Henry Bunting." However, the orig- court erred in failing to grant its motion for new trial. We inal petition alleged that the registered agent was "Henry note, however, that appellant's motion for new trial was Bunting, Jr." The Texas Supreme Court stated that the filed March 27, 1986, sixty-two days after the final record did not show that the person served with citation, judgment was signed. [HN3] Texas Rule of Civil Proce- "Henry Bunting," was authorized to receive service or dure 329b provides that a motion for new trial must be that he was connected with the appellant, because the Page 4 732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, **

filed within thirty days after the judgment is signed. pellee's affidavits from various health providers were not Thus, appellant's motion for new trial was filed untimely. properly authenticated and thus, were inadmissible. We note, however, that in its motion for new trial, [*42] Rule 902(10)(a) is an evidentiary rule appellant alleged that its motion was timely filed under providing for self-authentication of business records ac- the provisions of Tex. R. Civ. P. 306a(4). This court has companied by affidavit. [HN6] It provides that records previously considered this argument in an attempted di- accompanied by an affidavit are admissible subject to rect appeal filed by [**8] appellant and found it to be certain conditions, two of which are that the records and without merit. [HN4] Rule 306a(4) provides, in part, that affidavit be filed with the clerk at least fourteen days if a party has not received notice of a judgment within prior to the date trial commences and that notice of the twenty days of the signing thereof, then the time periods filing be served on the opposing party. This rule, howev- controlling the filing of a motion for new trial shall begin er, does not preclude authentication of evidence by other on the date that the party or his attorney received notice means, which do not have the fourteen-day notice re- or actual knowledge of the signing. [HN5] In order to quirement. [**10] See Tex. R. Evid. 901. Appellant establish the applicability of Tex. R. Civ. P. 306a(4), has failed to obtain a statement of facts from the hearing appellant was "required to prove in the trial court, on on damages. Nor has appellant demonstrated that he was sworn motion and notice, the date on which the party or precluded from obtaining statement of facts. Without a his attorney first either received a notice of the judgment statement of facts to review, we cannot determine or acquired actual knowledge of the signing and that this whether appellant's affidavits were authenticated by an- date was more than twenty days after the judgment was other means. Thus, we presume the authenticity of the signed." Tex. R. Civ. P. 306a(5). However, appellant affidavits supporting appellant's damages. Consequently, failed to obtain a hearing on this motion or a fact finding we find competent evidence to support the judgment for from the trial court stating when appellant received no- damages. Point of error five is overruled. tice of the judgment. Without this fact finding, we were In point of error three, appellant complains that the unable to determine whether appellant met his burden of award of prejudgment interest is not supported by the proving that the provisions of Tex. R. Civ. P. 306a(4) pleadings. We agree. Appellee filed a supplemental peti- applied to extend the time for filing its motion for new tion asking for prejudgment interest. Appellant was nev- trial. Thus, we concluded in our unpublished opinion of er served with a copy of the supplemental petition. Payne Keller Co. v. Word, No. A14-86-394-CV [**9] [HN7] New citation is necessary for a party who has not (Tex. App. -- Houston [14th Dist.] June 26, 1986) that appeared when the plaintiff, by an amended petition, appellant's motion for new trial was filed untimely. Point seeks a more onerous judgment than prayed for in the of error four is overruled. original pleading. Weaver v. Hartford Accident and In point of error five, appellant maintains that ap- Indemnity Co., 570 S.W.2d 367, 370 (Tex. 1978). We pellee offered no competent evidence to support her hold this rule applies with equal force where a supple- unliquidated damages. Specifically, appellant complains mental petition is filed rather than an amended petition. that the affidavits presented by appellee during the dam- Consequently, we sustain point of error [**11] three ages hearing were not served on appellant at least four- and modify the judgment by excluding the $ 35,630.25 teen days before the hearing as required by Tex. R. Evid. awarded as prejudgment interest. 902(10)(a). In essence, appellant is maintaining that ap- The judgment of the court below is affirmed as modified. Page 1

Positive As of: Mar 30, 2015

WILLIAM ESPINOZA PENA, PETITIONER, v. DAVID MCDOWELL, INDI- VIDUALLY AND IN HIS OFFICIAL CAPACITY, ET AL., RESPONDENTS

NO. 05-0546

SUPREME COURT OF TEXAS

201 S.W.3d 665; 2006 Tex. LEXIS 788; 49 Tex. Sup. J. 1017

August 31, 2006, Opinion Delivered

SUBSEQUENT HISTORY: Released for Publica- ment as well as several individual defendants, including tion October 20, 2006. the Office of the Attorney General, alleging various tort Related proceeding at Pena v. McDowell, 2007 Tex. App. claims and violations of his state and federal constitu- LEXIS 2559 (Tex. App. Tyler, Mar. 30, 2007) tional rights. The trial court dismissed Pena's suit with prejudice as "frivolous or malicious." The court of ap- PRIOR HISTORY: [**1] ON PETITION FOR peals affirmed the dismissal but reformed the trial court's REVIEW FROM THE COURT OF APPEALS FOR judgment to read "without prejudice." Pena v. McDowell, THE TWELFTH DISTRICT OF TEXAS. 2004 Tex. App. LEXIS 9664, No. 12-03-00141-CV, 2004 Pena v. McDowell, 2004 Tex. App. LEXIS 9664 (Tex. WL 2423546, at *4 (Tex. App.--Tyler Oct. 29, 2004, no App. Tyler, Oct. 29, 2004) pet.). This was based on the assumption that the trial court had dismissed Pena's suit for failure to [*666] comply with section 14.004 of the Civil Practices and COUNSEL: For PETITIONER: Mr. William Espinoza Remedies Code, which requires an inmate to list, with Pena, Pro se, Abilene, TX. particularity, the operative facts of any suit previously filed in forma pauperis by the inmate. 2004 Tex. App. For RESPONDENT: Mr. David W. McDowell, Pro se, LEXIS 9664, [WL] at *3-4 [**2] Under Texas law, such Tennessee Colony, TX. an error may be corrected through an amended pleading, so a dismissal with prejudice is not appropriate. See id. For AMICUS CURIAE: Honorable Greg Abbott, AT- (citing Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. TORNEY GENERAL of TEXAS, Mr. Barry Ross App.--Corpus Christi 2001, pet. denied)). McBee, Mr. Edward D. Burbach, Mr. David A. Talbot, Pena thereupon re-filed his suit. The trial court, act- Jr.,Ms. Kimberly L. Fuchs, Mr. Rafael Edward Cruz, ing sua sponte, again dismissed the case with prejudice OFFICE of the ATTORNEY GENERAL, Austin, TX. as frivolous. Although Pena filed motions for reconsid- eration and for an evidentiary hearing, the trial court did OPINION not rule on either request. Pena filed a notice of appeal. [*665] PER CURIAM Immediately thereafter, the clerk of the Twelfth Court of Appeals sent Pena a letter that read, in relevant William Pena, an inmate incarcerated at the Angle- part: ton unit of the Texas Department of Criminal Jus- tice--Institutional Division, filed suit against the Depart- Page 2 201 S.W.3d 665, *; 2006 Tex. LEXIS 788, **; 49 Tex. Sup. J. 1017

Pursuant to TEX. R. APP. P. 37.1, no- ed for filing must contain proof of service in the form of tice is hereby given that the notice of ap- either an [**5] acknowledgment of service by the per- peal filed in this case fails to contain the son served or a certificate of service."). information specifically required by TEX. And while it is true that Pena's failure to include the R. APP. P. 25.1(e). You are hereby noti- Attorney General's name and address on his certificate of fied pursuant to TEX. R. APP. P. 42.3, service violates Rule 9.5(d), it does not, strictly [*667] that unless a proper notice of appeal is speaking, violate Rule 25.1(e)--the only basis cited for filed with the trial court on or before the inadequacy of his notice of appeal and the stated Monday, May 9, 2005, the appeal will be reason for the dismissal of his appeal. As a result, the referred to the Court for dismissal. dismissal of the appeal cannot be sustained on that ground. (emphasis omitted). Pena did not respond to this letter, We recognize that courts of appeals have routinely and [**3] the court summarily dismissed his appeal, dismissed similar cases on the basis of Rule 25.1(e) even citing Pena's failure to comply with Rule 25.1(e) of the though a dismissal under Rule 9.5(d) would have been Rules of Appellate Procedure. 1 S.W.3d (Tex. more appropriate. See McCaleb v. Descisciolo, 2005 Tex. App.--Tyler 2005, pet. filed). App. LEXIS 3795, No. 12-05-00122-CV, 2005 WL 1177062, at *1 (Tex. App.--Tyler May18, 2005, no pet.); 1 Pena claims that he did not respond to the Guajardo v. Guajardo, 2003 Tex. App. LEXIS 2538, No. letter because he believed he had complied with 13-02-364-CV, 2003 WL 1562553, at *1 (Tex. Rule 25.1(e). Additionally, Pena alleges that App.--Corpus Christi Mar. 27, 2003, no pet.). However, someone from the clerk's office of the court of other courts have properly cited Rule 9.5(d) where ap- appeals notified him in a May 5, 2005 letter (re- propriate. See Reiners v. Reiners, 2005 Tex. App. LEXIS ceived May 11, 2005) that he had perfected his 411, No. 10-04-00359-CV, 2005 WL 114669, at *1 (Tex. appeal. A copy of that letter, however, has not App.--Waco Jan. 19, 2005, no pet.). been included in the record. While an experienced attorney might have been able Rule 25.1(e) requires that a notice of appeal in a civ- to discern from the court's citation [**6] to Rule 25.1(e) il case "be served on all parties to the trial court's final that there was a problem with the certificate of service, judgment." The court of appeals apparently dismissed the our decision today does not amount to a special accom- appeal because the notice of appeal failed to show on its modation to a pro se litigant. To the contrary, it has long face that the Office of the Attorney General had been been our position that pro se litigants are not exempt properly notified of the appeal. However, the defect in from the rules of procedure. Wheeler v. Green, 157 Pena's notice of appeal does not appear to be that he S.W.3d 439, 444, 48 Tex. Sup. Ct. J. 408 (Tex. 2005); failed to actually serve the [**4] Office of the Attorney Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85, General. Pena maintains in his brief that he did mail a 22 Tex. Sup. Ct. J. 43 (Tex. 1978). Rather, any litigant is copy of the notice of appeal to the Office of the Attorney entitled to relief from an erroneous decision of a court General, and the amicus brief submitted on behalf of the even though, as in this case, an experienced attorney Attorney General carefully avoids contradicting this might have been able to discern the actual reason for statement. Instead, the Attorney General's position (and dismissal. that of the court of appeals in the decision below) is that Rule 37.1 of the Rules of Appellate Procedure clear- Pena's failure to include the name and address of the At- ly requires an appellate clerk to notify the parties of a torney General on the certificate of service attached to the notice of appeal constitutes a violation of Rule defect in the notice of appeal so that the appealing party 25.1(e). can remedy the defect. Here, the appellate clerk failed to correctly identify the defect in Pena's notice of appeal However, Rule 25.1(e) makes no mention of a cer- and give him a chance to correct the mistake. tificate of service. Indeed, nowhere in Rule 25 are liti- gants directed to include a certificate of service with their Accordingly, without hearing oral argument, see notice of appeal or as to what the contents of such a cer- TEX. R. APP. P. 59.1, we reverse the court of appeals' judgment and remand the case to that court for proceed- tificate ought to be. Rule 25.1(e) merely requires actual ings consistent with this opinion. 2 service on all parties to the trial court's judgment. A cer- tificate of service is simply one method of demonstrating that actual service occurred and is addressed within an 2 Pena's pending motions requesting a tempo- rary restraining order, preliminary injunction, and entirely different section of the Rules of Appellate Pro- judicial notice are hereby denied. cedure. See TEX.R.APP.P.9.5(d) ("A document present- Page 3 201 S.W.3d 665, *; 2006 Tex. LEXIS 788, **; 49 Tex. Sup. J. 1017

[**7] Page 1

Positive As of: Mar 30, 2015

D. PRIEST & VAN ZANDT COMMISSION COMPANY, INC., Appellants v. TEX. ANIMAL HEALTH COMMISSION, Appellee

No. 05-88-01417-CV

COURT OF APPEALS OF TEXAS, Fifth District, Dallas

780 S.W.2d 874; 1989 Tex. App. LEXIS 3142

November 6, 1989

PRIOR HISTORY: [**1] On Appeal from 294th ment were inadequate as a matter of law to establish Civil District Court, Van Zandt County, Texas, Trial [**2] that no material issue of fact existed. We agree Court Cause No. 87-389. that the proof failed to establish that Priest failed to keep records as required by law. We conclude, however, that the other grounds for injunction were properly estab- COUNSEL: Molly D. Shannon, Austin, Texas. lished. Thus, the trial court's judgment is affirmed in part and reversed and remanded in part. Mark J. Calabria, Rebecca L. Calabria, Kaufman, Texas. STANDARDS OF REVIEW JUDGES: Justices Howell, Linda Thomas and Ovard. A. Permanent Injunction Dissenting Opinion By Justice Charles Ben Howell. A successful applicant for injunctive relief must OPINION BY: THOMAS demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent OPINION harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCor- [*875] D. Priest and Van Zandt Commission dova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881 Company (hereafter collectively "Priest") appeal from a (Tex. App. -- Fort Worth 1982), aff'd, 647 S.W.2d 246 permanent injunction entered by summary judgment, (Tex. 1983). enjoining Priest from: 1) failing to maintain proper cattle ownership records for cattle sold through them; 2) refus- The grant or refusal of a permanent or temporary ing to allow Texas Animal Health Commission (hereafter injunction is ordinarily within the sound discretion of the "Commission") representatives to examine such records; trial court and, on appeal, review of the trial court's ac- and 3) failing to brand cattle exposed to brucellosis. In tion is limited to the question of whether the action con- two points of error, Priest contends that the trial court stituted a clear abuse of discretion. Janus Films Inc. v. erred in granting the Commission's motion for summary [*876] City of Fort Worth, 163 Tex. 616, 617, 358 judgment because: 1) the summary judgment evidence S.W.2d 589, 589 (1962) (temporary injunction); Mejerle did not entitle the Commission to judgment as a matter v. Brookhollow Office Products [**3] , 666 S.W.2d 192, of law and did not establish that there were no genuine 193 (Tex. App. -- Dallas 1983, no writ) (temporary in- issues of material fact; and 2) the affidavits and attach- junction); Electronic Data Sys. Corp. v. Powell, 508 ments to the Commission's motion for summary judg- S.W.2d 137, 139 (Tex. Civ. App. -- Dallas 1974, no writ) Page 2 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

(temporary injunction, but suggesting that abuse of dis- The applicable standards for reviewing a summary cretion standard applies to all injunctions); Lee v. judgment may be summarized as follows: Bowles, 397 S.W.2d 923, 926 (Tex. Civ. App. -- San Antonio 1965, no writ) (permanent injunction). Where 1. The movant for summary judgment the facts conclusively show a party is violating the sub- has the burden of showing that there is no stantive law it becomes the duty of the court to enjoin the genuine issue of material fact and that it is violation and in such case there is no discretion to be entitled to judgment as a matter of law. exercised. City of Houston v. Memorial Bend Util. Co., 2. In deciding whether there is a dis- 331 S.W.2d 418, 422 (Tex. Civ. App. -- Houston 1960, puted material fact issue precluding sum- writ ref'd n.r.e.). mary judgment, evidence favorable to the Although a litigant has the right to a trial by jury in nonmovant will be taken as true. an injunction action, only ultimate issues of fact are submitted for jury determination. State v. Texas Pet 3. Every reasonable inference must be Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979). The jury indulged in favor of the nonmovant and does not determine the expediency, necessity or proprie- any doubts resolved in its favor. ty of equitable relief. Id.; Alamo Title Co. v. San Antonio Bar Ass'n, 360 S.W.2d 814, 816 (Tex. Civ. App. -- Waco 1962, writ ref'd n.r.e.). As the supreme court has noted: Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 We do not consider the question [**4] S.W.2d 309, 310-11 (Tex. 1984). With the standards of of likelihood of [defendant's] resumption review for injunction and for summary judgment in or continuation of the acts enjoined as mind, we turn to the summary judgment proof offered in being an ultimate issue of fact for the jury. support of Priest's violations of the Texas Agriculture . . . A jury in equity, even under a blended Code. system, does not decide the issue of expe- FAILURE TO KEEP PROPER RECORDS diency, necessity or propriety of equitable relief. . . . It was an element deducible The Texas Agriculture Code requires that each live- from the circumstances for the court to stock auction commission merchant keep a record of consider in determining whether wrong or transportation of livestock to and from the place of sale, injury might be anticipated and whether [**6] including the name and address of the original chancery powers should be exercised. It owner and the purchaser of the livestock. TEX. AGRIC. constituted here, in effect, a mixed ques- CODE ANN. § 147.042 (Vernon 1982). The statute pro- tion of law and fact at most. Such ques- vides that the commission merchant shall retain the rec- tions are not for the jury in injunction ords for at least one year after the date of sale. Id. § cases. 147.042(d). [*877] The Commission also points to section 147.041 of the Texas Agriculture Code and to rule Texas Pet Foods, 591 S.W.2d at 803, quoting Alamo Title Co., 360 S.W.2d at 816. 35.2(e) of the Texas Bovine Brucellosis Regulations promulgated by the Commission pursuant to sections 161.046 and 163.061 of the Texas Agriculture Code, as B. Summary Judgment requiring Priest to keep records of the names and ad- The function of a summary judgment is not to de- dresses of sellers and purchasers of cattle. Section prive a litigant of his right to a full hearing on the merits 147.041 requires Priest to keep records of all livestock of any real issue of fact, but to eliminate patently unmer- sold. TEX. AGRIC. CODE ANN. § 147.041(a). It does itorious claims and untenable defenses. Gulbenkian v. not explicitly state that Priest must keep records includ- Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). ing the name and address of sellers and purchasers of Under rule 166a of the Texas Rules of Civil Procedure, livestock, although the statute requires him to file with summary judgment may be rendered only if the plead- the commissioners court a quarterly report containing ings, depositions, admissions, interrogatory answers, and this information. TEX. AGRIC. CODE ANN. § affidavits show 1) that there is no genuine [**5] issue 147.041(c). Because the statute does not specifically as to any material fact and 2) that the moving party is require Priest to keep the information the Commission entitled to judgment as a matter of law. TEX. R. CIV. P. contends he failed to keep, we conclude that violation of 166a(c). this provision will [**7] not support the injunction. Rule 35.2(e) provides that the market will supply certain Page 3 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

information to the veterinarian making a market test of Such statements of the nonmovant must be taken as true. cattle, including the full name and address, including zip Nixon, 690 S.W.2d at 548. code, of the owner of the cattle at the time the cattle are We recognize that Priest did not raise this precise delivered to the market. Again, although the rule cer- argument in his response to summary judgment, nor in tainly implies a requirement to keep records in order to his brief on appeal. We note, however, that this point supply the information to the veterinarian, there is no concerns a deficiency of proof that Priest is entitled to explicit requirement that Priest keep such records. The raise without first complaining [*878] in his response Commission has not alleged that Priest failed to give the to the motion for summary judgment. No response from required information to the veterinarian. Thus, violation the nonmovant is required when the movant's summary of rule 35.2(e) will not support the injunction. judgment proof is legally insufficient. Cove Invest- As proof that Priest failed to keep records including ments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex. 1980). the name and address of the original owner and the pur- Further, Priest's points [**10] of error aver generally chaser, the Commission attached to its motion for sum- that the trial court erred in granting the summary judg- mary judgment Priest's answers to interrogatories, an ment because the Commission failed to prove its enti- affidavit of Wayne Rogers, a postmaster, and excerpts tlement to such judgment. These points embrace all rea- from the United States Government Manual pertaining to sons for the failure of proof which rendered the granting mail. The Commission served on Priest two sets of in- of the summary judgment improper. Id. at 517. We terrogatories. The sixty questions in the two sets each hold that the summary judgment proof failed to establish asked Priest to: "Provide full name, address including the Commission's entitlement to summary judgment on county and telephone number for seller/original owner of the basis of a failure by Priest to maintain proper records. [certain [**8] cattle identified by back tag number] sold Without proof of unlawful conduct or proof of intent to through Van Zandt Commission Company, Inc. on [a commit such conduct, injunctive relief is improper. certain date]." The dates of sales were between January Frey, 632 S.W.2d at 881. We sustain that portion of point 4, 1986 and December 20, 1986. Priest's answers to the of error one contending that the Commission failed to interrogatories were served on counsel on June 17, 1988. establish its right to judgment on the ground of failure to Priest's responses to a number of the interrogatories in- keep proper records. cluded name, address including route number and box REFUSAL OF ACCESS TO RECORDS number or street address, city and state, and zip code. Several interrogatory answers included a name and route Section 147.042 of the Texas Agriculture Code pro- number, city and state, but did not include a box number vides that the commission merchant shall prepare the and zip code. Others included a name, city and state, or transportation records referenced above and make them merely a name. In response to one interrogatory asking available for public inspection within twenty-four hours for the name and address of the seller/original owner of after receipt of the livestock and that these records are to back tag #74 493 sold through Van Zandt Commission be retained for at least one year after the date of sale. Company on November 22, 1986, Priest responded, "In- TEX. AGRIC. CODE ANN. § 147.042. The Commission formation not available." The affidavit of the postmaster contended that [**11] Priest had refused to allow and the excerpts from the Government Manual concern- Commission representatives to examine these records. ing the elements of a proper address were offered to As proof, the Commission offered the affidavit of Rich- show that the information provided by Priest did not, in ard Hanson, Animal Health Inspector. Hanson averred many respects, constitute full names and addresses. that on several occasions in the exercise of his official duties he had attempted to examine the records of the The Commission's theory for summary judgment Van Zandt Commission Company and was told by Priest was that Priest's inability to produce names and address- or his wife, who acted as bookkeeper for the company, es for his responses [**9] to the interrogatories was that he would not be allowed to view any of the records proof that, as a matter of law, Priest did not keep the rec- unless he brought a search warrant. He lists several dates ords required by the Agriculture Code. The hypothesis upon which he was refused access to the records, such is compelling, except for one failing. The Agriculture dates being within one year of sales referenced in the Code required Priest to retain records from sales for only interrogatories. one year. TEX. AGRIC. CODE ANN. § 147.042(d). The fact that Priest could not produce information on June Priest argues that Hanson's affidavit will not support 17, 1988, concerning sales in 1986, constitutes no proof summary judgment because Hanson is an interested wit- that Priest failed to keep the records of sale for one year ness. Rule 166a of the Texas Rules of Civil Procedure as required by the Code. In fact, Priest stated in his affi- provides that a summary judgment may be based on un- davit that he has always maintained the proper records. controverted evidence of an interested witness if the evi- dence is clear, positive and direct, otherwise credible and Page 4 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

free from contradictions and inconsistencies, and could Priest argues that Nabors's affidavit and attachments have been readily controverted. TEX. R. CIV. P. 166a(c); do not support the summary judgment because the affi- Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d davit contains hearsay, is not based upon personal 606, 607 (Tex. 1986). We conclude that the statements knowledge, and fails to establish the admissibility of the [**12] in Hanson's affidavit that on several listed dates attachment. Priest's hearsay complaint is directed to the he was refused access to records by Priest and his wife statement that "the veterinarian classified both animals as are clear, positive, direct and could have been readily reactors." We agree that such statement is inadmissible controverted. Further, this evidence was not controverted hearsay, properly objected to in Priest's response to the by Priest. Thus, the summary judgment could be based motion for summary judgment, and should be disregard- upon Hanson's affidavit. Hanson clearly stated that he ed. Priest further contends that this hearsay statement was not allowed to view records which the Agriculture shows that Nabors's affidavit is not based on personal Code required Priest to retain and make available for knowledge, but rather upon the statement of some un- public inspection. We hold that this evidence established known veterinarian. We disagree. The affidavit states the Commission's entitlement to summary judgment on that Nabors confirmed this statement from his own la- this ground as a matter of law. boratory tests. Priest also argues that the documents at- tached to Nabors's affidavit are inadmissible because the FAILURE TO BRAND CATTLE EXPOSED TO documents are not directly referenced or identified in the BRUCELLOSIS affidavit, the affidavit does not reflect whether the at- The Texas Bovine Brucellosis Regulations require tachments are true and correct [**15] copies of the cattle infected with brucellosis and cattle exposed to in- originals, and the affidavit does not establish the admis- fected cattle to be appropriately branded. Cattle identi- sibility of the documents. fied as being infected with brucellosis are branded on the Priest is mistaken in stating that the affidavit does left jaw with the letter "B." Cattle from the same herd as not refer to the documents. The affidavit clearly states, any infected cattle are considered suspects, and are to be "The attached documents correctly reflect . . ."; thus, the branded on the left jaw with the letter "S." Tex. Animal affidavit does directly reference the documents. Priest's Health Comm'n, 4 TEX. ADMIN. CODE § 35.2(h) (West argument that the affidavit fails to state that the copies Oct. 15, 1988) (brucellosis). All exposed cattle are to be are true and correct copies is more troublesome. Priest branded prior to moving, except that cattle on the prem- correctly states that such words are not used. Rule 166a ise of origin [**13] may be moved to a livestock mar- states that attachments referred to in an affidavit shall be ket where they are to be identified by "S" brand upon sworn or certified copies. TEX. R. CIV. P. 166a(e). arrival. Id. § 35.2(h)(2). Documents which are not sworn to or certified in any As proof that Priest had moved suspect cattle with- way do not constitute summary judgment proof. Lopez out first "S" branding them, the Commission offered the v. Hink, 757 S.W.2d 449, 450 (Tex. App. -- Houston affidavits of Rick Nabors, director of the State-Federal [14th Dist.] 1988, no writ). laboratories [*879] in Texas, and veterinarian Edward The supreme court has held, however, that copies of L. Ptacek. In addition, Nabors's affidavit was accompa- documents which are attached to a properly prepared nied by documents reflecting the results of brucellosis affidavit are sworn copies within the meaning of rule tests of cattle passing through the Van Zandt market. 166a. Schindler, 717 S.W.2d at 607; Zarges v. Bevan, Nabors stated that he is a microbiologist and that the 652 S.W.2d 368, 369 (Tex. 1983). An affidavit which attached documents correctly reflect that brucellosis tests avers that the documents are true and correct copies is were conducted on blood samples received from a herd considered a properly prepared affidavit. Schindler, 717 of cattle owned by the Malouf Ranch. The test results on [**16] S.W.2d at 607. Schindler does not, however, two animals, identified by backtag numbers, were posi- limit a properly prepared affidavit to one containing tive. Nabors averred further, "Based on the card test, the these magic words. We hold that Nabors's statement that veterinarian classified both animals as reactors [infected the documents accurately reflect the results of tests per- with brucellosis]. The State-Federal laboratory tests con- formed by the laboratory he supervises properly verified firm his results." Edward Ptacek stated that he had been the documents. employed by the Commission as the director of Area 5, the area in which the Van Zandt Commission Company Priest's last complaint directed to Nabors's affidavit conducted business. On a certain date, he personally ob- and attached documents is that the affidavit fails to es- served seventy-three head [**14] of cattle from the tablish the admissibility of the attachments "with respect Malouf Ranch, which herd contained two brucello- to who made the document, when they were prepared or sis-infected animals, being moved without proper "S" whether or not they were business records." Priest does branding as required for the seventy-one exposed cattle. not aid us with citation to authority; nevertheless, we discern that his complaint is that the documents were Page 5 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

hearsay in that they were not shown to be admissible the permanent injunction enjoining Priest from failing to business records. Priest raises this complaint for the first maintain proper records is dissolved. time on appeal. Because he failed to raise this hearsay Before Justices Howell, Linda Thomas and Ovard. objection in his response to the motion for summary judgment, he has waived any complaint as to [*880] [**19] Dissenting opinion by Justice Charles Ben consideration of inadmissible evidence as part of the Howell. summary judgment record. Dolenz v. A.B., 742 S.W.2d 82, 83-84 n.2 (Tex. App. -- Dallas 1987, writ denied). DISSENT BY: HOWELL Priest attacks Ptacek's affidavit because the witness DISSENT references "the foregoing [**17] test records," an ap- parent reference to the documents attached to Nabors's Dissenting Opinion By Justice Charles Ben Howell affidavit, which preceded Ptacek's affidavit when pre- I dissent. The majority opinion will not stand up to sented to the court. Priest again complains that the doc- close analysis. uments were not properly sworn. We reiterate that Na- bors's affidavit properly verified the exhibit. Priest fur- (1) The majority concludes by affirming on grounds ther complains that the referenced document was not that "the trial court did not abuse its discretion." The attached to Ptacek's affidavit. Rule 166a(e) provides that wrong test has been applied. Summary judgment will not sworn copies of all papers or parts thereof referred to in lie unless the movant shows his entitlement thereto as a an affidavit shall be attached thereto or served therewith. matter of law. It is error to award an injunction through Priest does not contend that the documents attached to the summary judgment process unless the movant's proof Nabors's affidavit were not served together with Ptacek's is such that the trial court is wholly without discretion. affidavit when the Commission's motion for summary Only where the summary judgment evidence is such that judgment was served. it demonstrates that the denial of relief would be a clear abuse of discretion may a permanent injunction be en- Having determined what parts of the summary tered in response to a motion for summary judgment. judgment proof may be considered, we turn now to the Otherwise, as in the case at hand, the movant has not met sufficiency of that proof. Nabors stated that two animals from the Malouf herd tested positive for brucellosis, and his burden to show that he is entitled to recover, as a were therefore considered reactors. The test results show matter of law. that the test was conducted at Priest's facility. Further, (2) At the outset, the majority recites a four-fold test Ptacek stated that he personally observed, at the Van that the movant must satisfy in order to obtain a perma- Zandt Commission Company, suspect cattle that were nent injunction. This dissent will assume for the time moved without first being branded "S". being that the State sufficiently proved the existence of We conclude [**18] that the summary judgment unlawful conduct. However, the record [**20] is bereft proof showed that Priest had moved suspect cattle with- of any showing upon the other three elements, imminent harm, irreparable injury, and no adequate remedy at law. out first branding the cattle with the letter "S" as required After firmly declaring that such a showing is required, by the Texas Bovine Brucellosis Regulations promul- the majority has no comment on the State's failure to gated by the Commission. Thus, the Commission estab- make a showing upon the three latter elements [*881] lished its entitlement to summary judgment on this ground as a matter of law. which it has held (and correctly so) to be necessary.

SUMMARY (3) The majority declares that injunction is a discre- tionary remedy and declares that appellate review is We hold that the trial court properly granted the "limited to the question whether the action constituted a summary judgment concluding that Priest had refused to clear abuse of discretion." However, all of the cases cited allow Commission representatives to examine records involved the issuance of an injunction following a trial and that Priest had allowed suspect cattle to be moved on the merits. As already stated, in order to fulfill the without first branding them as required by state regula- summary judgment requirement that the movant show tions. We also conclude that the trial court did not abuse himself entitled to judgment "as a matter of law," the its discretion in entering the permanent injunction on movant must have demonstrated to the trial court that it these grounds. We further hold that the evidence failed to was without discretion to deny the injunction. 1 show that, as a matter of law, Priest failed to keep rec- ords as required by law. Thus, we conclude that the trial 1 The majority states that "where the facts con- court abused its discretion in entering the injunction on clusively show a party is violating the substantive this ground. We reverse the summary judgment on this law it becomes the duty of the court to enjoin the ground and remand for further proceedings. In addition, violation," citing City of Houston v. Memorial Page 6 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

Bend Util. Co., 331 S.W.2d 418, 422 (Tex. Civ. Seemingly, the Commission would sidestep this App. -- Houston [1st Dist.] 1960, writ ref'd n.r.e.). problem by arguing that it seeks to enjoin violations of However, a reading of Memorial Bend reveals its rules (which do little or nothing more than parrot the that its declaration was far too broad. In that case, provisions of the statutes) rather than violations of the a utility company unilaterally increased its statute pertaining to "Livestock Markets." Id. §§ 161.111 monthly rates in violation of a valid city ordi- through 161.116. However, it is well settled that an ad- nance. The defendant utility gave every indica- ministrative agency has no power to adopt rules that de- tion that it intended to continue charging its un- feat the plain meaning of statutes. lawful rates unless restrained. The appellate When we search for the rule-making authority of the court, finding the ordinance valid, held that the Commission, we find that the statutes contain several trial court committed a clear abuse of discretion grants to the [**23] Commission of authority to prom- in refusing a temporary injunction. Laying aside ulgate rules. First of all, the exempted subchapter con- the fact the Memorial Bend only involved a tem- tains rule-making authority. Id. §§ 161.111 through porary injunction, there are many differences 161.116. However, if there is no authority to enforce the from the case at hand, particularly with respect to statute by injunction, there can be no authority to enforce proof that the defendant's unlawful conduct by injunction the rule-making authority contained in the would continue unless enjoined and the lack of a same statute. After all, water can rise no higher than its showing of irreparable injury. source. [**21] It is rare that a plaintiff by motion for [*882] Other parts of the same chapter describe summary judgment is able to meet, as a matter of law, the powers and duties of the Commission, and contain the rigorous demands of the equity which must be satis- additional provisions authorizing entry and granting rule fied before an injunction may issue. Equitable relief is making power. There are also provisions outside of the discretionary relief. The trial court must engage in a bal- exempted subchapter relating to the inspection, treat- ancing of the equities. In the ordinary instance, the ap- ment, quarantine, and sale or marketing of diseased ani- plicant must plead and prove that he has no adequate mals. remedy at law. Equity will not, in the ordinary instance, engage in the enforcement of the criminal law. It is fur- Another chapter of the Code, entitled "Livestock ther well established that he who seeks equity must do Commission Merchants," contains, among other things, equity, that equity aids the vigilant, that equity will not record-keeping and inspection provisions. Id. §§ do a vain or useless thing, and that equity only exacts 147.001-147.065 (Vernon 1982 & Vernon Supp. 1989). restitution, never vengeance. Still another chapter entitled "Brucellosis Control Are- as," sections 163.001 through 163.087, contains further The plaintiff Commission appears to rely on two provisions relating to rule-making, entry, reports, testing, statutes for exemption from the principles of equity or- branding, and handling of diseased animals. Id. §§ dinarily applicable in cases such as this. Neither statute 163.001-163.087 (Vernon 1982 & Vernon Supp. 1989). expressly entitles state officials or state agencies to equi- table relief except in compliance with the rules of general [**24] The Commission would apparently argue application. It is a well established principle that the that the rules upon which it relies were not promulgated state, its agencies, and its officials enter court and litigate under authority of section 161.112, a portion of "this on the same basis and subject to the same requirements chapter" to which the injunction provision is expressly of law as private individuals. We should be very slow inapplicable. Presumably, the argument is that the rules [**22] to read into the statutes in question any special were adopted under authorizations found elsewhere from provisions in favor of the Commission. sections 161.111 through 161.116 and that the rules are therefore not affected by the no-injunction proviso of The first of the statutes invoked is, by far, the most section 161.131(a). specific in its application. Section 161.131 of the Texas Agriculture Code provides that "any citizen" may sue to The easy answer to this argument is that the specific enjoin violations of "this chapter." TEX. AGRIC. CODE controls over the general. Inasmuch as the statutory ANN. § 161.131(a) (Vernon 1982). However, it is scheme expressly makes the injunction provision inap- doubtful if that statute has any application because it plicable to "Livestock Markets" and to the rule making expressly exempts subchapter F, being sections 161.111 authority pertaining to "Livestock Markets," we must through 161.116 entitled "Regulation of Livestock Mar- hold that the Commission may not subvert the clear stat- kets." It appears that the violations found by the majority utory command through the adoption of rules pertaining simply do not fall within the injunction provision of the to "Livestock Markets" on the basis of generalized code. rule-making authority contained elsewhere in the Code. Any other construction operates to nullify a clear decla- Page 7 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

ration of legislative intent. TEX. AGRIC. CODE ANN. § affirmed: "Irreparable harm would be threatened to the 161.131(a) (Vernon 1982). cattle industry of Frio County if appellant cannot be compelled to comply with the statute." An outbreak of The other statutory authorization for injunctive relief the disease was then manifest in the area and all herds upon which the Commission would rely is contained in were being mandatorily tested. In order to control the the Administrative [**25] Procedure and Texas Regis- spread of the infection, immediate and widespread test- ter Act. TEX. REV. CIV. STAT. ANN. art. 6252-13a, § ing was imperative. The irreparable injury requirement 19A (Vernon Supp. 1989). This statute has such broad was satisfied. Id. and general application that we must be slow indeed to import into it any special prerogatives on the part of the Having outlined the principles upon which this case State, its officials, and its agencies to obtain injunctive should be decided, this dissent turns to the specifics. Our relief. We must hold that this latter statute is no more majority has found that the defendant committed two than a general statement of principle that the State, its violations of the Agriculture Code. On several occasions, agencies, and its employees may obtain injunctive relief defendant refused to allow inspection of his records by wherever the usages of equity forged out over the centu- Commission personnel. Proof that the infraction occurred ries make injunctive relief available and appropriate. and that it was repeated does not necessarily prove irrep- arable injury. In fact there was no showing that defend- The foregoing analysis cannot, by any means, be in- ant was attempting [**28] to hide the fact that he was terpreted as a holding that the statutes just discussed pre- engaged in the practice of dealing in diseased cattle, if clude the Commission from injunctive relief. Sections such be the real contention of the plaintiff Commission. 65.001 through 65.031 of the Texas Civil Practice and By his affidavit, defendant has offered the following Remedies Code generally regulate the availability of in- explanation of his conduct: junction for all litigants. TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.001-65.031 (Vernon 1986); see also I have previously understood from TEX. R. CIV. P. 693. This analysis of the injunction stat- other livestock barn owners that they were utes returns to the point from which it departed. No, this sued by animal owners for revealing or defendant and its operations as a livestock commission producing records. I now understand that market are not wholly exempt from being forced through such records are public in nature and must the [**26] issuance of an injunction to comply with the be produced at all times upon request. . . . Agriculture Code. Yes, the writ is available on suit by the I have no intention of violating the laws Commission. However, the Commission enters the of the State of Texas in the future. courts of this State on the same basis as any other liti- gant, being neither more entitled nor less entitled to in- junctive relief than any other citizen. By its summary judgment, the trial court has de- One reservation must be made to the foregoing prived defendant of the opportunity to present his testi- statement. A state official or agency cannot be held to the mony in person to the trier of fact. Had the trier of fact exacting standard of irreparable injury to which a private believed that defendant was sincere and credible, had the litigant is generally held. Where a public official is ex- trier of fact decided that no harm was done, had the trier pressly charged with the enforcement of a regulatory of fact decided that future violations were unlikely, did scheme, if we were to hold that he must show irreparable the trier of fact possess the discretion, after the plenary injury to himself, to state property or to the state treas- hearing, to deny injunctive relief to the Commission? Of ury, we would obviously be effectively denying the course, he did. By the same measure, it was error to enter State, and those through whom it must act, of injunctive a summary judgment in this case. It is not the office of relief in virtually all cases. The irreparable injury re- summary judgment to substitute trial by affidavit for trial quirement is satisfied on behalf of the State when it upon the [**29] merits with live witnesses for both shows the threat of clear, immediate and substantial in- sides. The office of summary judgment is limited to the jury, of an irreparable nature, to the protected class or to elimination of patently unmeritorious claims. a specific group through violation of the regulatory pro- vision which the [*883] State officer or agency is The other violation found against defendant was that charged by law to enforce. Thus, the irreparable injury a herd containing two diseased animals passed through [**27] requirement was satisfied in the case of Gluck v. defendant's premises without being branded in accord- Texas Animal Health Comm'n, 501 S.W.2d 412, 415 ance with the rules and statutes. However, unlike Gluck, (Tex. Civ. App. -- San Antonio 1973, writ ref'd n.r.e.). In the cattle in question had gone far from defendant's that case, the landowner refused to allow his cattle to be premises when summary judgment was rendered. Our tested for brucellosis. The trial court issued an injunction trial court could do naught but enjoin future conduct of a via motion for summary judgment. The appellate court similar nature. However, there was no claim of any con- Page 8 780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **

tinued pattern of activity, no claim that defendant rou- Texas Employment Comm'n v. Martinez, 545 S.W.2d tinely allowed diseased cattle to be sold through his 876, 877 (Tex. Civ. App. -- El Paso 1976, no writ). premises, or even that defendant or anyone in authority At the trial upon the merits, the Commission will at defendant's premises knew that the cattle in question further be burdened to present evidence that it has no were either subject to the disease or that they had not adequate remedy at law. A corollary to this rule provides been branded as suspects. that the remedy of injunction is not available to prevent It is not to be doubted that the statute imposes af- violations of the criminal law. Each of the infractions for firmative duties on a livestock market operator. He has which defendant has been enjoined is punishable as a the affirmative duty to see to it that diseased cattle are misdemeanor. In addition, sections 147.021 through not sold through his premises in violation of the law. 147.029 of the Agriculture Code require defendant to However, in the absence of some showing of dereliction provide a bond. Suit on the bond is an available recourse of duty, in the absence of some showing of the [**30] with respect to some, if not all, of the infractions here threat of future violations of the same sort, the trial court alleged. TEX. AGRIG. CODE ANN. §§ after hearing the evidence in full must deny injunctive 147.021-147.029 (Vernon 1982). The Commission has relief upon this count. The Commission has not made asked for and received injunctive relief without a show- prima facie proof of its entitlement to an injunction ing that it ever sought these statutory remedies or why simply by proving one single past incident and offering they would not be effectual. Without such a showing, the no evidence of culpability and no evidence of any likeli- Commission is not entitled to injunctive relief. hood of recurrence. Gluck does not hold to the contrary. The [**32] re- Injunction is a harsh remedy and must be carefully al thrust of Gluck is that the immediacy of the situation -- regulated and confined to proper cases. Raine v. the ongoing spread of an epidemic -- required relief that Searles, 302 S.W.2d 486, 487 (Tex. Civ. App. -- El Paso the criminal law could not expeditiously provide. If 1957, no writ). Injunctions are issued only to prevent Gluck made any broader ruling, it should be disavowed. imminent [*884] harm. Lloyd v. Alaska Worldwide, If the Commission desires to bypass the remedies set Inc., 550 S.W.2d 343, 348 (Tex. Civ. App. -- Dallas forth on the face of the statute, it must explain its reasons 1977, no writ). In the absence of a showing that the acts for doing so. Without an adequate explanation, injunc- complained of probably will occur again, acts occurring tion must be denied. prior to the suit will not furnish a basis for injunctive Again, the objective of equity is restitution, not relief. Edgar v. Glenn W. Turner Enterprises, 487 vengeance. For the refusal to allow the inspection of rec- S.W.2d 847, 849 (Tex. Civ. App. -- Austin 1972, no ords upon request, as required by law, a fine is a singu- writ); see Knopf v. Standard Fixtures Co., 581 S.W.2d larly appropriate remedy. Why did the Commission for- 504, 506 (Tex. Civ. App. -- Dallas 1979, no writ); go such a plain and apparently adequate remedy? The Burklund v. Hackett, 575 S.W.2d 389, 392 (Tex. Civ. record is entirely silent. Likewise, isolated instances of App. -- Tyler 1978, no writ). The purpose of injunctive misbranding can be addressed by the criminal law. Until relief is to halt [**31] wrongful acts that are threatened and unless the Commission adequately explains its fail- or in the course of accomplishment, rather than to grant ure to seek these remedies, injunction must be denied. relief against past actionable wrongs or to prevent the commission of wrongs not imminently threatened. I therefore dissent. For the reasons given, this case must be reversed and remanded for trial upon its merits. | | Caution As of: April 7, 2015 5:57 PM EDT

Primate Constr. v. Silver Supreme Court of Texas September 15, 1994, Delivered No. 94-0723

Reporter 884 S.W.2d 151; 1994 Tex. LEXIS 130; 37 Tex. Sup. J. 1216

PRIMATE CONSTRUCTION, INC., PETITIONER v. JIM reversed the default judgment. The court observed that SILVER, SUZANNE SILVER AND SILVER in order to be entitled to reversal by writ of error, a party INSPECTION SERVICES, INC., RESPONDENTS who did not participate at trial had six months in which to show error on the face of the record. Thus, because the Prior History: [**1] ON APPLICATION FOR WRIT OF sheriff's return showed that the employer was served ERROR TO THE COURT OF APPEALS FOR THE with a version of plaintiffs' petition in which the employer FOURTEENTH DISTRICT OF TEXAS. was not named as a defendant, the lower appellate court erred in finding no error on the face of the record. Core Terms Outcome

recited, court of appeals, return of service, default The court granted the employer's application for writ of error and reversed a default judgment that was entered for plaintiffs. The court remanded the cause to the trial Case Summary court.

Procedural Posture LexisNexis® Headnotes Defendant employer applied for a writ of error against a default judgment from the Court of Appeals for the Civil Procedure > Appeals > Reviewability of Lower Court Fourteenth District of Texas entered in favor of plaintiffs, Decisions > Timing of Appeals who were injured in an automobile accident involving an employee. The employer claimed that there was error in HN1 In order to be entitled to reversal by writ of error, a that the sheriff's pre-printed return of service did not party who did not participate at trial has six months in show that the employer was served with a version of which to show error on the face of the record. plaintiffs' petition naming the employer as a defendant. Civil Procedure > ... > Pleadings > Service of Process > Overview General Overview Civil Procedure > Judgments > Pretrial Judgments > The employee and plaintiffs were involved in an General Overview automobile accident. Plaintiffs were injured and filed suit. Their original petition named only the employee as Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > General Overview defendant; plaintiffs' second amended petition named the employer. The trial court granted default judgment Civil Procedure > ... > Pretrial Judgments > Default & for plaintiffs. The appellate court affirmed the judgment. Default Judgments > Default Judgments The record indicated that the citation was attached to a Civil Procedure > ... > Pretrial Judgments > Default & true and correct copy of plaintiffs' second amended Default Judgments > Relief From Default petition; however, the sheriff's pre-printed return of service form indicated that the employer was served HN2 Strict compliance with the rules for service of with a true and correct copy of only plaintiffs' original citation must affirmatively appear on the record in order petition. The court granted the employer's application for a default judgment to withstand direct attack. There for a writ of error, pursuant to Tex. R. App. P. 170, and are no presumptions in favor of valid issuance, service, 884 S.W.2d 151, *151; 1994 Tex. LEXIS 130, **1

and return of citation in the face of a writ of error attack hearing oral argument, reverses the judgment of the on a default judgment. court of appeals and remands the cause to the trial court. Civil Procedure > ... > Pleadings > Service of Process > Jim Silver, Suzanne Silver and Silver Inspection General Overview Services, Inc. originally filed suit against Gary Wayne Civil Procedure > Judgments > Pretrial Judgments > Martin, the driver of the car with which they collided and General Overview an employee of Primate Construction, Inc. Primate Civil Procedure > ... > Pretrial Judgments > Default & Construction was first named as a defendant in Plaintiffs' Default Judgments > General Overview Second Amended Petition. The citation in the record indicates that the citation was attached to a true and Civil Procedure > ... > Pretrial Judgments > Default & correct copy of Plaintiffs' Second Amended Petition; Default Judgments > Default Judgments however, the pre-printed [**2] return of service form, signed by the sheriff, indicates that Primate Construction HN3 A return of service is not a trivial, formulaic was served with a true and correct copy of the Plaintiffs' document. It has long been considered prima facie Original Petition. When Primate Construction failed to evidence of the facts recited therein. The recitations in answer, the plaintiffs took a default judgment, from the return of service carry so much weight that they which Primate Construction appealed by writ of error to cannot be rebutted by the uncorroborated proof of the the court of appeals. moving party. The weight given to a return is no less when the recitations impeach the judgment than when HN1 In order to be entitled to reversal by writ of error, a they support it. party who did not participate at trial has six months in which to show error on the face of the record. Brown v. Civil Procedure > ... > Pleadings > Service of Process > McLennan County Children's Protective Services, 627 General Overview S.W.2d 390, 392 (Tex. 1982). Because the sheriff's return shows that the defendant was served with a HN4 It is the responsibility of the one requesting service, version of the plaintiffs' petition in which Primate not the process server, to see that service is properly Construction was not named as a defendant, the court accomplished. Tex. R. Civ. P. 99(a). This responsibility of appeals erred in finding no error on the face of the extends to seeing that service is properly reflected in record. the record. The Rules of Civil Procedure allow for liberal amendment of the return of service to show the true For well over a century, this court has required that HN2 facts of service. Tex. R. Civ. P. 118. If the facts as recited strict compliance with the rules for service of citation in a sheriff's return, pre-printed or otherwise, are affirmatively appear on the record in order for a default incorrect and do not show proper service, the one judgment to withstand direct attack. Wilson v. Dunn, requesting service must amend the return prior to 800 S.W.2d 833, 836 (Tex. 1990); Ulvade Country Club judgment. v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex. 1985); McKanna v. Edgar [**3] , 388 S.W.2d 927, 929 Opinion by: PER CURIAM (Tex. 1965); Flynt v. Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876); Roberts v. Stockslager, 4 Tex. 307 (1849). There are no Opinion presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a [*152] PER CURIAM default judgment. Ulvade, 690 S.W.2d at 836; McKanna, 388 S.W.2d at 929; Flynt, 82 S.W.2d at 934. Here, the On appeal by writ of error from default judgment, we plaintiffs argue that there is no error because the blanks consider whether Defendant Primate Construction Co., filled in on the citation show the correct petition was Inc. has shown error on the face of the record because attached, while the only evidence to the contrary is a the sheriff's pre-printed return of service states that form on which the sheriff made no affirmative alteration. Primate Construction was served with a version of the This argument ignores the weight given to the recitations plaintiff's petition in which it was not named as a in the sheriff's return as proof of service. defendant. Pursuant to Rule 170 of the Texas Rules of Appellate Procedure, a majority of the court grants HN3 The return of service is not a trivial, formulaic Petitioner's application for writ of error and, without document. It has long been considered prima facie Page 2 of 3 884 S.W.2d 151, *152; 1994 Tex. LEXIS 130, **3

evidence of the facts recited therein. Pleasant Homes v. service is properly accomplished. Tex. R. Civ. P. 99(a). Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989); This responsibility extends to seeing that service is Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908, 909 (1889) properly reflected in the record. The Rules of Civil ("The return of the officer imports absolute verity, and Procedure allow for liberal amendment of the return of was sufficient to authorize the rendition of judgment service to show the true facts of service. Tex. R. Civ. P. upon default . . . ."). See also Gerland's [**4] Food Fair, 118. If the facts as recited in the sheriff's return, Inc. v. Hare, 611 S.W.2d 113, 116 (Tex. Civ. pre-printed or otherwise, are incorrect and do not show App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.); proper service, the one requesting service must amend Pierce-Fordyce Oil Ass'n v. Staley, 190 S.W. 814, 815 the return prior to judgment. Under the current state of (Tex. Civ. App.--Amarillo 1916, no writ). The recitations the record, the only proof that Primate Construction was in the return of service carry so much weight that they served with anything at all is a return which recites cannot be rebutted by the uncorroborated proof of the service of a pleading in which it had not been sued. moving party. Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d Proper service not being affirmatively shown, there is 206, 209 (Tex. 1950); Gatlin, 11 S.W. at 909; error on the face of the record, and the court of appeals Pierce-Fordyce, 190 S.W. at 815. The weight given to erred in holding otherwise. Pursuant to Rule 170 of the the return is no less when the recitations impeach the Texas Rules of Appellate Procedure, a majority of the judgment than when they support it. 1 court grants the application for writ [**6] of error of Primate Construction Co., Inc. and, without hearing oral [**5] The officer's return does not cease to be prima argument, reverses the judgment of the court of appeals facie evidence of the facts of [*153] service simply and remands the cause to the trial court. because the facts are recited in a form rather than filled in by the officer. HN4 It is the responsibility of the one OPINION DELIVERED: September 15, 1994 requesting service, not the process server, to see that

1 Primate Construction also argues that the record does not demonstrate the authority of person served to accept service of process on its behalf; however, the Court of Appeals correctly decided this point. The Sheriff's return recited that the person served was Primate Construction's registered agent. A registered agent is authorized to accept service of process for the corporation. Tex. Bus. & Com. Code Ann. § 2.11 (Vernon 1980). The return is prima facie evidence of a person's status as a registered agent in the same way that it is prima facie evidence of a corporate officer's status. See Pleasant Homes, Inc. v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989). Page 3 of 3 | | Caution As of: April 7, 2015 5:58 PM EDT

Quaestor Invs., Inc. v. Chiapas Supreme Court of Texas July 1, 1999, Opinion Delivered No. 98-0835

Reporter 997 S.W.2d 226; 1999 Tex. LEXIS 85; 42 Tex. Sup. J. 1016

QUAESTOR INVESTMENTS, INC., PETITIONER v. With only 14 days remaining in its six-month window to STATE OF CHIAPAS, A STATE OF THE UNITED appeal the default judgment, respondent removed the MEXICAN STATES, RESPONDENT case to federal court, which suspended the limitations period. The federal court found the removal to be Prior History: [**1] ON PETITION FOR REVIEW untimely, and remanded the action back to state court. FROM THE COURT OF APPEALS FOR THE FIRST Respondent filed its writ of error eight months later. The DISTRICT OF TEXAS. court held that the appeals timetable recommenced upon the re-vesting of jurisdiction in the state court, Disposition: Vacated the judgment of the court of which occurred when the federal court executed the appeals, and dismissed appeal. remand order and mailed a copy to the state court. The court rejected the lower court's reasoning that under Core Terms Tex. R. Civ. P. 237a, the timetable did not recommence until the party seeking remand gave notice to the other party. Accordingly, the court vacated the judgment of state court, remand order, timetable, court of appeals, the lower court and dismissed respondent's writ of error. writ of error, mailed, federal district court, certified copy, federal court, revesting, default judgment, writ petition, Outcome recommence The court vacated the judgment that denied petitioner Case Summary investment company's motion to dismiss respondent Mexican state's writ of error to appeal. The court found Procedural Posture that the appellate timetable recommenced when the federal court executed the remand order and mailed a Petitioner investment company sought review of a copy to the state court. Finding that respondent failed to judgment from the Court of Appeals for the First District file the writ of error within six months of that event, the of Texas, which denied petitioner's motion to dismiss court dismissed respondent's appeal. respondent Mexican state's writ of error to appeal a default judgment. Petitioner asserted that the writ of LexisNexis® Headnotes error was not filed within the six-month time period required under Tex. R. App. P. 59.1, following an attempt Civil Procedure > Appeals > Appellate Jurisdiction > Final by respondents to remove the case to federal court. Judgment Rule

Overview Governments > Legislation > Statute of Limitations > Time Limitations Judgment reversed against petitioner investment company's motion to dismiss for want of jurisdiction HN1 The four elements necessary for review by writ of after respondent Mexican state filed a writ of error to error are: (1) the petition must be brought within six appeal a default judgment. The court held that the writ months of the date of judgment; (2) by a party to the suit; of error was not filed within the required six-month time (3) who did not participate in the trial; and (4) error must period of Tex. R. App. P. 59. Petitioner's obtained a be apparent from the face of the record. The six-month default judgment against respondent in state court. time limit is mandatory and jurisdictional. 997 S.W.2d 226, *226; 1999 Tex. LEXIS 85, **1

Civil Procedure > ... > Removal > Postremoval Remands > of jurisdiction, arguing that the petition for review was General Overview not timely filed. Thus, the question in this case is when Civil Procedure > ... > Removal > Postremoval Remands > did the appellate timetable recommence after remand? Jurisdictional Defects The court of appeals held that the timetable did not recommence until the party seeking remand had given Governments > Courts > Clerks of Court notice to the other party in the case. State of Chiapas v. HN2 Remanding a case to state court terminates the Quaestor Investments, Inc., 982 S.W.2d 144. We jurisdiction of a federal district court over that case. disagree and hold that the appellate timetable There is no requirement that the state court take any recommences upon the revesting of jurisdiction in the action to reassert jurisdiction. In answering the question state court, which occurs when the federal district court of when a jurisdictional transfer occurs between federal executes the remand order and mails a certified copy of and state court, most courts have looked to 28 U.S.C.S. the remand order to the state court. We conclude in this § 1447(c), which provides, in part, that: a certified copy case that the State [**2] of Chiapas failed to file its of the order of remand shall be mailed by the clerk to the petition for writ of error within the time frame provided by clerk of the State court. The State court may thereupon the Texas Rules of Appellate Procedure, and accordingly proceed with such case. These courts have interpreted vacate the judgment of the court of appeals and dismiss this language to mean that the federal court loses the appeal. jurisdiction once the federal court clerk has mailed a During the mid-1980s, Quaestor Investments, Inc., a certified copy of the remand order to the state court Texas corporation, purchased coffee from cooperatives clerk. located in the State of Chiapas, a State of the United Mexican States. After conflicts in their business Civil Procedure > ... > Removal > Postremoval Remands > General Overview relationship, Quaestor sued the cooperatives in a Texas district court in 1986. The cooperatives did not answer, Civil Procedure > ... > Removal > Postremoval Remands > and the court granted a default judgment for Quaestor. Jurisdictional Defects In March 1994, Quaestor sued the State of Chiapas, HN3 Looking to the language of 28 U.S.C.S. § 1447(c), alleging fraud and conspiracy to prevent Quaestor from as well as § 1447(d), which makes § 1447(c) remands executing the default judgment on the cooperatives' unappealable, courts recognize the need for a assets. Chiapas did not answer. On April 19, 1995, the determinable jurisdictional event after which the state court granted a default judgment for Quaestor, and in court can exercise control over the case without further May 1995, Quaestor began proceedings to collect on its fear of further federal interference. Courts have then judgment. identified the mailing of the certified copy of the remand order as the key jurisdictional event, because a remand On October 5, 1995, Chiapas removed the lawsuit to order is not self-executing. federal court pursuant to 28 U.S.C. § 1441(d). The federal district court ruled that the removal was untimely Opinion and on December 28, 1995, remanded the case to state court pursuant to 28 U.S.C. § 1447(c). On February 2, [*227] Per Curiam [**3] 1996, Chiapas appealed the remand order to the United States Court of Appeals for the Fifth Circuit, With fourteen days remaining in its six-month window to which dismissed the appeal for want of jurisdiction on appeal a default judgment by writ of error, the State of August 16, 1996. Chiapas removed this case to federal district court. The federal district court remanded to state district court On August 29, 1996, Chiapas filed a petition for writ of pursuant to 28 U.S.C. § 1447(c). Approximately eight error to the court of appeals. 1 Quaestor moved the months later, Chiapas filed its petition for writ of error. court to dismiss Chiapas's petition for writ of error as Quaestor Investments, Inc., moved to dismiss for want untimely. The court of appeals overruled Quaestor's

1 This case concerns a writ of error appeal filed in 1996 under rule 45 of the former Rules of Appellate Procedure. See TEX. R. APP. P. 45, 49 Tex. B.J. 570 (Tex. 1986, superseded 1997). Restricted appeals replace writ of error appeals under the new Rules of Appellate Procedure. See TEX. R. APP. P. 30. Page 2 of 4 997 S.W.2d 226, *227; 1999 Tex. LEXIS 85, **3

motion to dismiss and later reversed the default the court to reinstate an appeal stayed by a bankruptcy judgment and remanded the case to the trial court. 982 proceeding. Concluding that these rules require S.W.2d at 144-145. Quaestor petitioned for review of affirmative action before procedural timetables restart, the court of appeals' judgment, complaining about the the court similarly determined that the appellate denial of its motion to dismiss. timetable should not recommence until the party seeking remand [**6] acts affirmatively by giving notice to the HN1 The four elements necessary for review by writ of other party. While we agree with the court of appeals' error are: (1) [**4] the petition must be brought within determination of when state court jurisdiction revested, six months of the date of judgment; (2) by a party to the we disagree that we must look any further than that date suit; (3) who did not participate in the trial; and (4) error to determine when the timetable for filing a writ of error must be apparent from the face of the record. See appeal began to run again. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985). The six-month time limit is mandatory and jurisdictional. HN2 Remanding a case to state court terminates the See Linton v. Smith, 137 Tex. 479, 154 S.W.2d 643, 645 jurisdiction of a federal district court over that case. See (Tex. 1941). Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir. 1992); Browning v. Navarro, 743 F.2d 1069, 1078 (5th Quaestor does not contest that filing the removal Cir. 1984). There is no requirement that the state court suspended the appellate timetable. And Chiapas take any action (e.g., entering the order in the state acknowledges that when [*228] it removed the case to court docket) to reassert jurisdiction. See Mathewson v. federal court on October 5, 1995, it had fourteen days Aloha Airlines, Inc., 82 Haw. 57, 919 P.2d 969, 985-86 left to file its petition for writ of error. Thus, the only issue (Haw. 1996). In answering the question of when a presented is when the appellate timetable began to run jurisdictional transfer occurs between federal and state again. court, most courts, including the court of appeals in this case, have looked to 28 U.S.C. § 1447(c), which Quaestor argues that the timetable recommenced when provides, in part, that: "A certified copy of the order of the federal district court entered its remand order remand shall be mailed by the clerk to the clerk of the (December 28, 1995) or when the state court State court. The State court may thereupon proceed acknowledged receipt of the remand order (January 10, with such case." These courts have interpreted this 1996). Chiapas responds that the timetable language to mean [**7] that the federal court loses recommenced when the Fifth Circuit dismissed the jurisdiction once the federal court clerk has mailed a appeal of the remand order (August 16, 1996) or when certified copy of the remand order to the state court Chiapas mailed a copy of the remand order to the state clerk. See McClelland v. Gronwaldt, 155 F.3d 507, 513 district clerk (September 6, 1996). Either of Chiapas' & n.15 (5th Cir. 1998); Trans Penn Wax Corp. v. dates would make its August [**5] 29, 1996 writ of error McCandless, 50 F.3d 217, 225 (3d Cir. 1995); Hunt, 961 appeal timely while either of Quaestor's dates would F.2d at 1081; see also Seedman v. United States Dist. make the appeal untimely. Court, 837 F.2d 413, 414 (9th Cir. 1988); Browning, 743 F.2d at 1078; Federal Deposit Ins. Corp. v. Santiago The court of appeals determined that the state court Plaza, 598 F.2d 634, 636 (1st Cir. 1979). But see In re reacquired jurisdiction on the date the federal court Lowe, 102 F.3d 731, 735 (4th Cir. 1996) (holding that clerk mailed a certified copy of the remand order to the jurisdiction returns to the state court when the district state court clerk. The court further concluded that when court enters the remand order); New Mexico ex rel. the appellate timetable recommenced was determined Village of Los Ranchos De Albuquerque v. City of not by the revesting of jurisdiction, but rather depended Albuquerque, 889 P.2d 204, 206-07 (N.M. Ct. App. upon the procedural implications of that revesting under 1993) (same). Texas law. The court looked to Texas procedural rules for its answer: (1) Rule of Civil Procedure 237a, which In McCandless, the Third Circuit Court of Appeals provides that a defendant need not answer in a explained the rationale behind the general rule. HN3 remanded case until fifteen days after the plaintiff files Looking to the language of section 1447(c), as well as the remand order with the state court and gives written section 1447(d), which makes section 1447(c) remands notice of the filing to the adverse parties' attorneys; and [*229] unappealable, the court recognized the need for (2) current Rule of Appellate Procedure 8, which a "determinable jurisdictional event after which the state provides that affirmative action is required by a party or court can exercise control over the case without further Page 3 of 4 997 S.W.2d 226, *229; 1999 Tex. LEXIS 85, **7

fear [**8] of further federal interference." 50 F.3d at 225. the completed remand [**9] begins it again. No Texas The court then identified the mailing of the certified copy procedural rule imposes a notice requirement under of the remand order as the "key jurisdictional event," these circumstances. The court of appeals erred when because a remand order is not self-executing. Id. it inferred from civil procedure rule 237a and appellate rule 8 that any further affirmative action was needed. We agree with the Third Circuit's reasoning, and following the majority rule as did the court of appeals, In support of its motion to dismiss, Quaestor provided a we hold that jurisdiction revests in the state court when certified copy of the federal court docket sheet in this the federal district court executes the remand order and case. The docket sheet indicates that the remand order mails a certified copy to the state court. To the extent was signed and mailed on December 28, 1995. that earlier Texas court of appeals cases indicate that Therefore, jurisdiction revested in the state court and jurisdiction revests when the federal court executes the the appellate timetable recommenced on that day. The remand order, we disapprove of that language. See time for appealing by writ of error appeal expired Brogdon v. Ruddell, 717 S.W.2d 675, 677 (Tex. App. -- fourteen days later on January 11, 1996. Because the Texarkana 1986, writ ref'd n.r.e.); Reimer v. Scott, 666 State of Chiapas did not file its writ of error appeal until S.W.2d 384, 385 (Tex. App. -- Houston [14th Dist] 1984, August 29, 1996, the court of appeals did not have writ dism'd); Brown v. State Farm Mut. Auto. Ins. Co., jurisdiction to hear the appeal. Accordingly, without 449 S.W.2d 93, 96 (Tex. Civ. App. -- Fort Worth 1969, no hearing oral argument, the Court grants Quaestor's writ). petition for review, vacates the judgment of the court of appeals, and dismisses the appeal. See TEX. R. APP. We are further persuaded that nothing more is required P. 59.1. to recommence the appellate timetable than the state court's reaquiring jurisdiction over a case. Just as the OPINION DELIVERED: July 1, 1999 filing of the removal suspends the appellate timetable,

Page 4 of 4 | | Caution As of: April 7, 2015 5:59 PM EDT

Ragsdale v. Progressive Voters League Supreme Court of Texas December 31, 1990, Delivered No. D-0171

Reporter 801 S.W.2d 880; 1990 Tex. LEXIS 156; 34 Tex. Sup. J. 254

PAUL RAGSDALE, Petitioner v. PROGRESSIVE Outcome VOTERS LEAGUE, Respondent The court reversed the decision of the trial court which only awarded $ 150 in attorney's fees to petitioner Prior History: [**1] From Dallas County, Fifth District. election candidate. On review, the court stated that there was clear, direct and positive evidence to prove Core Terms that petitioner was entitled to a larger award for attorney's fees from respondent voter league and that attorney's fees, circumstances, contradicted, trial court, the trial court abused its discretion when it made its appeals, interested witness, Election, damages award.

Case Summary LexisNexis® Headnotes

Civil Procedure > Remedies > Costs & Attorney Fees > Procedural Posture General Overview Petitioner election candidate challenged the ruling of Civil Procedure > Appeals > Standards of Review > Abuse the District Court for Dallas County (Texas), which of Discretion granted him injunctive relief but denied him damages HN1 In awarding attorney's fees the trial court, as the and attorney's fees in his suit against respondent voter trier of fact, must take into account various factors such league for violations of the Texas Election Code. as: the nature and complexity of the case; the nature of the services provided by counsel; the time required for Overview trial; the amount of money involved; the client's interest Petitioner election candidate was seeking reelection as that is at stake; the responsibility imposed upon counsel; state representative for a particular county. Petitioner and the skill and expertise required. Ordinarily, the investigated respondent voter league's campaign allowance of attorney's fees rests with the sound activities and discovered that the campaign treasurer discretion of the trial court and will not be reversed without a showing of abuse of that discretion. had not been designated as required by the election code. Petitioner sued respondent for violations of the Evidence > ... > Testimony > Credibility of Witnesses > Texas Election Code. He was granted injunctive relief, General Overview but was denied damages and attorney's fees. On remand, the trial court awarded damages of $ 1 and $ HN2 It is the general rule that the testimony of an 150 for attorney's fees. Petitioner appealed again and interested witness, such as a party to the suit, though the court of appeals reformed the judgment holding that not contradicted, does no more than raise a fact issue to the statutory penalty of twice the amount that be determined by the jury. But there is an exception to respondent had illegally spent on the rival candidate this rule, which is that where the testimony of an was required as damages. On final review, the court interested witness is not contradicted by any other held that it was clear that the trial court abused its witness, or attendant circumstances, and the same is discretion in awarding only $ 150 for attorney's fees. clear, direct and positive, and free from contradiction, Therefore, the court remanded the cause to the trial inaccuracies, and circumstances tending to cast court for a new trial on attorney's fees. suspicion thereon, it is taken as true, as a matter of law. 801 S.W.2d 880, *880; 1990 Tex. LEXIS 156, **1

Evidence > ... > Testimony > Credibility of Witnesses > Opinion by: PER CURIAM General Overview Evidence > ... > Credibility of Witnesses > Impeachment > Opinion General Overview

HN3 The exception to the interested witness rule is [*881] Paul Ragsdale sued the Dallas County especially true where the opposing party has the means Democratic Progressive Voters League for violations of and opportunity of disproving the testimony, if it is not the Election Code. 1 He was granted injunctive relief, true, and fails to do so. In other words, failure to but was denied damages and attorney's fees. 743 contradict is another factor to be considered by the S.W.2d 338. On remand the trial court awarded court; but it does not necessarily preclude the holding damages of $ 1 and $ 150 for attorney's fees. Ragsdale that a fact issue is raised when there are circumstances again appealed and the court of appeals reformed the in evidence tending to discredit or impeach the judgment holding that the statutory penalty of twice the testimony of the interested witness. amount that the committee had illegally spent on the rival candidate is required; and, holding an abuse of Civil Procedure > Judgments > Pretrial Judgments > discretion, severed the attorney's fees portion General Overview remanding that issue for a new trial. 790 S.W.2d 77. We Civil Procedure > ... > Pretrial Judgments > Default & affirm the judgment of the court of appeals regarding Default Judgments > General Overview the damages issue, but reverse and render judgment for Ragsdale awarding the amount of attorney's fees Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments that evidence at trial showed to be reasonable and uncontroverted in the amount of $ 22,500. Civil Procedure > Remedies > Costs & Attorney Fees > General Overview [**2] Paul Ragsdale was seeking reelection as state Evidence > ... > Testimony > Credibility of Witnesses > representative from Dallas County District 110. The General Overview PVL was organized in 1936 as an educational purpose group. The group had evolved to the point that it HN4 In order for the court to award an amount of sponsored activities that promoted awareness of issues attorneys' fees as a matter of law, the evidence from an affecting minorities. Although the PVL had previously interested witness must not be contradicted by any endorsed Paul Ragsdale, it was active in the primary other witness or attendant circumstances and the same election in 1986 supporting an opponent. Ragsdale must be clear, direct and positive, and free from investigated the PVL's campaign activities and contradiction, inaccuracies and circumstances tending discovered that the campaign treasurer had not been to case suspicion thereon. The court, as a trier of fact, designated as required by the Election Code. Ragsdale may award attorneys' fees as a matter of law in such filed suit seeking an injunction and damages. This circumstances, especially when the opposing party has decision today is subsequent to two trials and their the means and opportunity of disproving the testimony attendant appeals. or evidence and fails to do so. In default judgment situations, the same rule applies if there is evidence The court of appeals has correctly awarded the statutory presented to the trial court which meets the same penalty for the violations of the Election Code. The criteria. Code also authorizes an award of reasonable attorney's fees. 2 Uncontroverted evidence was presented at trial Counsel: Hughes, Mr. Jerry Lee, Bliss & Hughes, that the attorney's fees for this cause of action, which Dallas, Texas, Collins, Mr. John E., Dallas, Texas, for began with a temporary injunction in April 1986, totaled Petitioner. $ 22,500. HN1 In awarding attorney's fees the trial court, as the trier of fact, must take into account various Hicks, Sr., Mr. Donald W., Law Ofcs of Donald W. Hicks, factors such as: the nature and complexity of the case; Sr., P.C., Dallas, Texas, for Respondent. the nature [**3] of the services provided by counsel; the

1 The suit was filed under sections 251.002(f)(2), 251.002(g) and 251.008(a) of the Texas Elation Code. Now codified at Tex. Elec. Code Ann. § 253.031 (Vernon's Supp. 1990). 2 Now codified at § 253.131(d)(2) Tex. Elec.Code Ann. (Vernon's Supp. 1990). Page 2 of 3 801 S.W.2d 880, *881; 1990 Tex. LEXIS 156, **3

time required for trial; the amount of money involved; general rule, we do not mean to imply that in every case the client's interest that is at stake; the responsibility when uncontradicted testimony is offered it mandates imposed upon counsel; and the skill and expertise an award of the amount claimed. For example, even required. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 though the evidence might be uncontradicted, if it is S.W.2d 155 (1945) (time required); Vaughn v. Gunter, unreasonable, incredible, or its belief is questionable, 458 S.W.2d 523 (Tex.Civ.App. -- Dallas), aff'd, 461 then such evidence would only raise a fact issue to be S.W.2d 599 (Tex. 1970) (client's interest and money determined by the trier of fact. HN4 In order for the court involved); Weatherly v. Longoria, 292 S.W.2d 139 (Tex. to award an amount of attorneys' fees as a matter of Civ. App. -- San Antonio 1956, writ ref'd n.r.e.) (skill law, the evidence from an interested witness must not required). Accord Tuthill v. Southwestern Public Service be contradicted by any other witness or attendant Co., 614 S.W.2d 205 (Tex Civ. App. -- Amarillo 1981, circumstances and the same must be clear, direct and writ ref'd n.r.e.). Ordinarily, the allowance of attorney's positive, and free from contradiction, inaccuracies and fees rests with the sound discretion of the trial court and circumstances tending to case suspicion thereon. The will not be reversed without a showing of abuse of that court, as a trier of fact, may award attorneys' fees as a discretion. matter of law in such circumstances, especially when the opposing party has the means and opportunity of [*882] HN2 It is the general rule that the testimony of an disproving the testimony or evidence and fails to do so. interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to In default judgment situations, the same rule applies if be determined by the jury. But there is an exception to there is evidence presented to the trial court which this rule, which is that where the testimony of an meets the same criteria. In this situation the evidence interested witness is not contradicted by any other may be uncontradicted, but the trial judge could find witness, [**4] or attendant circumstances, and the some of the [**6] claimed fees to be unreasonable, same is clear, direct and positive, and free from unwarranted, or some other circumstance which would contradiction, inaccuracies, and circumstances tending make an award of the uncontroverted claim wrong. In to cast suspicion thereon, it is taken as true, as a matter the present case it is clear that the trial court abused its of law. discretion in awarding only $ 150 in attorney's fees. Ragsdale's attorneys testified as to the time involved, Cochran v. Wool Growers Central Storage Co., 140 the nature of the services that were rendered, and the Tex. 184, 166 S.W.2d 904, 908 (1942). reasonableness of the fees charged. This evidence was uncontroverted. We hold the evidence is clear, direct Accord, McGilliard v. Kuhlmann, 722 S.W.2d 694 (Tex. and positive, and not contradicted by any other witness 1986). or attendant circumstances, and there is nothing to indicate otherwise. In the interest of judicial economy, HN3 The exception to [this] interested witness rule . . . is we reverse the judgment of the court of appeals that especially true where the opposing party has the means remanded the attorney's fees issue for a new trial and and opportunity of disproving the testimony, if it is not render judgment for Ragsdale. true, and fails to do so . . . . In other words, failure to contradict is another factor to be considered by the Accordingly, we grant the application of Paul Ragsdale, court; but it does not necessarily preclude the holding and pursuant to Tex. R. App. P. 170, without hearing oral that a fact issue is raised when, as here, there are argument, a majority of this court affirms that portion of circumstances in evidence tending to discredit or the court of appeals judgment awarding damages and impeach the testimony of the interested witness. penalties under the Election Code, and reverses that portion which remanded the cause to the trial court for a Anchor Casualty Co. v. Bowers, 393 S.W.2d 168, new trial on attorney's fees. Judgment is rendered in 169-170 (Tex. 1965)(emphasis in original). favor of Ragsdale for attorney's fees [**7] in the amount of $ 22,500. [**5] While the present case fits the exception to the

Page 3 of 3 Page 1

Positive As of: Mar 30, 2015

REED ELSEVIER, INC. d/b/a LEXIS NEXIS, Appellant v. CARROLL- TON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, COUNTY OF DALLAS, AND CITY OF FARMERS BRANCH, Appellees

No. 05-04-00821-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

180 S.W.3d 903; 2005 Tex. App. LEXIS 10313

December 12, 2005, Opinion Filed

SUBSEQUENT HISTORY: Released for Publica- Reed Elsevier, Inc. d/b/a Lexis Nexis brings a re- tion January 17, 2005. stricted appeal from a default judgment in favor of Car- Petition for review denied by Carrollton-Farmers rollton-Farmers Branch Independent School District Branch Indep. Sch. Dist. v. Reed Elsevier, Inc., 2006 Tex. (CFBISD), County of Dallas, and City of Farmers LEXIS 452 (Tex., May 5, 2006) Branch for delinquent property taxes. Reed Elsevier contends there is fatal error shown on the face of the PRIOR HISTORY: [**1] On Appeal from the return of service. Reed Elsevier argues service of process 191st Judicial District Court, Dallas County, Texas. Trial was defective because the return does not identify the Court Cause No. TX03-41181-T-J. person served as an agent of its corporate registered agent. We agree and we reverse the trial court's judgment DISPOSITION: REVERSED and REMANDED. and remand the cause for further proceedings consistent with this opinion. COUNSEL: For APPELLANT: Mr. Bryan P. Neal, I. Factual and Procedural Background Thompson & Knight, P.C., Dallas, TX. In its original petition for delinquent ad valorem For APPELLEE: Mr. Daniel K. Bearden, Dallas, TX; taxes, CFBISD described defendant as follows: Gregg M. McLaughlin, Perdue, Brandon, Fielder, Collins & Mott, L.P., Arlington, TX; Edward Lopez, Jr., Shelia Reed Elsevier, Inc. d/b/a Lexis Nexis Fuqua Carter, Linebarger Goggan Blair Sampson, LLP, Successor in Interest to Courtlink Dallas, TX. Corporation d/b/a JusticeLink, JUDGES: Before Justices Moseley, Francis, and Maz- by serving Registered Agent, Lexis zant. Opinion By Justice Moseley. Document Services, Inc., at:

OPINION BY: JIM MOSELEY 3610-2 Josey [**2] Lane, Suite # 223 Carrollton, TX 75007 OPINION [*904] Opinion By Justice Moseley Page 2 180 S.W.3d 903, *; 2005 Tex. App. LEXIS 10313, **

The citation for personal service is addressed to the same been considered prima facie evidence of the facts recited above description and address for defendant. The return therein. Id. at 152. In a restricted appeal, defective ser- of service indicates service was completed by "delivering vice of process constitutes error apparent on the face of to the within named Reed Elsevier Inc DBA Lexis Nexis the record. See id. at 153. Successor in Interest to Courtlink Corporation DBA Jus- A domestic or foreign corporation authorized to ticeLink By delivering to Reg Agent Lexis Document transact business in Texas may be served with process Services Inc By delivering to Danielle Smith." through its president, any vice president, or its registered Reed Elsevier did not file an answer or appear in agent. See TEX. BUS. CORP. ACT ANN. Arts. 2.11, 8.10 court and a default judgment was signed on December 3, (Vernon 1980). A corporation may act as the registered 2003. Reed Elsevier filed a notice of restricted appeal, agent for another domestic or foreign corporation. See with a motion for extension of time to file restricted ap- TEX. BUS. CORP. ACT ANN. Art. 2.09 (Vernon Supp. peal, on June 16, 2004. Appellant's motion for extension 2004-05), Art. 8.08 (Vernon 1980). Although a corpora- was granted by this Court, and its restricted appeal tion may act as the registered agent for another corpora- deemed timely. tion, [**5] a corporation is not a person capable of accepting process, and must be served through its agents. II. Restricted Appeal See All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 727 (Tex. App.-Fort Worth 2003, no pet.). A restricted appeal must: (1) be brought within six The record must show whether the person served was in months after the trial court signs the judgment; (2) by a fact such an agent for the corporation acting as the regis- party; (3) who did not participate in the trial; and (4) the tered agent. See Nat'l. Med. Enter. of Texas, Inc. v. error complained of must be apparent on the face of the Wedman 676 S.W.2d 712, 715 (Tex. App.-El Paso 1984, record. TEX. RS. APP. P. 26.1(c), 30; Sutton v. Hisaw & no writ) (holding domestic corporate defendant was Assocs. [*905] Gen. Contractors, Inc., 65 S.W.3d 281, properly served where return identified person served 284 (Tex. App.-Dallas 2001, pet. denied). For purposes with citation as registered agent for defendant's corporate [**3] of a restricted appeal, the face of the record con- registered agent); White Motor Co. v. Loden, 373 S.W.2d sists of all the papers on file before the judgment as well 863, 865 (Tex. Civ. App.-Dallas 1963, no writ) (holding as any reporter's record. Norman Communications v. record did not show person served with citation was au- Texas Eastman Co., 955 S.W.2d 269, 270, 41 Tex. Sup. thorized agent for accepting service for corporate regis- Ct. J. 83 (Tex. 1997). In this case, the first three elements tered agent for foreign corporation defendant). of a restricted appeal are not contested. Rather the dis- pute concerns whether there is error on the face of the IV. Discussion record. 1 In this case, the return does not indicate the capacity 1 There is no reporter's record in this appeal. of "Danielle Smith" or why she was served with process. On the face of clerk's record, we can not tell Her name is handwritten on the face of the citation whether Reed Elsevier and its registered agent without designation of her status with Lexis Document Lexis Document Services, Inc. are domestic or Services, Inc. The return merely recites service [**6] foreign corporations. However, such status is not "by delivering to Danielle Smith," without explaining her critical to our resolution of this restricted appeal. authority to receive service. Neither the return nor any Cf. Infra-Pak (Dallas), Inc. v. Narmour, 852 other portion of the record designates her authority to S.W.2d 565, 567 (Tex. App.-Dallas 1992, no writ) receive service on behalf of Reed Elsevier's registered (concluding in regular appeal no distinction be- agent. Without indication of her capacity to receive ser- tween proof of proper service on a foreign and a vice on the face of [*906] the record, the granting of domestic corporation). the default judgment was improper. See Primate Constr. Inc., 884 S.W.2d at 153; see also Nat'l. Med. Enter. of III. Applicable Law on Service of Process Texas, Inc., 676 S.W.2d at 715; White Motor Co., 373 S.W.2d at 865. A default judgment cannot withstand direct attack by a defendant [**4] who complains he was not served V. Conclusion in strict compliance with applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60 Having determined there is error on the face of the (Tex. 1990). In a direct attack on a default judgment, record regarding proper service on Reed Elsevier's regis- there are no presumptions in favor of valid issuance, ser- tered agent, we find the trial court lacked jurisdiction to vice, and return of citation. See Primate Constr. Inc. v. enter the default judgment against Reed Elsevier. Find- Silver, 884 S.W.2d 151, 152, 37 Tex. Sup. Ct. J. 1216 ing this error dispositive of this appeal, we do not need to (Tex. 1994) (per curiam). The return of service has long address appellant's remaining issues. See TEX. R. APP. Page 3 180 S.W.3d 903, *; 2005 Tex. App. LEXIS 10313, **

P. 47.1. We reverse the trial court's judgment and re- JIM MOSELEY mand this case for further proceedings. JUSTICE Page 1

Positive As of: Mar 30, 2015

MARIA REGALADO, D/B/A, FRED REGALADO BAIL BONDS, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-95-271-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI

934 S.W.2d 852; 1996 Tex. App. LEXIS 4973

November 7, 1996, delivered November 7, 1996, filed

PRIOR HISTORY: [**1] On appeal from the because the citation and service of process were defec- 275th District Court of Hidalgo County, Texas. tive. We affirm. Maria Regalado, d/b/a Fred Regalado Bail Bonds, DISPOSITION: Affirmed surety on the bond of Armando Pineda, appeals from a default judgment entered for the State in a bond forfei- ture proceeding. Pineda failed to appear at arraignment, a COUNSEL: For APPELLANT: Crispin (C.J.) Quinta- judgment nisi issued, and service of process was effected nilla, III, Quintanilla & Palacios, Attorneys at Law, on appellant by way of scire [**2] facias command- McAllen, TX. Keith C. Livesay, Attorney at Law, ing her to appear and show cause why the judgment of McAllen, TX. forfeiture should not become final. Appellant failed to appear or answer the scire facias and a default judgment For APPELLEE: Rene Guerra, District Attorney, Theo- was rendered against her. dore C. Hake, William McPherson, Traci A. Sellman, Assistant District Attorneys, Edinburg, TX. Upon learning of entry of the default judgment, ap- pellant filed a motion for new trial seeking to have the JUDGES: Before Chief Justice Seerden and Justices default judgment set aside. After a hearing, the trial court Dorsey and Chavez. Opinion by Chief Justice Seerden orally granted the motion for new trial; however, the trial court signed the written order granting the new trial after OPINION BY: ROBERT J. SEERDEN its plenary power to do so had lapsed. Upon motion by the State, the trial court, because of lack of jurisdiction, OPINION subsequently rescinded the order granting the new trial. Appellant now attacks the default judgment by a writ of [*853] OPINION error to this court. Specifically, appellant raises two Opinion by Chief Justice Seerden points of error challenging the validity of the service of process in the case below. Maria Regalado, appellant, files this appeal by writ of error, asking this court to overturn a default judgment To prevail in her appeal by writ of error, appellant entered against her. By two points of error, she asserts must (1) file the writ within six months after the final that the trial court erred in granting a default judgment judgment is signed; (2) be a party to the lawsuit; (3) not Page 2 934 S.W.2d 852, *; 1996 Tex. App. LEXIS 4973, **

have participated in the actual trial of the case; and (4) written return of service said "Michael Poprowski" or show error apparent from the face of the record. Stubbs "Michael Popkowski"). v. Stubbs, 685 S.W.2d 643, 644 (Tex. [**3] 1985); Additionally, both parties point out that a return Flores v. H.E. Butt Grocery Co., 802 S.W.2d 53, 55 (Tex. should be given a fair, reasonable, and natural construc- App.--Corpus Christi 1990, no writ). The State concedes tion to its intent and meaning. Brown-McKee, Inc. v. J. that the first three requirements were met. Therefore, at F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ. issue is whether there is error apparent on the face of the App.--Texarkana 1975, no writ)(in a writ of error pro- record. ceeding directly attacking default judgment, the return By her first point of error, appellant claims that the should receive a fair, reasonable, and natural construc- service of process was defective because she was not tion, and effect given to its plain intent and meaning). personally served with the scire facias. Specifically, she See also Garza v. Zavala, 905 S.W.2d 312, 313 (Tex. contends that the hand-written notation "c/o Maria Re- App.--San Antonio 1995, no writ); Bavarian Autohaus, galado" on the return of the citation, when given a fair, Inc. v. Holland, 570 S.W.2d 110, 114 (Tex. Civ. reasonable and natural construction, indicates that pro- App.--Houston [1st Dist.] 1978, no writ). In fact, both cess was not served on her personally. parties concede that the validity of appellant's first point of error (as well as the service of [**6] process in this When a default judgment is attacked by writ of er- case) is contingent upon the fair and reasonable con- ror, it is essential that the record affirmatively show strict struction of the "c/o" symbol. compliance with the provided manner and mode of ser- vice of process. Primate Constr. v. Silver, 884 S.W.2d In the case at hand, the citation names "Maria Rega- 151, 152 (Tex. 1994); McKanna v. Edgar, 388 S.W.2d lado, DBA Fred Regalado Bail Bond" as the defendant 927, 929 (Tex. 1965); HB & WM, Inc. v. Smith, 802 and states that a true copy was "delivered to SURETY S.W.2d 279, 281 (Tex. App.--San Antonio 1990, no MARIA REGALADO on the 15 day of 12, 1994." The writ). A default judgment cannot withstand a direct at- return states that a true copy of the citation was delivered tack by a defendant who shows that he was not served in to "Name: c/o Maria Regalado." In our opinion, the only strict compliance with the law. Wilson v. Dunn, 800 fair and reasonable construction of the officer's return S.W.2d 833, 836 (Tex. [**4] 1990). Failure to affirma- indicates that the executing officer left the citation in the tively show strict compliance with the rules of civil pro- care of Maria Regalado; that is, in Maria Regalado's own cedure renders the attempted service invalid, of no effect, hands. We conclude that the return and the citation, giv- and incapable of supporting a default judgment. Uvalde ing both a fair, reasonable, and natural interpretation, Country Club v. Martin [*854] Linen Supply Co., Inc, show with reasonable certainty that the citation was per- 690 S.W.2d 884, 885 (Tex. 1985). Accordingly, when sonally served on Maria Regalado. Accordingly, we hold such strict compliance is NOT demonstrated, there is that the record affirmatively shows that Maria Regalado, error on the face of the record, and reversal of the judg- doing business of Fred Regalado Bail Bonds, was per- ment is warranted. sonally served in strict compliance with the provided manner and mode of service of process. Appellant's first Strict compliance, however, does not require "obei- point of error is overruled. sance to the minutest detail." Herbert, 915 S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995, no writ); Ortiz In her second point of error, appellant contends that v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, the trial court erred in granting a default judgment be- 613 (Tex. App.--Corpus Christi 1996, writ requested). As cause the citation [**7] was improper. Appellant main- long as the citation and return show, with reasonable tains that the citation is improper because it implies that certainty, that the citation was served on the defendant in a petition was being served when, in fact, no petition was the suit, service of process will not be invalidated. See either filed or served. Consequently, according to appel- Ortizv. Avante Villa at Corpus Christi, Inc., 926 S.W.2d lant, the resulting default judgment rendered herein was at 613 (the omission of the accent mark and the substitu- also improper. We disagree. tion of the symbol " at " for the word "at" are akin to the Keeping in mind the need to show strict compliance errors that do not invalidate service); Payne & Keller Co. with the rules of service and citation in the face of a di- v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [**5] rect attack on a default judgment (see above), we note [14th Dist.] 1987, writ ref'd n.r.e.) (judgment upheld that a bail bond forfeiture proceeding is a criminal pro- where petition and citation reflected registered agent ceeding governed by the Texas Code of Criminal Proce- "Philippe Petitfrere," the return reflected "Philipee Pet- dure. TEX. CODE CRIM. PROC. ANN. art. 22 (Vernon itfreere"); Popkowsi v. Gramza, 671 S.W.2d 915, 918 1989 and Supp. 1997). All forfeiture proceedings de- (Tex. App.--Houston [1st Dist.] 1984, no writ) (judgment clared upon a bond shall be governed by the same rules upheld where there was dispute of fact whether hand- that apply to other civil suits. See TEX. CODE CRIM. Page 3 934 S.W.2d 852, *; 1996 Tex. App. LEXIS 4973, **

PROC. ANN. art. 22.10 (Vernon 1989 and Supp. 1997); support [**9] of her claim that the citation and the re- Dees v. State, 865 S.W.2d 461, 462 (Tex. Crim. App. sulting default judgment rendered herein is improper. 1993); State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. We find that the citation in this case was in the form App. 1990). Furthermore, in a bond forfeiture proceed- provided by TEX. R. CIV. P. 99. In fact, the language ing, the citation is sufficient if it is in the form provided found in the first paragraph of the citation is the exact for citations in civil cases. [*855] TEX. CODE. CRIM. language prescribed by Rule 99. See TEX. R. CIV. P. PROC. ANN. art. 22.04 (Vernon 1989 and Supp. 1997). 99(c). Additional references to a petition, or the fact that Article 22.04 provides: the judgment nisi is referred to as a petition, do not make it any less clear that appellant was served with the ap- A [**8] citation shall be sufficient if propriate documents. 1 As stated above, "even strict it be in the form provided for citations in compliance does not require such absolute obeisance to civil cases in such court; provided, how- the minutest detail." Herbert, 915 S.W.2d at 871; Ortiz v. ever, that a copy of the judgment of for- Avante Villa at Corpus Christi, Inc., 926 S.W.2d at 613. feiture entered by the court shall be at- tached to the citation and the citation shall 1 The citation or scire facias provided by the notify the parties cited to appear and show statute constitutes the State's pleadings in a bond cause why the judgment of forfeiture forfeiture case. Blue v. State, 170 Tex. Crim. should not be made final. 449, 341 S.W.2d 917, 919 (1960); Pollock v. State, 164 Tex. Crim. 404, 299 S.W.2d 294, 296 (1956). In such a proceeding, the scire facias TEX. CODE CRIM. PROC. ANN. art. 22.04 (Vernon serves the purpose of both a petition and a cita- 1989 and Supp. 1997). tion. Hokr v. State, 545 S.W.2d 463, 467 (Tex. Significant to the resolution of this point of error, is Crim. App. 1977) (citing Hester v. State, 15 Tex- the fact that the Texas Rules of Civil Procedure com- as Ct. App. 418 (1884)). A separate petition is not mand that reference be made in a civil citation to the necessary. filed petition which commenced the suit. See TEX. R. [**10] Additionally, as required by TEX. CODE CIV. P. 99. Rule 99 provides: CRIM. PROC. ANN. art. 22.04, a copy of the judgment nisi was attached and the citation notified the parties c. Notice. The citation shall include the cited to appear and show cause why the judgment should following notice to the defendant: "You not be made final. The citation in this case was in com- have been sued. You may employ an at- pliance with the requirements of Article 22 of the Code torney. If you or your attorney do not file of Criminal Procedure. Accordingly, we find appellant's a written answer with the clerk who is- claim of a fatal defect in the citation to be without merit sued the citation by 10:00 a.m. on the and overrule appellant's second point of error. Monday next following the expiration of twenty days after you were served this ci- Having overruled all points of error, we affirm the tation and petition, a default judgment judgment of the trial court. may be taken against you." ROBERT J. SEERDEN, Chief Justice Opinion delivered and filed this the 7th day of No- TEX. R. CIV. P. 99(c). It is this exact language, along vember, 1996. with other similar references, that appellant points to in Page 1

Caution As of: Mar 30, 2015

ROSEDALE PARTNERS, LTD., Relator v. 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS, JUDGE PETER MICHAEL CURRY, and JUDGE CAROL HABERMAN, Respondents

Cause No. 04-93-00732-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

869 S.W.2d 643; 1994 Tex. App. LEXIS 344

January 12, 1994, Delivered January 12, 1994, Filed

PRIOR HISTORY: [**1] From the 166th Dis- This is an original proceeding in which the relator, trict Court of Bexar County. Trial Court No. Rosedale Partners, Ltd., is seeking to: (1) dissolve an 93-CI-03259. Peter Michael Curry and Carol Haberman, injunction enjoining a sheriff's sale and other execution Judges Presiding efforts, (2) dissolve an order granting real party's motion for new trial, and (3) reinstate previous orders allowing DISPOSITION: RELATOR'S PETITION FOR execution on real party's property. The issue presented is WRIT OF MANDAMUS DENIED. whether the orders complained of were signed after the trial court lost its plenary power over the underlying de- fault judgment. COUNSEL: For Relator: Richard Jackson, RICHARD JACKSON & ASSOCIATES, 3738 Oak Lawn, Suite The determination of whether the trial court retained 101, Dallas, TX 75219. jurisdiction to issue the complained of [**2] orders hinges on the finality of the default judgment. Relator For Respondents: Bernard Lifshutz, c/o John M. Killiam, contends the default judgment was a final judgment even 445 West Sunset Road, San Antonio, TX 78209. though it did not provide all the relief requested. The real party in interest, Bernard Lifshutz, maintains that the JUDGES: Sitting: Shirley W. Butts, Justice, Orlando judgment was interlocutory because it did not expressly Garcia, Justice, Tom Rickhoff, Justice or by implication dispose of the requests for attorney's fees and prejudgment interest. We agree that the default OPINION BY: ORLANDO GARCIA judgment did not dispose of all issues expressly or by implication and therefore is interlocutory. Thus, the trial OPINION court retained plenary power to grant the new trial and to issue the orders terminating the collection efforts. [*644] OPINION In January of 1993, Rosedale Partners, Ltd. ON RELATOR'S PETITION FOR WRIT OF (Rosedale) purchased an unpaid promissory note exe- MANDAMUS cuted by Bernard L. Lifshutz. According to Rosedale, the unpaid deficiency balance at the time it purchased the Opinion by: Orlando Garcia, Justice note was $ 7,047,841.20. On March 5, 1993, Rosedale Page 2 869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **

filed suit against Mr. Lifshutz seeking to recover: (1) the sue when a clear and adequate remedy at law exists such unpaid balance of $ 7,047,841.20, (2) interest on this as a normal appeal. The writ will issue "only in situations balance from the date of purchase until date of payment, involving manifest and urgent necessity and not for and (3) attorney's fees. On May 24, 1993, the trial court grievances that may be addressed by other remedies." Id. entered a default judgment and awarded Rosedale $ Mandamus has been granted in cases concerning the fi- 7,047,841.20, as the past due [**3] principal and inter- nality of default judgments and the granting of new trials est at the time of filing suit, and post judgment interest. after the trial court lost jurisdiction. Houston Health No motion for new trial was filed within thirty days of Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 the entry of the default judgment. (Tex. 1986); Schoenfeld v. Onion, 647 S.W.2d 954 (Tex. 1983). Following the default judgment, Rosedale conducted post judgment discovery. Pursuant to a subpoena, Mr. Rosedale contends that the trial court abused its dis- Lifshutz appeared for a post judgment deposition and cretion in finding the default judgment interlocutory, produced voluminous documents to Rosedale. Based on dissolving the various collection orders, and granting a the information obtained from the deposition, Rosedale new trial because the trial court lost all jurisdiction, as a secured: (1) the entry of a charging order concerning the matter of law, thirty days after the date the default judg- recovery of partnership interests, (2) the issuance of two ment was entered. Rosedale maintains that unless the writs of garnishment, and (3) the issuance of [*645] orders barring its collection efforts are dissolved, it will an execution on the judgment with the sheriff of Bexar be harmed because it may not be able to collect the County posting certain personal property for sheriff's judgment against the real party's assets due to the large sale. Mr. Lifshutz counter by filing a motion to set aside amount of other outstanding judgments [**6] against the default judgment, a motion to dissolve the order of Mr. Lifshutz. the sheriff's sale, a motion to dissolve the writs of gar- In response to Rosedale's petition, the real party nishment, and an application for an injunction. All of the claims that Rosedale has failed to comply with the man- motions were based upon the premise that the default datory requirements of rule 121(a) (2) (C) and (F) of the judgment was interlocutory. Judge Curry entered the Texas Rules of Appellate Procedure because its petition order dissolving the writs of garnishment, dissolving the fails to be accompanied by a certified or sworn copy of execution and order of sheriff's sale, and granting a new the orders complained of and fails to include an affidavit trial. Judge Haberman entered [**4] the injunction or- verifying the truth of all factual allegations made in the der and the order dismissing the charging order. petition. In reviewing Rosedale's petition, we find that Rosedale then filed its petition for writ of mandamus the verification contained in the petition was signed only requesting that the previous orders of the trial court be by the notary public and not by the relator or its repre- reinstated and the injunction enjoining its collections sentative. In oral argument, relator maintained that the efforts be dissolved. Rosedale contends that the default verification was sufficient citing Republic Nat'l Leasing judgment in the underlying case was final and could not Corp. v. Schindler, 717 S.W.2d 606 (Tex. 1986), and be affected or modified by the respective trial judges on Stocking v. Biery, 677 S.W.2d 792 (Tex. App.--San An- any basis. tonio 1984, orig. proceeding). I. MANDAMUS REVIEW In Schindler, the supreme court stated that copies of documents attached to a properly prepared affidavit are A writ of mandamus will issue to correct a clear sworn copies under rule 166A(e). However, in the instant abuse of discretion by a trial court or to correct a viola- case, we do not have a properly prepared affidavit before tion of a duty imposed by law if no other remedy at law us. Moreover, in Stocking v. Biery, the court noted that a is available to the relator. Walker v. Packer, 827 S.W.2d certified copy of the trial court's order was submitted in 833, 839 (Tex. 1992, orig. proceeding); Johnson v. [**7] the mandamus but the other documents were un- Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. certified. The court found that the uncertified documents 1985, orig. proceeding). An abuse of discretion occurs did not meet the requirements and were not properly when a trial court "reaches a decision so arbitrary and before the court. In the instant case, we have been pro- unreasonable as to amount to a clear and prejudicial error vided with copies of the various orders [*646] and of law. Johnson, 700 S.W.2d at 917. A trial court does exhibits along with a verification signed by a notary pub- not have discretion in determining what the law is or in lic. However, a verification signed only by a notary pub- applying the law to the given facts. Walker, 827 S.W.2d lic and not by the relator does not meet the procedural at 840. The clear failure by a trial court to analyze or requirements of rule 121 of the Texas Rules of Appellate apply the law correctly [**5] constitutes an abuse of Procedure. Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. discretion which could result in appellate reversal by App.--Houston [1st Dist. 1991, orig. proceeding [leave extraordinary writ. Id. However, mandamus will not is- denied]). Consequently, we have not been furnished with Page 3 869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **

certified or sworn copies of the exhibits, and we do not ment may sometimes be ascertained based upon the in- have a proper verification of the factual assertions con- tention of the trial court [**10] as gleaned from the tained in the petition. Id. Ordinarily, the motion for leave language of the decree, the record as a whole, and the to file would be overruled. However, because we have conduct of the parties. Highway Contractors, Inc. v. already granted relator's motion for leave to file its peti- West Texas Equip. Co., Inc., 584 S.W.2d 382, 384 (Tex. tion for writ of mandamus, we will address the merits of Civ. App.--Amarillo 1979, no writ); see Harper v. the petition in the interest of judicial economy because Welchem, Inc., 799 S.W.2d 492, 495 (Tex. relator may correct these technical defects and refile its App.--Houston [14th Dist.] 1990, no writ) (determinative petition. Id. factor in interpreting judgment is intention of court). However, in determining whether the judgment is final, II. DEFAULT JUDGMENT different presumptions apply depending upon whether the judgment is made following a conventional trial on Rosedale claims that the default [**8] judgment the merits or results from a default judgment or motion entered is final despite the fact that Rosedale had asked for summary judgment. Houston Health Clubs, 722 for three categories of relief in its original petition but S.W.2d 692. The judgment is presumed final following a was granted only one category of relief in the judgment. 1 conventional trial on the merits. North East Indep. Rosedale asserts that by the omission of the other cate- School Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex. gories of relief requested, the trial court intended to grant 1966). However, in the context of default or summary only the relief awarded and to deny the other requested judgments, the Aldridge presumption does not apply. relief. In support of this theory, Rosedale refers to the Houston Health Clubs, 722 S.W.2d at 693. Rosedale language in the last sentence of the default judgment acknowledges the existence of the Aldridge presumption which states "for all of which let execution issue." but argues that it cannot be interpreted to mean that there Rosedale maintains that because execution is available is a presumption against finality in default judgments. only at the entry of a final judgment, the inclusion of that Rosedale claims there is [**11] simply no presumption, phrase indicates the judgment is final and conclusive on and we must look to the trial court's file for evidence of all matters before the court. Rosedale acknowledges that whether the judgment was intended to be final. a final judgment must dispose of all parties and issues, but argues that the parties and issues may be disposed of A. "Case Closed" Notation by necessary implication. As further evidence that the judgment is final, Rosedale notes that the docket sheet As evidence of the intent to make the judgment fi- shows an entry, contemporaneous with the entry of the nal, Rosedale points to the [*647] notation on the default judgment, indicating "case closed." Rosedale court's docket indicating "case closed." The supreme argues that all these factors indicate the judgment is fi- court has stated that "a docket entry may supply facts in nal. Additionally, during oral argument, Rosedale argued certain situations" but it may not prevail over or contra- [**9] that the order is final because Rosedale had dict a final judicial order. N-S-W Corp. v. Snell, 561 abandoned Its claims for attorney's fees and prejudgment S.W.2d 798, 799 (Tex. 1977). One court has interpreted interest. the certain situations referred to in N-S-W as correcting clerical errors in judgments or determining the meaning 1 The petition set out that the total sum due of words used in a judgment. Energo Int'l Corp. v. from the defendant on the date of conveyance to Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 n.2 Rosedale totalled $ 7,047,841.20 and that in addi- (Tex. App.--Dallas 1986, no writ). Otherwise, docket tion to that sum, accrued interest had accumulat- entries are considered to be a memorandum made for the ed on the past due amount. Rosedale sought re- convenience of the clerk and the trial court and not a part covery of this interest from the date of the con- of the record to be considered. Roever v. Roever, 824 veyance until date of payment. In addition, S.W.2d 674, 676 (Tex. App.--Dallas 1992, no writ). From Rosedale requested attorney's fees. However, the the limited record before us, we do not find that the case default judgment awarded $ 7,047,841.20 as the closed notation evidences intent by the trial court to past due principal and interest at the time the suit make the default judgment [**12] final. was filed, plus interest on the unpaid sum at the rate of eighteen percent (18%) per annum from B. "Let Execution Issue" date of judgment until date of payment. Rosedale also contends that the phrase "for all of A final judgment is one that disposes of all parties which let execution issue" evidences the trial court's in- and all issues involved in a lawsuit. Houston Health tent to make the judgment final. We have found no au- Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 thority, and relator did not provide us with any, indicat- (Tex. 1986). The determination of the finality of a judg- ing that the use of the execution issue phrase evidences Page 4 869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **

the intent to make the judgment final. 2 Moreover, judg- In order for a judgment to be final, it must dispose of ments containing directives that execution issue have all parties and all issues involved in the lawsuit. Hou- been found to be interlocutory. See Macarangal v. An- ston Health Clubs v. First Court of Appeals, 722 S.W.2d drews, 838 S.W.2d 632, 634 (Tex. App.--Dallas 1992, 692, 693 (Tex. 1986). Relator contends that all issues orig. proceeding [leave denied]) (order listing entity as a were disposed of because it abandoned its claims for party, dismissing the cause, and providing for execution prejudgment interest and attorney's fees. Although we did not show intent of trial court to dispose of all parties note that one court has allowed a party to [*648] and claims); McClennahan v. First Gibraltar Bank, 791 abandon or waive a request for punitive damages and S.W.2d 607, 608-09 (Tex. App.--Dallas 1990, no writ) impart the requisite finality to a judgment without in- (judgment contained let execution issue phrase but court forming the trial court of the decision to do so, in that found summary judgment interlocutory for failure to case the court held it was not necessary to notify the trial dispose of counterclaim). court in order to show that the jurisdiction [**15] of the appellate court had been successfully invoked. Jones v. 2 However, had the default judgment included Griege, 803 S.W.2d 486, 487-88 (Tex. App.--Dallas language purporting to dispose of all claims 1991, no writ). and/or parties (Mother Hubbard language), it In Griege, the court concluded that Griege's notice would have clearly evidenced the trial court's in- to the appellate court of his decision to waive the request tent to dispose of all claims. Mafrige v. Ross, for punitive damages established that the judgment was 866 S.W.2d 590, 37 Tex. Sup. Ct. J. 82, 84 (Oct. now final and the appellate court had jurisdiction over 27, 1993). the appeal. Id. at 489. However, in the instant case, it is crucial for us to know when Rosedale decided to aban- [**13] C. Disposition of Issues by Necessary Implica- don or waive its remaining requests in order to determine tion when the trial court's plenary power expired. In the rec- Rosedale asserts that in addition to evidencing the ord before us, we do not have any evidence of an intent to make the judgment final, the let execution issue amended petition deleting the claims for prejudgment phrase indicates that the claims for attorney's fees and interest and attorney's fees, an affidavit explaining when prejudgment interest were disposed of by necessary im- the claim was abandoned, or any other evidence indicat- plication. We disagree. Although it is well-settled that it ing Rosedale's intent to abandon the remaining claims is not "essential that the judgment in express terms spe- prior to the filing of the motion for new trial. 3 Therefore, cifically dispose of each issue" in order to be final, it is we do not know if Rosedale abandoned its claims at the essential that the inference that the judgment does dis- time the default judgment was signed, at the time the pose of a particular issue follows as a necessary implica- motion for new trial was filed, or during oral argument tion. Davis v. McCray Refrigerator Sales Corp., 136 Tex. when the abandonment argument was first presented. 296, 150 S.W.2d 377, 378 (1941); see Matelski v. Because we are unable to ascertain the finality of the Matelski, 840 S.W.2d 124, 126-27 (Tex. App.--Fort judgment [**16] based on the abandonment of issues Worth 1992, no writ) (by enforcing partition agreement, argument, we must review the judgment on its face to court necessarily denied claim that party was under du- determine its finality. ress when signing agreement); Chem-Gas Engineers, The default judgment in this case provides the fol- Inc. v. Texas Asphalt & Refining Co., 395 S.W.2d 690, lowing: 691 (Tex. Civ. App.--Waco 1965, writ ref'd n.r.e.)(when plaintiff's action seeking adjudication of priority and It is therefore ORDERED, AD- foreclosure of lien dismissed, no right, equities, or issues JUDGED and DECREED that Judgment left for adjudication between the parties; judgment dis- is entered in favor of the Plaintiff posed of plaintiff's [**14] claim for debt which could Rosedale Partners, Ltd. against the De- only be established via a lien by necessary implication). fendant Bernard Lifshutz in the amount of In the instant case, the court awarded the alleged amount $ 7,047,841.20, the past due principal and of the note and post judgment interest. No mention was interest at the time of filing of this suit, made as to the prejudgment interest or the attorney's fees plus interest on this unpaid sum at the rate as requested in the petition nor did the award of the note of eighteen percent (18%) per annum amount plus interest preclude the award of prejudgment from date of Judgment until date of pay- interest or attorney's fees. Therefore, we do not find that ment, for all of which let execution issue. these claims were disposed of by necessary implication.

D. Final Judgment Disposes of All Parties and Issues Page 5 869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **

However, in reviewing plaintiff's original petition, we judgment interlocutory). Moreover, in Hunt Oil Co. v. find that the following requests were made: Moore, 639 S.W.2d 459, 460 (Tex. 1982), a judgment, In addition to this sum [the $ which did not mention the claim for prejudgment inter- 7,047,841.20], accrued interest as allowed est, was considered Interlocutory until the court entered by law is also accumulating on the past another judgment which tracked the language of the first due sum shown above, and recovery of judgment and added language which denied all other this interest from the date of such con- relief not expressly [**18] granted. The court found veyance until date of payment is also that the interlocutory judgment not only failed to address sought by this suit. . . . Pursuant to the the claim for prejudgment interest but also ordered an terms of the Notes themselves, the Plain- accounting to be filed at a subsequent time. Id. at 460; tiff is entitled to recover a sum equal to see New York Underwriters Ins. Co. v. Sanchez, 799 fifteen percent (15%) additional on the S.W.2d 677, 678 (Tex. 1990) (judgment which did not amount of principal and interest owing, as mention or [*649] dispose of counterclaim for attor- attorneys' fees, and for the recovery ney's fees interlocutory). [**17] of this additional sum claim is also made. 3 Both parties agreed during oral argument that no hearing was held at the time the default judgment was signed. Relator acknowledged that In Houston Health Clubs, the court found that a default the default judgment was mailed to the judge in judgment was interlocutory because it not dispose of the order to obtain her signature. punitive damage issue. Id. In that case, a default judg- In the instant case, the trial court did not dispose of ment was granted to the landlord for all the relief sought all the issues before it. Rosedale prayed not only for the except for punitive damages. The punitive damage issue amount of the note but also requested prejudgment inter- was not mentioned either expressly or by implication. est and attorney's fees. Therefore, we hold that the de- The court held that because the default judgment re- fault judgment entered was interlocutory, and the trial mained interlocutory, the trial court retained jurisdiction court retained jurisdiction to grant the new trial and dis- to set it aside and grant a new trial. Id. 722 S.W.2d at solve its previous orders. Accordingly, the petition for 694; see H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d writ of mandamus [**19] is denied. 678, 680 (Tex. App.--Corpus Christi 1991, writ denied) (where three possible authorities existed under which ORLANDO GARCIA, prejudgment interest could be awarded, failure to recite specific interest rate in default judgment case rendered Justice Page 1

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SHEIK TEHUTI, Appellant v. BARRETT DAFFIN FRAPPIER TURNER & EN- GEL, LLP, MARY DAFFIN, ROBERT FRAPPIER, STEVE TURNER, BRIAN ENGEL, AND CHALISE ESTES, Appellees

No. 05-11-00449-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2011 Tex. App. LEXIS 7375

September 9, 2011, Opinion Issued

SUBSEQUENT HISTORY: Released for Publica- Court directed the parties to file letter briefs addressing tion October 21, 2011. our jurisdiction over the appeal. Appellant responded with a brief that appears to ad- PRIOR HISTORY: [*1] dress the merits of the default judgment rather than the On Appeal from the 193rd Judicial District Court, jurisdictional issue. The only reference that might be Dallas County, Texas. Trial Court Cause No. construed as directed to the jurisdictional question is DC-10-15953. appellant's statement that the "district court had ruled on a core issue important to the appeal." This, however, COUNSEL: For APPELLANT: Sheik Tehuti, Fort does not explain why the judgment is not interlocutory. Worth, TX. Appellees responded that [*2] the March 30, 2011 judgment is interlocutory and we do not have jurisdiction For APPELLEE: Steven A. Leyh, LEYH & PAYNE, over the appeal. We agree with appellees. L.L.P., Houston, TX. Appellate jurisdiction is never presumed. Brashear JUDGES: Before Justices FitzGerald, Francis, and v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d Lang-Miers. Opinion By Justice FitzGerald. 542, 546 (Tex. App.--Dallas 2009, no pet.) (op. on reh'g). Unless the record affirmatively shows the propriety of OPINION BY: KERRY P. FITZGERALD appellate jurisdiction, we must dismiss the appeal. See id. Subject to a few exceptions not applicable here, we have OPINION jurisdiction only over appeals from final judg- ments--judgments that dispose of all pending parties and MEMORANDUM OPINION claims. See Lehmann, 39 S.W.3d at 195; Beckham Grp., P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.--Dallas Opinion By Justice FitzGerald 2010, no pet.). Sheik Tehuti appealed the trial court's March 30, In this case, the trial court's March 30, 2011 judg- 2011 default judgment in favor of appellees. The judg- ment neither affirmatively disposes of appellees' claim ment on its face appeared to be interlocutory in that it did for prejudgment interest nor contains language indicating not dispose of appellees' claim for prejudgment interest, that all claims and parties have been disposed of and the nor did it contain language indicating it was disposing of judgment is intended to be final. See Lehmann, 39 all claims and parties and was intended to be final. See S.W.3d at 200. Therefore, the judgment is not final. Ab- Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. sent a final judgment, we have no jurisdiction over the 2001). Therefore, by letter dated June 27, 2011, the appeal. See id. at 195. Page 2 2011 Tex. App. LEXIS 7375, *

We dismiss the appeal for want of jurisdiction. JUSTICE KERRY P. FITZGERALD | | Positive As of: April 7, 2015 6:01 PM EDT

Sherman Acquisition II LP v. Garcia Court of Appeals of Texas, Tenth District, Waco June 20, 2007, Opinion Delivered; June 20, 2007, Opinion Filed No. 10-06-00013-CV

Reporter 229 S.W.3d 802; 2007 Tex. App. LEXIS 4793

SHERMAN ACQUISITION II LP, Appellant v. TONIE The court held that the creditor was not entitled to a GARCIA, Appellee judgment for a suit on sworn account. The case involved the extension of credit. Some credit extensions were to Prior History: [**1] From the County Court at Law No. fund the purchase of goods or services at the point of 1. McLennan County, Texas. Trial Court No. purchase; others were alleged to have been cash 20050487CV1. advances. The creditor had not properly pleaded a claim upon which a suit on a sworn account for those Disposition: Reversed and rendered. types of transactions could be based. The trial court erred in not granting a default judgment under Tex. R. Core Terms Civ. P. 239 on liability, but not on damages. While the creditor did not bring itself within the rule regarding a suit on a sworn account, its allegations were sufficient trial court, default judgment, damages, sworn, request to allege a traditional suit for breach of contract. Although for admission, liquidated, attorney's fees, unliquidated the court disagreed with the creditor's conclusion that damages, merits, pet, no writ, allegations, admissions, the damages were liquidated, sufficient evidence of original petition, conclusively, unidentified, deemed damages was presented to prove its damages pursuant admitted, judicial notice, unliquidated, hearsay, card, to Tex. R. Civ. P. 243. Accordingly, the trial court erred in hear, take nothing judgment, entitled to judgment, not rendering judgment for the creditor. amount of damages, judgment rendered, court of appeals, fact finding, contents Outcome

Case Summary The court reversed the trial court's judgment and rendered judgment for the creditor. Procedural Posture LexisNexis® Headnotes Appellant creditor challenged a take-nothing judgment entered by the County Court at Law No. 1, McLennan Contracts Law > Breach > Breach of Contract Actions > County, Texas, after a trial on the merits before the court General Overview in the creditor's action against appellee debtor on a sworn account and for quantum meruit to recover an Contracts Law > ... > Sales of Goods > Title, Creditors & unpaid credit card debt. The debtor had not filed an Good Faith Purchasers > Passing of Titles answer or otherwise made an appearance. Although HN1 A suit on a sworn account must be based upon a the creditor requested a default judgment, the trial court transaction involving a sale on one side and a purchase did not grant it. on the other whereby title to personal property passes from one to another. Overview

The debtor did not appear at the trial on the merits. The Civil Procedure > ... > Pretrial Judgments > Default & creditor presented no live testimonial evidence of its Default Judgments > General Overview damages but had an attorney fee affidavit and an Civil Procedure > Appeals > Appellate Jurisdiction > affidavit purporting to address the merits of its claim. Interlocutory Orders 229 S.W.3d 802, *802; 2007 Tex. App. LEXIS 4793, **1

HN2 Ordinarily, the denial of a default judgment is an allegations of fact set forth in the petition are deemed interlocutory order not subject to appeal. This is the admitted, except for the amount of damages. If the natural result of the denial of a motion that does not claim is liquidated and proved by an instrument in result in a judgment because the refusal to rule on, or writing, the damages shall be assessed by the court, or the denial of, a dispositive motion, does not normally under its direction, unless the defendant demands and result in a ruling or other final judgment about which is entitled to a trial by jury. Tex. R. Civ. P. 241. A claim is complaint can be made. Usually, after the denial, or liquidated if the amount of damages caused by the refusal to rule, the proceedings progress and are defendant can be accurately calculated from (1) the ultimately resolved and the denial or refusal to rule on factual, as opposed to conclusory, allegations in the the motion becomes moot because other events in the petition, and (2) an instrument in writing. Whether a proceeding have resulted in a judgment. claim is liquidated must be determined from the language of the petition, as a seemingly liquidated Civil Procedure > ... > Pretrial Judgments > Default & claim may be unliquidated because of pleading Default Judgments > General Overview allegations which require proof for resolution. If the Civil Procedure > Appeals > Standards of Review > Abuse damages being claimed are unliquidated, the court of Discretion rendering a default judgment must hear evidence as to damages. Tex. R. Civ. P. 243. Rule 243 does not HN3 Review of the denial of a motion for default prescribe either the manner in which the hearing is to be judgment is under the abuse of discretion standard. conducted or the character of evidence which is required. Tex. R. Civ. P. 243. However, it is error for the Civil Procedure > ... > Default & Default Judgments > trial court to fail to conduct a hearing and to require Default Judgments > Entry of Default Judgments proof of unliquidated damages before rendering default HN4 A plaintiff is generally entitled to a default judgment judgment for such damages. against a defendant who fails to file an answer within the time allowed and fails to appear when the trial court Contracts Law > ... > Damages > Types of Damages > Liquidated Damages calls the case for trial. Tex. R. Civ. P. 239. A defendant who neither answers nor appears has "admitted" the HN8 Examples of unliquidated damages are personal facts properly pled and the justice of the opponent's injury damages, claims based on repair estimates, and claim. the determination of property value absent written instruments verifying the value. A claim is liquidated if Contracts Law > Breach > Breach of Contract Actions > the amount of damages may be accurately calculated General Overview by the trial court from the factual, as opposed to the HN5 A suit on a sworn account is a special type of suit conclusory, allegations in a plaintiff's petition and the on a contract. instrument in writing.

Civil Procedure > ... > Pretrial Judgments > Default & Contracts Law > ... > Damages > Types of Damages > Default Judgments > Default Judgments Liquidated Damages

HN6 A default judgment on liability does not address the HN9 When a claim is for unliquidated damages, a court merits of the allegations regarding unliquidated shall hear evidence as to damages and shall render damages. judgment therefor. Tex. R. Civ. P. 243. For an unliquidated claim, testimony of the total amount due is Civil Procedure > ... > Default & Default Judgments > sufficient to support an award of damages, and the Default Judgments > Entry of Default Judgments testimony may be supplied by affidavits. Contracts Law > ... > Damages > Types of Damages > Contracts Law > ... > Damages > Types of Damages > Liquidated Damages Liquidated Damages Evidence > Types of Evidence > Judicial Admissions > Effects HN10 See Tex. R. Civ. P. 243.

HN7 Once a default judgment is taken against a Contracts Law > ... > Damages > Types of Damages > non-answering defendant on an unliquidated claim, all Liquidated Damages Page 2 of 10 229 S.W.3d 802, *802; 2007 Tex. App. LEXIS 4793, **1

Evidence > ... > Statements as Evidence > Hearsay > facts admitted may not be contradicted by evidence at General Overview the trial.

HN11 Tex. R. Evid. 802 states that inadmissible hearsay Counsel: For APPELLANT/RELATOR: Jeffrey J. Chen, admitted without objection shall not be denied probative HULL & ASSOCIATES, PC, Houston, TX. value merely because it is hearsay. Nothing in Rule 802 limits its application to contested hearings. The rule is For APPELLEE/RESPONDENT: Tonie Garcia, Pro se, not ambiguous and requires no explication. Because Waco, TX. unobjected to hearsay constitutes probative evidence, it satisfies the requirement of Tex. R. Civ. P. 243 that Judges: Before Chief Justice Gray, Justice Vance, and there be evidence of unliquidated damages. Justice Reyna. Civil Procedure > ... > Default & Default Judgments > Opinion by: TOM GRAY Default Judgments > Entry of Default Judgments Contracts Law > ... > Damages > Types of Damages > Liquidated Damages Opinion Evidence > ... > Statements as Evidence > Hearsay > [*804] OVERVIEW General Overview

HN12 A trial court may rely on affidavits in proving This appeal is from a take nothing judgment after a trial unliquidated damages in default judgments; in fact, it is on the merits before the court. Sherman Acquisition II error to not consider the affidavits. Tex. R. Evid. 802, the LP sued Tonie Garcia in county court on a sworn account hearsay rule, will not prevent use of evidence in the and for quantum meruit 1 to [*805] recover an unpaid form of affidavits. Affidavits are probative evidence of credit card debt. Garcia did not file an answer or unliquidated damages. Testimony of the total amount otherwise make an appearance. Sherman requested a due under a written instrument is legally sufficient to default judgment. The trial court did not grant default support an award of that amount in a default judgment judgment to Sherman, but rather set the case for a trial proceeding. But not just any affidavit will do. An affidavit on the merits. Garcia did not appear at the trial on the which does not positively and unqualifiedly represent merits. Upon Sherman's request, the trial court took the facts as disclosed in the affidavit to be true and judicial notice of the contents of its file. Sherman within the affiant's personal knowledge is legally presented no live testimonial evidence of its damages insufficient. but included in the court's file was an attorneys fee affidavit and an affidavit purporting to address the merits Evidence > Types of Evidence > Judicial Admissions > of its claim. The trial court rendered a take nothing Effects judgment. This appeal followed.

HN13 Admissions, once deemed admitted, are judicial Sherman vigorously asserts that its case is a suit on a admissions and a party may not then introduce sworn account and that it was entitled to judgment by controverting testimony in the legal proceeding related the rules applicable to suits on sworn account, or thereto. Deemed admissions may be employed as alternatively by the rules applicable to default proof; and once admissions are deemed admitted by judgments, or finally by the evidence at the trial on the operation of law and where said admissions fully support merits on both liability and damages. After a discussion each element of a cause of action, including damages, of the background of this appeal, we first address the they will fully support a judgment based thereon. This is issue of whether Sherman was entitled to a judgment because unanswered requests for admissions are for a suit on sworn account. Because we determine that deemed admitted without the necessity of a court order it is not, we then move to the question of whether and any matter thus admitted is conclusively established Sherman was entitled to a default judgment, and as being true. Tex. R. Civ. P. 198.2(c), 198.3. Thus, the whether it was error for the trial court to deny or refuse

1 The existence of a contract, as more fully explained below, bars recovery under quantum meruit. Murray v. Crest Const., Inc., 900 S.W.2d 342, 345 (Tex. 1995); Pepi Corp. v. Galliford, No. 01-05-00788-CV 2007 Tex. App. LEXIS 1018, *10 (Tex. App.-Houston [1st Dist.] Feb. 8, 2007, no pet.). [**2] Accordingly, quantum meruit will not be further discussed herein. Page 3 of 10 229 S.W.3d 802, *805; 2007 Tex. App. LEXIS 4793, **2

to grant default judgment, on both, or either, liability and Notice of Appeal was filed. damages. Because we determine that the trial court erred in not granting a default judgment on liability, but TRIAL ON THE MERITS not on damages, we then must proceed to determine whether the trial court erred by rendering a take nothing The reporter's record on this entire trial on the merits is judgment after a trial on the merits against Sherman. as follows: Because we determine that Sherman conclusively proved its damages, we ultimately conclude that the PROCEEDINGS trial court erred in not rendering judgment for Sherman NOVEMBER 4, 2005 and, [**3] therefore, we reverse the trial court's judgment and render judgment for Sherman. THE COURT: Okay. This is 20050487CV1. Mr. Fisher? BACKGROUND MR. FISHER: Thank you, Your Honor. For the record, my name is John B. Fisher, III, and I am Garcia ran up a debt on his Metris credit card account. an attorney. I practice law in Waco, McLennan He failed to pay. Sherman acquired the debt from Metris County, Texas. Hull & Associates, the attorneys and then sued Garcia to collect the debt. In addition to for the Plaintiffs in this lawsuit, have asked me the petition, Sherman included a Request for to appear today solely for the purpose of moving Disclosures and Request for Admissions in the petition. for a judgment, and I have some brief evidence Garcia did not file an answer or make an appearance. I would like to present to the Court. Not surprisingly, Garcia, in addition to not answering the claims in the petition, also did not answer the Requests THE COURT: All right. for Admissions. Service of the petition and the Request MR. FISHER: I would like to request the Court for Admissions was reflected on the return of service. to take judicial notice of the case file that the Court presently has in his [**5] possession. Sherman filed a motion for default judgment on July 18, 2005. Rather than a ruling on the motion for default THE COURT: All right. judgment, on July 18, 2005 the case was set for trial on MR. FISHER: I would, second, like to be sworn November 4, 2005. in. The trial on the merits was held on November 4, 2005. (Witness duly sworn) No jury trial having been requested, the case was tried THE COURT: All right. Proceed. to the court. At the trial before the court, Sherman did not specifically object to the trial court's failure or refusal JOHN B. FISHER, III to rule on any motion but Sherman did draw the trial having been first duly sworn, testified as follows: court's attention to its entitlement to judgment based on the contents of the court's file. Sherman [**4] specifically DIRECT EXAMINATION asked the court to take judicial notice of the court's file BY MR. FISHER: and requested a judgment in its favor. I will testify as follows: That I am John B. Fisher, The trial court took judicial notice of the contents of the III, and that I am an attorney and I practice law court's file, which contained the petition, affidavits in Waco, McLennan County, Texas, and the regarding the claim and attorneys fees, and Request for following testimony is not of personal Admissions to which no response had been filed. knowledge. It is based strictly on information and belief. A take nothing judgment was rendered on November 4, 2005. And that testimony would be that it is my understanding that the Defendant incurred a [*806] Sherman requested findings of fact and credit card debt to a company called Metris, conclusions of law. and that that debt was subsequently bought by the Plaintiff herein, Sherman Acquisition. And it Findings of fact and conclusions of law were filed. is my understanding, based on information and Page 4 of 10 229 S.W.3d 802, *806; 2007 Tex. App. LEXIS 4793, **5

belief, that that debt is a legitimate debt that is 3. The trial [court] improperly set the matter for trial. unpaid and that the Plaintiff is entitled to recover the money that they have sued for. All three issues are somewhat interrelated, and will be discussed as necessary, as described above. Also, I would like to testify, based on information and belief, that included in the Plaintiff's Original SWORN ACCOUNT Petition are Requests for Admissions that have not been responded to as of this date, in any If Sherman properly pleaded a suit on a sworn account, manner. it is entitled to judgment, not so much because of the And that's all the testimony I have, Your Honor. default of Garcia, but because Garcia did not file a sworn denial of the account. See TEX. R. CIV. P. 185. THE COURT: Anything else, Mr. Fisher? But as the trial court properly noted, HN1 a suit on a MR. FISHER: Did the Court [**6] want to hear sworn account must be based upon a transaction any type of argument? involving "a sale on one side and a purchase on the other whereby title to personal property passes from THE COURT: I will hear anything you want to one to another." Tully v. Citibank (S.D.), N.A., 173 present, Mr. Fisher. S.W.3d 212, 216 (Tex. App.-Texarkana 2005, no pet.). This case involves the extension of credit. Some credit MR. FISHER: Thank you, Your Honor. extensions were to fund the purchase of goods or FINAL ARGUMENT services at the point of purchase; others are alleged to MR. FISHER: I would like to say to the Court have been cash advances. Sherman has not properly that I believe that Rule 241 of the Texas Rules pleaded a claim upon which a suit on a sworn account of Civil Procedure is applicable in this situation for these types of transactions can be based. because we have a liquidated amount that is proven by an instrument in writing, and I believe DEFAULT JUDGMENT that the pleadings are sufficient to give the HN2 Ordinarily, the denial of a default judgment is an Defendant notice of what they were sued for interlocutory order not subject to appeal. Aguilar v. and why they were sued, [*807] and I think the Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston Requests for Admissions certainly bolster those [14th Dist.] 2005, no pet.). [**8] This is the natural result other reasons, and therefore, believe that when of the denial of a motion that does not result in a the Defendant hasn't appeared and in any way judgment because the refusal to rule on, or the denial contested the charges, which constitutes a type of, a dispositive motion, does not normally result in a of tacit admission, that it's a legitimate claim, ruling or other final judgment about which complaint can that the Plaintiff is entitled to the judgment be made. Usually, after the denial, or refusal to rule, the requested. proceedings progress and are ultimately resolved and Thank you, Your Honor. the denial or refusal to rule on the motion becomes moot because other events in the proceeding have THE COURT: Mr. Fisher, I am going to deny the resulted in a judgment. relief prayed for and order that the Plaintiff take nothing for this suit. Anything further? We have previously reviewed the denial of a motion for default judgment which was filed and ultimately denied MR. FISHER: No, Your Honor. after an answer was filed. Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex. App.-Waco 1999, pet. denied) ("Rather, THE APPEAL Aguilar's first request for a default judgment occurred in Sherman brings three issues. The issues are as follows: his motion, filed after Alvarado filed his answer, in which he asked the trial court to strike Alvarado's answer and 1. The trial court erred in ordering that the Plaintiff take enter a default judgment."). And at least one other nothing by way of its suit. appellate court, citing our Aguilar case, has considered the denial of a default judgment when, as here, the 2. The trial court erred in not granting the Plaintiff's denial is challenged in an appeal from a final judgment [**7] Default Judgment; and or order. Aguilar v. Livingston, 154 S.W.3d 832, 833 Page 5 of 10 229 S.W.3d 802, *807; 2007 Tex. App. LEXIS 4793, **8

(Tex. App.-Houston [14th Dist.] 2005, no pet.). [**9] HN3 calls [**11] the case for trial. TEX. R. CIV. P. 239. A Review of the denial of a motion for default judgment is defendant who neither answers nor appears has under the abuse of discretion standard. Id. "'admitted' the facts properly pled and the justice of the opponent's claim." Stoner v. Thompson, 578 S.W.2d [*808] Initially we must determine whether the trial 679, 682 (Tex. 1979). court's failure or refusal to grant a default judgment was properly preserved. In Aguilar v. Alvarado, the motion Just because we have determined that this was not a was made and specifically denied after the answer had suit on a sworn account, we cannot disregard the been filed. Thus, as with any issue that needs to be remaining allegations if they support a claim for breach preserved, Aguilar had pursued the objection to an of contract. HN5 A suit on a sworn account is a special adverse ruling. See TEX. R. APP. P. 33.1. The appellant, type of suit on a contract. We hold that while Sherman Aguilar, was arguing that the trial court, notwithstanding did not bring itself within the rule regarding a suit on a that an answer had been filed, should have granted the sworn account, its allegations are sufficient to allege a motion for default judgment. traditional suit for breach of contract. After reviewing the original petition, we find that it contained a sufficient In the present case, however, there is some question allegation of breach of contract, and the trial court whether proceeding to trial without an express ruling on should have entered default judgment for Garcia's the motion would be a waiver of the motion by Sherman. liability on the claim upon that basis. The trial court Alternatively, it could be argued, that setting the case for abused its discretion in failing to enter the default trial rather than granting default judgment was an implied judgment. But this is only as to liability. HN6 A default denial of the motion by the trial court. TEX. R. APP. P. judgment on liability does not address the merits of the 33.1(a)(2)(A). Or finally, a third alternative argument is allegations regarding unliquidated damages. Transp. whether preservation would require that the movant Concepts, Inc. v. Reeves, 748 S.W.2d 302, 304 (Tex. object to the trial court's failure or refusal to rule on the App.-Dallas 1988, no writ). motion. TEX. R. APP. P. 33.1(a)(2)(B). LIQUIDATED DAMAGES VS. UNLIQUIDATED At the trial on the merits, in [**10] Sherman's opening [**12] DAMAGES statement, consisting of one paragraph, Sherman advised the court that it was there to move for judgment. The general topic of default judgments and the critical And in its closing argument, also of only one paragraph, distinction between [*809] liquidated and unliquidated Sherman specifically argued that it was entitled to damages is addressed in an excellent opinion by Justice judgment under Rule 241 of the Texas Rules of Civil Johnson, now on the Texas Supreme Court, when he Procedure (default judgment on liquidated damages). was a justice on the Seventh Court of Appeals in Immediately thereafter, the trial court rendered a take Amarillo. Arenivar v. Providian Nat'l Bank, 23 S.W.3d nothing judgment against Sherman. Because it is clear 496, 497-498 (Tex. App.-Amarillo 2000, no pet.). As that Sherman did not waive its claimed right to a default Justice Johnson explained, judgment and continued to press the court for a default judgment based upon the contents of the court's file, HN7 Once a default judgment is taken against and further because it is clear that the trial court a non-answering defendant on an unliquidated understood Sherman's request, we conclude that the claim, all allegations of fact set forth in the issue of whether the trial court erred in failing to render petition are deemed admitted, except for the a default judgment was adequately preserved. TEX. R. amount of damages. Texas Commerce Bank, APP. P. 33.1. Nat. Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999). If the claim is liquidated and proved by LIABILITY AND DAMAGES an instrument in writing, the damages shall be assessed by the court, or under its direction, We now address the question of whether the trial court unless the defendant demands and is entitled erred in not rendering a default judgment in favor of to a trial by jury. TEX. R. CIV. P. 241. A claim is Sherman on either, or both, liability and damages. HN4 liquidated if the amount of damages caused by A plaintiff is generally entitled to a default judgment the defendant can be accurately calculated from against a defendant who fails to file an answer within (1) the factual, as opposed to conclusory, the time allowed and fails to appear when the trial court allegations in the petition, and (2) an instrument Page 6 of 10 229 S.W.3d 802, *809; 2007 Tex. App. LEXIS 4793, **12

in writing. Pentes Design, Inc. v. Perez, 840 for professional services was a liquidated claim proven S.W.2d 75, 79 (Tex. App.-Corpus Christi 1992, by written instruments); Mantis v. Resz, 5 S.W.3d 388, writ denied). Whether [**13] a claim is liquidated 392 (Tex. App.-Fort Worth 1999, pet. denied), overruled must be determined from the language of the on other grounds, Sheldon v. Emergency Medicine petition, as a seemingly liquidated claim may Consultants, 43 S.W.3d 701, 702-03 (Tex. App.-Fort be unliquidated because of pleading allegations Worth [*810] 2001, no pet.) [**15] (in a suit on a sworn which require proof for resolution. See Irlbeck account, the petition with an attached sworn account v. John Deere Co., 714 S.W.2d 54, 57 (Tex. and verified affidavit of the sworn account was a App.-Amarillo 1986, writ ref'd n.r.e.). liquidated claim proved by written instruments); Sheshunoff & Co. v. Scholl, 560 S.W.2d 113, 115 (Tex. If the damages being claimed are unliquidated, Civ. App.-Houston [1st Dist.] 1977), rev'd on other the court rendering a default judgment must grounds, 564 S.W.2d 697 (Tex. 1978) (no further proof hear evidence as to damages. Rule 243; Holt was required in suit to recover damages for breach of Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, employment contract because the claim for damages 83 (Tex. 1992). Rule 243 does not prescribe was liquidated and proved by the employment contract either the manner in which the hearing is to be attached to the petition). We disagree with Sherman's conducted or the character of evidence which conclusion that the damages here are liquidated. As is required. Rule 243; see New, 3 S.W.3d at explained below, we agree, however, that sufficient 516-17 (affidavits are sufficient evidence to evidence of damages was presented to prove support unliquidated damages award). Sherman's damages. However, it is error for the trial court to fail to conduct a hearing and to require proof of UNLIQUIDATED DAMAGES unliquidated damages before rendering default judgment for such damages. See Jones v. Having found that Sherman was entitled to a default Andrews, 873 S.W.2d 102, 107 (Tex. judgment based on the petition's allegations regarding App.-Dallas 1994, no writ). liability and the defendant's failure to answer, our decision leaves Sherman with the need to prove its Arenivar v. Providian Nat'l Bank, 23 S.W.3d 496, unliquidated damages. Sherman alleges it proved 497-498 (Tex. App.-Amarillo 2000, no pet.). damages via an affidavit or, alternatively, deemed admissions. HN8 Examples of unliquidated damages are personal At the trial, Sherman submitted damages evidence in injury damages, claims based on repair estimates, and the form of request for admissions that were deemed the determination of property [**14] value absent written admitted and affidavits. We will address those [**16] in instruments verifying the value. See Jones v. Andrews, reverse order. 873 S.W.2d 102, 107 (Tex. App.-Dallas 1994, no writ) (damages for personal injuries are unliquidated); AFFIDAVIT Alvarado v. Reif, 783 S.W.2d 303, 305 (Tex. App.-Eastland 1989, no writ) (claim for damages based HN9 When a claim is for unliquidated damages, "the on repair estimate is not a liquidated damage); Willacy court shall hear evidence as to damages and shall County Appraisal Review Bd. v. South Padre Land Co., render judgment therefor …" TEX.R. CIV. P. 243; Holt 767 S.W.2d 201, 204 (Tex. App.-Corpus Christi 1989, Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. no writ) (determination of property value is not liquidated 1992). For an unliquidated claim, testimony of the total demand where only evidence of property value was the amount due is sufficient to support an award of conclusory allegation of value in plaintiff's unsworn damages, and the testimony may be supplied by petition). affidavits. Texas Commerce Bank v. New, 3 S.W.3d 515, 517 (Tex. 1999); Barganier v. Saddlebrook A claim is liquidated if the amount of damages may be Apartments, 104 S.W.3d 171, 173 (Tex. App.-Waco accurately calculated by the trial court from the factual, 2003, no pet.); Irlbeck v. John Deere Co., 714 S.W.2d as opposed to the conclusory, allegations in plaintiff's 54, 57 (Tex. App.-Amarillo 1986, no writ). petition and the instrument in writing. Novosad v. In the past, the first issue has been whether affidavits Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston constitute evidence as required by Rule 243. That rule [14th Dist.] 2001, no pet.) (suit to recover amount due provides: Page 7 of 10 229 S.W.3d 802, *810; 2007 Tex. App. LEXIS 4793, **16

HN10 If the cause of action is unliquidated or satisfies the requirement of Rule 243 that there be not proved by an instrument in writing, the be evidence of unliquidated damages. court shall hear evidence as to damages and [**18] The trial court did not err when it shall render judgment therefor, unless the considered the affidavits in rendering its default defendant shall demand and be entitled to a judgment. trial by jury in which case the judgment by default shall be noted, a writ of inquiry awarded, Texas Commerce Bank v. New, 3 S.W.3d 515, 517 and the cause entered on the jury docket. (Tex. 1999).

TEX. R. CIV. P. 243. In the case now before this Court, it appears that the trial court concluded that damages could not be properly Although several courts of appeals had held that proven through affidavit. To the contrary, HN12 a trial affidavits constitute evidence [**17] of unliquidated court may rely on affidavits in proving unliquidated damages, at least one court of appeals held that they damages in default judgments; in fact it is error to not did not. New v. Texas Commerce Bank, 971 S.W.2d consider the affidavits. Id. Rule 802 of the Texas Rules 711, 714 (Tex. App.-Austin 1998), rev'd in part, 3 S.W.3d of Evidence, the hearsay rule, will not prevent use of 515 (Tex. 1999). To reject the affidavit the court of evidence in the form of affidavits. Id. Affidavits are appeals had concluded that Rule 802 of the Texas probative evidence of unliquidated damages. Id. Rules of Evidence, the hearsay rule, prevents the use of "Testimony of the total amount due under a written affidavits "because the application of Rule 802 instrument is legally sufficient to support an award of anticipates opposing counsel's and/or an opposing that amount in a default judgment proceeding." Id. party's presence at the hearing to object to such inadmissible hearsay." Id. The lower court in New further But not just any affidavit will do. Sherman's affidavit in concluded, therefore, that a trial court does not hold "an support of damages is signed by an unidentified evidentiary hearing merely by accepting the affidavits "attorney in fact," states the amount due on the account, attached to [the] motion." Id. and that the "amount is within the knowledge of affiant just and true." An affidavit which does not positively and The Texas Supreme Court held that the court of appeals unqualifiedly represent the facts as disclosed in the was incorrect, holding affidavit to be true and within the affiant's personal knowledge is [**19] legally insufficient. Humphreys v. HN11 Rule 802 says, "Inadmissible hearsay Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). The trial admitted without objection shall not be denied court rejected the evidentiary value of the affidavit. probative value merely because it is hearsay." Specifically, as to the affidavit relied upon to prove Nothing in Rule 802 limits its application to damages, the trial court found the affiant's source of contested hearings. The rule is not ambiguous knowledge was not stated and, as such it was not and requires no explication. Consequently we adequate for the purposes of proving Sherman's will [*811] give it none. Because unobjected to damages. 2 We agree. Accordingly, the affidavit is not hearsay constitutes probative evidence, it sufficient as evidence of Sherman's damages.

2 The findings of fact relevant to the affidavit are as follows:

FINDING OF FACT NO. 5. Plaintiff attached to its original petition an Affidavit of an unidentified individual.

FINDING OF FACT NO. 6. The affidavit of the unidentified individual claimed that the unidentified individual was Attorney in Fact for Sherman Acquisition II LP.

FINDING OF FACT NO. 7. The affidavit of the unidentified individual did not claim that the unidentified individual was a representative of Metris in any capacity.

FINDING OF FACT NO. 8. The affidavit of the unidentified individual failed to state any facts supporting the statement that the unidentified individual had personal knowledge about the subject matter of this suit.

These findings have not been attacked on [**20] appeal. Page 8 of 10 229 S.W.3d 802, *811; 2007 Tex. App. LEXIS 4793, **19

ATTORNEY'S FEE AFFIDAVIT 19. Written demand was made for payment of said account more than 30 days prior to filing The other affidavit in the record was from one of this lawsuit. Sherman's attorneys. We believe it was legally sufficient to support an attorney's fee award. It stated that the 20. Defendant has breached the contract made affiant is a duly licensed attorney, that he was familiar a basis of Plaintiff's Original Petition. with the usual and customary attorney's fees in 21. Defendant presently owes Plaintiff the McLennan County, and, based on his knowledge of the amount of $ 6,672.08 on said account. services rendered to Sherman on this matter, $ 2,224.03 was a reasonable and customary fee for prosecuting 26. The terms of the credit card agreement this claim. Because there was no controverting made a basis of Plaintiff's Original Petition evidence, this was legally sufficient to establish an allowed Defendant to be charged late fees if award for and Sherman's entitlement to attorney's fees. Defendant's monthly payments were late and Texas Commerce Bank v. New, 3 S.W.3d 515, 516-518 over credit limit fees if Defendant exceeded the (Tex. 1999). credit limit.

27. A reasonable attorney fee for Plaintiff's REQUEST FOR ADMISSIONS attorney for the prosecution of this lawsuit would (DAMAGES AND ATTORNEY'S FEES 3) be at least the amount of $ 2,224.03.

Sherman served a request for admissions, as part of its The request for admissions was imbedded in the petition, on Garcia. [*812] Garcia did not file an answer petition. No objection is made to this procedure and by or other response. The requests were, therefore, our holding we express no opinion upon the propriety of deemed admitted. TEX. R. CIV. P. 198.2(c). The deemed this form of request for admissions or its service. See admissions included the following: Steffan v. Steffan, 29 S.W.3d 627, 629-631 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). The trial 3. Defendant understood from the time the court took judicial notice of the contents of its file. The account made a basis of Plaintiff's Original file included the request for admissions and proof of Petition was opened that use of the credit card service in the form of a return of service contained in the results in a loan being made to Defendant for file. the amount charged or cash advance requested. In examining the record before us, Garcia failed to 4. [**21] Defendant understood from the time timely answer the request for admissions, or to file the account made a basis of Plaintiff's Original written objections, or to file a motion to file answers late. Petition was opened that Defendant is required They were, therefore, deemed admitted. HN13 and obligated to repay all charges or cash Admissions, once deemed admitted, are judicial advances incurred on the account. admissions and Garcia may not then introduce controverting testimony in the legal proceeding related 6. Defendant made the purchases and took thereto. Shaw v. National County Mut. Fire Ins. Co., 723 cash advances using the credit card made a S.W.2d 236, 238 (Tex. App.-Houston [1st Dist.] 1986, basis of Plaintiff's Original Petition. no writ). [**23] Deemed admissions may be employed 15. Defendant did promise to pay Plaintiff for as proof, Elkins v. Jones, 613 S.W.2d 533, 534 (Tex. said account. Civ. App.-Austin 1981, no writ) (summary judgment); and once admissions are deemed admitted by operation 17. Defendant has failed to pay Plaintiff for said of law and where said admissions fully support each account. element of a cause of action, including damages, they 18. Plaintiff made written demand upon will fully support a judgment based thereon. This is Defendant for payment of said account. because unanswered requests for admissions are

3 The holding that the deemed admissions [**22] are sufficient to conclusively establish attorney's fees is an alternative holding to the sufficiency of the attorney's fee affidavit. We note that the deemed admissions would also support all of the elements of a suit for breach of contract as an alternative to Sherman's entitlement to a default judgment on liability. Page 9 of 10 229 S.W.3d 802, *812; 2007 Tex. App. LEXIS 4793, **23

deemed admitted "without the necessity of a court This was conclusive evidence of damages and order" and any matter thus admitted is "conclusively attorney's fees which could not be contradicted. We established" as being [*813] true. TEX. R. CIV. P. reverse the judgment of the trial court and render the 198.2(c), 198.3. Thus, the facts admitted may not be judgment the trial court should have rendered, TEX. R. contradicted by evidence at the trial. Marshall v. Vise, APP. P. 43.2(c), for damages in the amount of $ 767 S.W.2d 699, 700 (Tex. 1989); Shaw v. National 6,672.08, attorney's fees in the amount of $ 2,224.03, County Mut. Fire Ins. Co., 723 S.W.2d 236, 238 (Tex. prejudgment interest on $ 6,672.08 from July 13, 2004 App.-Houston [1st Dist.] 1986, no writ). to November 4, 2005 at the rate of 6% per annum, and postjudgment interest at the rate of 6% per annum on Because the trial court would have been able to the amount of the judgment from November 5, 2005 ascertain the amount of damages and attorney's fees until paid. based on the request for admissions, we conclude that the evidence conclusively established the amount of TOM GRAY damages to Sherman and attorney's fees and that the trial court erred in failing to render judgment for Chief Justice Sherman. Before Chief Justice Gray, CONCLUSION Justice Vance, and The trial court erred in determining that Sherman take Justice Reyna nothing because Sherman [**24] conclusively established the amount of Sherman's damages. Reversed and rendered Sherman was entitled to a default judgment on liability. At the trial on the merits, the file of which the trial court Opinion delivered and filed June 20, 2007 took judicial notice contained the request for admissions.

Page 10 of 10 | | Warning As of: April 7, 2015 6:02 PM EDT

Southwestern Bell Mobile Sys. v. Franco Supreme Court of Texas June 5, 1998, Delivered No. 97-0989

Reporter 971 S.W.2d 52; 1998 Tex. LEXIS 96; 41 Tex. Sup. J. 930; 14 I.E.R. Cas. (BNA) 54

SOUTHWESTERN BELL MOBILE SYSTEMS, INC., Petitioner telephone company requested review of an PETITIONER v. ODILIA FRANCO AND PATRICIA appeals court decision, which affirmed an award of MENDEZ, RESPONDENTS actual and punitive damages to respondents, customer service employees, based on intentional infliction of Prior History: [**1] ON PETITION FOR REVIEW emotional distress (IIED), and remanded for proof of FROM THE COURT OF APPEALS FOR THE attorney's fees. Six months prior to termination for THIRTEENTH DISTRICT OF TEXAS. defrauding petitioner, respondents complained of sexual harassment. Respondents, in turn, sued for retaliatory Disposition: Southwestern Bell's petition for review discharge. Petitioner asserted that the evidence was granted and, without hearing oral argument, court of legally insufficient, reinstatement was improper, and appeals' judgment on claims for intentional infliction of attorney's fees unwarranted. The lower court held that emotional distress and for punitive damages reversed, wrongful termination of respondents was so extreme and judgment rendered that Franco and Mendez take and outrageous that it supported a finding of IIED. The nothing on these claims. Court of appeals' judgment on lower court found respondents might get attorney's Franco's reinstatement affirmed. Court of appeals' fees, upon proof. One respondent sued for unlawful judgment on Franco's attorney's fees affirmed, but discrimination and requested reinstatement. judgment reversed and rendered that Mendez not Respondents sought attorney's fees under Tex. Lab. recover attorney's fees. Code § 21.259. The court reversed appeals court's judgment for IIED and punitive damages because evidence was legally insufficient. The court affirmed Core Terms one respondent's reinstatement and awarded her attorney's fees, but denied fees for remaining damages, reinstatement, attorney's fees, intentional respondent, who received only nominal damages. infliction of emotional distress, trial court, termination, outrageous, award of attorney's fees, court of appeals, Outcome fired, prevailing party, no evidence, punitive, nominal, sexual The court reversed appeals court's judgment for intentional infliction of emotional distress and punitive Case Summary damages in favor of petitioner telephone company because evidence presented by respondents, customer service employees, was legally insufficient. One Procedural Posture respondent's reinstatement and award of attorney fees Petitioner telephone company requested review of a was affirmed. The other respondent was denied fees, decision of the Court of Appeals, 13th District (Texas), as she received only nominal damages. which affirmed an award of actual and punitive damages to respondent employees, based on intentional infliction LexisNexis® Headnotes of emotional distress, and remanded for proof of attorney's fees. Petitioner asserted that the evidence was legally insufficient, reinstatement was improper, Torts > ... > Pain & Suffering > Emotional Distress > and attorney's fees were unwarranted. Evidence Torts > Intentional Torts > Intentional Infliction of Emotional Overview Distress > General Overview 971 S.W.2d 52, *53; 1998 Tex. LEXIS 96, **1

Torts > Intentional Torts > Intentional Infliction of Emotional Southwestern Bell firing the director of operations. Distress > Elements Southwestern Bell rehired Franco on a probationary basis and amended her employment file to read that HN1 To recover for the tort of intentional infliction of sexual harassment caused her absenteeism. emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the In November 1990, Southwestern Bell fired Franco and conduct was "extreme and outrageous"; (3) the Mendez for allegedly misappropriating air-time credit defendant's actions caused the plaintiff emotional certificates and defrauding Southwestern [**3] Bell. distress; and (4) the resulting emotional distress was Southwestern Bell Director of Finance Joe Villarreal severe. met with each woman to inform her of her termination and the reasons for it. Franco and Mendez subsequently Civil Procedure > ... > Standards of Review > Substantial filed charges of unlawful discrimination with the Corpus Evidence > General Overview Christi Human Relations Commission, an arm of the Texas Commission for Human Rights (TCHR). HN2 In reviewing "no evidence" points of error, the court must consider the evidence and draw all inferences in Franco and Mendez sued Southwestern Bell, alleging the light most favorable to the verdict. If the evidence is retaliatory discharge, intentional infliction of emotional legally sufficient when viewed in this light, then the court distress, and defamation. After receiving TCHR may not reverse the trial court's judgment. permission to sue for civil rights violations, Franco filed a second suit alleging unlawful discrimination and Opinion seeking reinstatement. The two suits were consolidated for trial. The jury found no defamation but did find that [*53] PER CURIAM retaliatory discharge occurred, although it awarded no damages on that claim. The jury found for and awarded Is wrongful termination of employment so extreme and Franco $ 25,500 and Mendez $ 20,000 in damages for outrageous that, without more, it will support a jury intentional infliction of emotional distress. Also, the jury finding of intentional infliction of emotional distress? awarded Franco $ 20,000 and Mendez $ 25,500 in The court of appeals held that it is. 1 It is not. punitive damages. Furthermore, the respondents' punitive damages cannot stand without the intentional-infliction claim. But, the Franco and Mendez filed multiple post-verdict motions, court of appeals' judgment is correct to the extent that it including one asking for equitable relief in the form of affirmed the trial court's order reinstating Odilia Franco. reinstatement or rehiring, and one seeking attorney's Further, there is no error in that portion of the judgment fees under section 21.259 of the Texas Labor Code, reversing and remanding the trial court's order of [**4] which allows a plaintiff who successfully alleges attorney's fees for Franco. We reverse, however, as an unlawful employment practice to collect attorney's [**2] to Patricia Mendez's attorney's fees and hold that fees. Southwestern Bell, in turn, moved for a judgment Mendez may not recover such fees. Consequently, we notwithstanding the verdict. reverse in part and affirm in part the court of appeals' judgment. The trial court rendered judgment ordering that Franco and Mendez each recover $ 68,250 plus $ 22,750 in The Corpus Christi branch of Southwestern Bell Mobile attorney's fees. It is unclear why the trial court ordered Systems employed Franco and Mendez as customer that each [*54] plaintiff recover $ 68,250 in damages service representatives. In May 1990, Southwestern when the jury awarded each of them only $ 45,500. It Bell fired Franco for numerous absences and poor job appears that the trial court may have included attorney's performance. At that time, Franco informed fees twice. The trial court also ordered Southwestern Southwestern Bell Vice President John Brantley that Bell to reinstate Franco as a collection representative. the director of operations had made unwelcome sexual Southwestern Bell appealed the finding of intentional comments to her and to other female employees. infliction of emotional distress, the award of attorney's Franco, Mendez, and several other women participated fees, and Franco's reinstatement. The court of appeals in the ensuing investigation, which resulted in affirmed Franco's reinstatement and the award of actual

1 951 S.W.2d 218. Page 2 of 5 971 S.W.2d 52, *54; 1998 Tex. LEXIS 96, **4

and punitive damages to both Franco and Mendez harassment. However, the mere fact of termination of based on intentional infliction of emotional distress. 2 employment, even if the termination is wrongful, is not [**5] The court of appeals also held that, although an legally sufficient evidence that the employer's conduct award of attorney's fees was proper in this case, Franco was extreme and outrageous under the rigorous and Mendez had not properly proven the fees. 3 The standard that we established in Twyman. 9 court of appeals remanded for proof supporting the fees. 4 [**7] Perhaps recognizing that termination alone is insufficient evidence, Franco and Mendez also We turn first to Southwestern Bell's argument that no attempted to prove that Southwestern Bell's agents evidence supports the award for intentional infliction of behaved in an extreme and outrageous manner during emotional distress. HN1 To recover for the tort of the termination. Specifically, Franco and Mendez intentional infliction of emotional distress, a plaintiff produced evidence that Southwestern Bell fired them in must prove that: (1) the defendant acted intentionally or the unnecessary presence of coworkers, forced them to recklessly; (2) the conduct was "extreme and collect and remove their belongings in front of others, outrageous"; (3) the defendant's actions caused the and immediately took steps to repossess car phones plaintiff emotional distress; and (4) the resulting that Southwestern Bell owned. This evidence falls far emotional distress was severe. 5 We are here concerned short of being legally sufficient to prove that with the second element, which requires that the Southwestern Bell's conduct was extreme and conduct be "so outrageous in character, and so extreme outrageous. 10 in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly No evidence supports the jury finding of intentional intolerable in a civilized community." 6 infliction of emotional distress, [*55] and so the finding cannot support the judgment. Additionally, because no Southwestern Bell argues that the [**6] evidence was evidence supports the claim for which actual damages legally insufficient because Franco and Mendez were awarded, we must reverse the punitive damages produced no evidence of extreme or outrageous award. 11 conduct. HN2 In reviewing "no evidence" points of error, we must consider the evidence and draw all inferences [**8] Turning to the reinstatement order, Southwestern in the light most favorable to the verdict. 7 If the evidence Bell argues that the court of appeals erred in affirming is legally sufficient when viewed in this light, then we the reinstatement order because Franco's pleadings may not reverse the trial court's judgment. 8 did not seek reinstatement, because Franco requested Franco and Mendez rely mainly upon their evidence reinstatement in a post-verdict hearing before the trial that they were fired in retaliation for reporting sexual court, and because reinstatement would disrupt

2 951 S.W.2d at 225, 226, 229. 3 951 S.W.2d at 226-27. 4 Id. 5 See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. d.). 6 Id. 7 See, e.g., Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 51 & n.1 (Tex. 1997). 8 See, e.g., Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994). 9 See Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (holding that evidence that an employer wrongfully accused an employee of thievery and fired him is legally insufficient); Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 725 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (holding that termination in violation of a whistleblower statute is not in itself extreme and outrageous); see also Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994) ("Even though conduct may violate Title VII as sexual harassment, it does not necessarily become intentional infliction of emotional distress under Texas law."). 10 See Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex. 1993); Diamond Shamrock, 844 S.W.2d at 202. 11 See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Page 3 of 5 971 S.W.2d 52, *55; 1998 Tex. LEXIS 96, **8

Southwestern Bell's workplace. We reject each of these In Farrar, the plaintiff alleged that various state-actor as grounds for reversal. First, Franco's Original Petition defendants had violated his civil rights. 15 Although the alleging unlawful employment practices "requests that jury agreed that the plaintiff's civil rights were violated, she reinstated [sic] with back pay retroactive to the date they found that the defendants' actions were of her termination." Typographical errors nevertheless not a proximate cause of the plaintiff's notwithstanding, this request very clearly states a injury. 16 The trial court entered judgment that the plaintiff reinstatement claim. Furthermore, this pleading was take nothing, and the court of appeals remanded for not superseded merely because it was consolidated entry of judgment ordering nominal damages of $ 1. 17 into the previously filed suit. 12 The United States Supreme Court considered whether the plaintiff was entitled to attorney's fees as a Second, the jury found that Southwestern Bell "prevailing party" due to the finding of civil-rights discharged Franco and Mendez in retaliation for their violations and in spite of the nominal damages. 18 The complaints of sexual harassment, an unlawful Court held that the plaintiff was within the definition of a employment practice under Texas Labor Code sections "prevailing party," but nevertheless rejected the award 21.051 and 21.055. [**9] This finding specifically of attorney's fees because the plaintiff failed to prove empowered the trial court to prohibit such acts by damages -- an essential element for recovery. 19 In injunction and to "order additional equitable relief as such a case, the Court reasoned, "the only [**11] may be appropriate . . . [including] hiring or reinstating reasonable fee is usually no fee at all." 20 with or without back pay." 13 Franco and Mendez attempted to recover attorney's Third, although Southwestern Bell produced some fees in this case under Texas Labor Code section evidence that Franco's return might be disruptive, other 21.259, which, like its federal counterpart, gives the trial evidence indicated that Southwestern Bell was opening court discretion to award reasonable attorney's fees to a new office in Corpus Christi and that Southwestern a "prevailing party." We hold that, like the Farrar plaintiff, Bell's employees would be willing to try to work with Franco and Mendez were prevailing parties within the Franco. When facts are disputed, we cannot conclude meaning of [*56] section 21.259. Therefore, we must that the trial court abused its discretion in ordering decide whether Southwestern Bell is correct in asserting reinstatement. that, despite Franco's and Mendez's status as prevailing parties, the jury's award of zero damages on the We now consider Southwestern Bell's final assertion: retaliatory discharge claim precludes an award of that the trial court abused its discretion in ordering attorney's fees. attorney's fees for Franco and Mendez because the jury awarded no damages on the retaliatory discharge claim Southwestern Bell seems to confuse the jury's verdict -- the only claim that can support an award of attorney's with the trial court's judgment. It is the judgment, not the fees. Southwestern Bell cites Farrar v. Hobby 14 for the verdict, that we must consider in determining whether proposition that a plaintiff who [**10] receives nominal attorney's fees are proper. In Farrar, [**12] the Supreme or zero damages is not entitled to attorney's fees. Court considered a judgment for nominal damages of $

12 Cf. TEX. R. CIV. P. 65. 13 TEX. LAB. CODE § 21.258(a), (b)(1). 14 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). 15 See 506 U.S. at 105-06. 16 See id. at 106. 17 See id. at 107. 18 See id. at 105. 19 See id. at 115. 20 Id. Page 4 of 5 971 S.W.2d 52, *56; 1998 Tex. LEXIS 96, **12

1. 21 In this case, we consider a judgment that ordered hearing oral argument, reverse the court of appeals' reinstatement for Franco, although it did not order judgment on the claims for intentional infliction of meaningful relief for Mendez that has not been reversed emotional distress and for punitive damages, and render on appeal. Farrar speaks to the case of a "plaintiff who judgment that Franco and Mendez [**13] take nothing seeks compensatory damages but receives no more on these claims. We affirm the court of appeals' than nominal damages." 22 Mendez is such a plaintiff, judgment on Franco's reinstatement. We also affirm the and therefore should not recover attorney's fees. court of appeals' judgment on Franco's attorney's fees, However, Farrar does not consider whether attorney's but reverse and render judgment that Mendez not fees are proper for a plaintiff who wins a judgment recover attorney's fees. awarding equitable relief, as Franco did. The award of attorney's fees to Franco was not an abuse of discretion. Opinion delivered: June 5, 1998 Under Texas Rule of Appellate Procedure 59.1, we grant Southwestern Bell's petition for review and, without

21 See id. at 107. 22 Id. at 115. Page 5 of 5 Page 1

Caution As of: Mar 30, 2015

JAMES STEPHENSON, a/k/a JIM STEPHENSON, ET AL., Appellants v. COR- PORATE SERVICES, INC., d/b/a LITHOCRAFT FINE PRINTING, Appellees

No. 12-81-0073-CV

COURT OF APPEALS OF TEXAS, Twelfth District, Tyler

650 S.W.2d 181; 1983 Tex. App. LEXIS 4283

March 31, 1983

PRIOR HISTORY: [**1] Appeal from the fees under Article 2226, V.A.C.S., in the amount of 127th Judicial District Court of Harris County, Texas. $20,000.00. A statement of facts was filed in the appeal [**2] by appellee and reflects that, after the issuance, service, COUNSEL: Thomas J. Gavronovic, Houston, Texas, for return and filing of citation in the cause the trial court Appellant. called the case for trial and conducted an evidentiary hearing on damages and attorney's fees on October 21, George M. Bishop, Houston, Texas, for Appellee. 1980. Appellee appeared by counsel and Cecil Smith, its representative, and the appellants having theretofore JUDGES: Paul S. Colley, Associate Justice. failed to appear or file answers also failed to appear at the call of the case for trial. Cecil Smith, who was the OPINION BY: COLLEY general manager of Lithocraft Fine Printing, was sworn and testified for appellee. The witness testified that he OPINION was acquainted with the appellant, James Stephenson, [*182] This is an appeal by writ of error chal- a/k/a Jim Stephenson and that Stephenson had ordered lenging the entry of a default judgment against appel- various printing jobs done and instructed the appellee to lants. On April 1, 1980, Corporate Services, d/b/a bill Franklin National Corp., Ltd., or Stephenson Foun- Lithocraft Fine Printing, hereinafter appellee, filed a suit dation therefor; that Stephenson paid previous printing with sworn account annexed against James Stephenson, bills to appellee from all of such companies; and that a/k/a Jim Stephenson, individually and doing business as $60,228.27 was due and owing and unpaid by the appel- Jim Stephenson Investments and Jim Stephenson Co., the lant to appellee on the printing account. Appellee also Stephenson Foundation, Inc., a nonprofit corporation, introduced into evidence a written agreement signed by Franklin National Corp., Ltd., a Cayman Island (foreign) appellant Jim Stephenson (Plaintiff's Exhibit No. 3, corporation and Jim Stephenson Company, Inc., a Texas Transcript p. 19) in which Jim Stephenson personally corporation, hereinafter appellants. The suit sought re- guaranteed the payment of all indebtednesses [**3] covery jointly and severally against appellants of the sum owed by Stephenson Foundation no later than December of $60,228.27 and interest thereon for an unpaid account 1, 1979. Sharolyn Wood, attorney for appellee, testified for printing services, materials and postage furnished that a reasonable attorney's fee in the case would be appellants by appellee. Appellee also sought attorney's $20,000.00. Following this hearing the trial court signed a default judgment in favor of appellee against Page 2 650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, **

appellants, jointly and severally, for $60,228.27 damag- In support of their argument appellants cite, among es, prejudgment interest in the amount of $3,486.11, and other cases, Southern Pacific Co. v. Block, 84 Tex. 21, 19 attorney's fees in the amount of $20,000.00, together S.W. 300 (Tex. 1892). It is clear that a default judgment, with all costs and with interest on the judgment sum at not supported by proper service of process, is void. In a the rate of 9% per annum until paid. On April 20, 1981, direct attack by writ of error on the judgment, no pre- appellants filed this petition for writ of error. sumption obtains from the recitation in the default judg- ment that proper service was had. Strict compliance In their brief appellants raise three points of error. with the law regarding service of process must be af- The first point alleges error in entering the default judg- firmatively shown by the transcript unless the defendants ment against appellant, Franklin National Corp., Ltd., in the judgment made an appearance before judgment. and Jim Stephenson Company, Inc., because the officer's Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 return on the citation does not show service on the proper (Tex. Comm'n App. 1935, opinion adopted); McKanna v. party. The return [*183] on the citation served on Edgar, 388 S.W.2d 927 (Tex. 1965). appellant, Franklin National Corp., Ltd., reads: In our case, Franklin National Corp., Ltd., was CONSTABLE'S RETURN named as a defendant upon whom service could be had Received this writ on the 23 of July, 1980 at 10:23 by serving the president, Jim Stephenson. As above set o'clock A.M., and executed the same in Harris County, forth the return made by the deputy constable recites that Texas, on the 27 day of Sept., 1980, at 7:50 [**4] the citation (writ) was executed by ". . . summoning the o'clock P.M., by summoning the FRANKLIN NA- Franklin National Corp . . . ." The question then is posed, TIONAL CORP., does the well-established "strict compliance" rule an- nounced in Flynt and McKanna above render the default (by delivering to JIM STEPHENSON, in person, a judgment void [**6] as to Franklin National Corp., corporation President Ltd., because the officer's return failed to write the word (by leaving in the principal office during office "Ltd." after the word "Corp."? Appellants argue that hours Southern Pacific Co., supra, controls. We do not agree. In that case plaintiff intended to sue Southern Pacific of said CORPORATION a true copy of this Company, but in fact sued Southern Pacific Railroad writ, together with accompanying certified copy plain- Company. The citation was directed to Southern Pacific tiff's original petition. Railroad Company and the return showed service on ED "TRACY" MAXON, Constable Precinct No. 5 Southern Pacific Company. In the case before us ap- Harris County, Texas pellee named the appellant, Franklin National Corp., Ltd., as a party defendant. The citation directed service By /s/ J. LOOP, Deputy on Franklin National Corp., Ltd., by serving Jim Ste- The return on the citation served on appellant, Jim phenson as president. The return though reciting service Stephenson Company, Inc., reads: was accomplished by summoning Franklin National Corp. by delivery to Jim Stephenson as president a true CONSTABLE'S RETURN copy of the writ and a ". . . certified copy of Plaintiff's Received this writ on the 23 day of July, 1980 at Original Petition." Southern Pacific Co. is obviously 10:23 o'clock A.M., and executed the same in Harris distinguishable on the facts as shown by the transcript County, Texas, on the 27 day of Sept., 1980, at 7:50 here. In that case the intended defendant was not o'clock P.M., by summoning the JIM STEPHENSON named in the pleading and the citation was not directed COMPANY, INC., to Southern Pacific Co., but to Southern Pacific Railroad Co. (by delivering to JAMES STEPHENSON, in person, a corporation PRESIDENT Service of process in this case is governed by Article [**7] 2.11, Texas Business Corp. Act, V.A.C.S., which (by leaving in the principal office during office reads in part: "A. The president . . . of the corporation hours shall be agent of such corporation upon whom any pro- of the said CORPORATION a true copy of cess, notice, . . . may be served." this writ, together with accompanying certified copy [*184] We have carefully reviewed the transcript plaintiff's original petition. in this case and note that in Paragraph 1 of appellee's ED "TRACY" MAXON, Constable Precinct No. 5 original petition it is alleged, "Defendant Franklin Na- Harris County, Texas tional Corp., Ltd., may be served with citation by serving its president, Jim Stephenson . . . in Harris County, Tex- By /s/ J. LOOP [**5] , Deputy as." The purpose of citation is to give notice to a de- Page 3 650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, **

fendant that he has been sued and by whom and for what By their second point appellants attack the suffi- so that due process will be served and the defendant will ciency of the sworn account attached to the petition as have an opportunity to appear and defend the action. being insufficiently itemized, and [**10] by their third Sgitcovich v. Sgitcovich, 236 S.W.2d 861, 864 (Tex. Civ. point claim the default judgment must be struck down App. -- Galveston 1951), rev'd on other grounds, 150 because of variances between invoices and itemized ac- Tex. 398, 241 S.W.2d 142; Gilbert v. Lobley, 214 S.W.2d counts. Appellants do not point out or set forth any such 646, 650 (Tex. Civ. App. -- Fort Worth 1948, no writ). claimed discrepancies or cite any authorities to support In this case an examination of the full record, including the point. However, we have carefully reviewed the the pleadings of appellee and the citation and return account and pleading of the appellee and find that the thereon, shows affirmatively that appellant, Franklin petition alleges the sale and delivery of services and National Corp., Ltd., was served with proper process goods, wares and merchandise described in Exhibit A; sufficient to put it upon notice of the suit. [**8] See, the petition further alleges that the appellants promised Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394 to pay and failed to do so, and alleged reasonable attor- (Tex. Civ. App. -- Fort Worth 1981, writ ref'd n.r.e.). ney's fees on the part of the appellee in the sum of And in so holding we decline to follow Mecca Fire Ins. $20,000.00. Exhibit A attached to the pleading includes Co. v. Campbell, 145 S.W. 630 (Tex. Civ. App. -- Gal- the affidavit of the account in proper form with a sum- veston 1912, no writ) and adopt the statement in that case mary of the individual transactions and their respective made in dissent by Justice Reese at 632: ". . . It would dates, which are the subject matter of this suit, and the seem to be a sacrifice of substance to form . . ." to hold amount due on each of said invoices. Ledger sheets at- in this case that Jim Stephenson alleged to be the presi- tached to [*185] the account also show a systematic dent of Franklin National Corp., Ltd., was not apprised entry of credits and debits in the account and the result- by the service here that Franklin National Corp., Ltd., ing balances and dates thereof beginning on April 30, was sued by appellee. In fact, the transcript reflects that 1979, and ending on January 31, 1980. Then follows on October 30, 1980, (within ten days after the entry of seven individual invoices as a part of the account, num- the default judgment) appellant Franklin National Corp., bered and dated with adequate [**11] description of Ltd., filed a motion to set aside the default judgment and printing jobs done and charges therefor, together with the for new trial on the grounds that Jim Stephenson was not dates thereof. Therefore we hold that appellee suffi- an officer of said company and was not authorized to ciently complied with Tex. R. Civ. P. 185, and that the accept service. This motion was overruled on Novem- account shows with a reasonable degree of certainty the ber 26, 1980, and the form of the order was approved by nature each item, i.e., each printing job done, the charges appellant's counsel, Thomas J. Gavranovic. We believe made therefor and the dates of each transaction. Bou- that we have given the officer's return a fair, reasonable cher v. City Paint & Supply, Inc., 398 S.W.2d 352 (Tex. and natural construction, and considering the record as a Civ. App. -- Tyler 1966, n.w.h.); see also Williamsburg [**9] whole, have given effect to the plain meaning and Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168 intent of the citation and return. 72 C.J.S., Process Sec- (Tex. Civ. App. -- Houston [1st Dist.] 1970, n.w.h.). tion 97; 62 Am Jur 2d, Process, Section 165. Appellant's second point is overruled. All other cases cited on this point by appellant, in- As earlier stated in the opinion an evidentiary hear- cluding Brown-McKee, Inc. v. J. F. Bryan & Assoc., 522 ing was conducted by the trial court on the issue of S.W.2d 958 (Tex. Civ. App. -- Texarkana 1975, no writ), damages and attorney's fees. In that hearing appellee are all distinguishable on their facts. introduced sufficient evidence to establish the furnishing of the printing services, materials and postage by appel- Appellants' point 1, as it refers to the service of pro- lee to appellants which was the subject of the sworn ac- cess on Jim Stephenson Company, Inc., contends that count. The testimony of Mr. Smith established the debt since the citation directed service on it by serving Jim as being unpaid in the amount sued for. No complaint is Stephenson, its president, and the return shows that the made in this appeal regarding the sufficiency of the evi- process was delivered to James Stephenson, its president, dence to support the award of attorney's fees made by the such is fatally defective. There is no merit to such ar- trial court because [**12] of the nature of the mode of gument. The officer's return that James Stephenson was review of the judgment sought by appellants. Thus, president of the corporation is prima facie evidence of since we have found that Franklin National Corp., Ltd., that fact. Employer's Reinsurance Corp. v. Brock, 74 and Jim Stephenson Company, Inc., are properly before S.W.2d 435 (Tex. Civ. App. -- Eastland 1934, writ dis- the court, that appellee alleged a cause of action requir- m'd); LaFleaur v. Switzer, et al., 109 S.W.2d 239 at 241 ing an answer on the part of all appellants, each of whom (Tex. Civ. App. -- Beaumont 1937, no writ). Appel- failed to appear and answer but wholly made default, the lant's point 1 is overruled. cause of action alleged was admitted. Watson v. Shep- pard Federal Credit Union, 589 S.W.2d 742, 744 (Tex. Page 4 650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, **

Civ. App. -- Fort Worth 1979, writ ref'd n.r.e.); proper no writ); Jones v. Ben Maines Air Conditioning, 621 proof of damages and attorney's fees being made, the S.W.2d 437 (Tex. Civ. App. -- Texarkana 1981, no writ). default judgment is upheld. TXXN, Inc. v. D/FW Steel The judgment of the trial court is affirmed. Co., 632 S.W.2d 706, 707 (Tex. App. -- Fort Worth 1982, | | Caution As of: April 7, 2015 6:03 PM EDT

Sutton v. Hisaw & Assocs. Gen. Contrs., Inc. Court of Appeals of Texas, Fifth District, Dallas November 30, 2001, Opinion Filed No. 05-01-00002-CV

Reporter 65 S.W.3d 281; 2001 Tex. App. LEXIS 8001

RANDY SUTTON, Appellant v. HISAW & ASSOCIATES purchased materials from an electric supply company. GENERAL CONTRACTORS, INC. AND RICHARD L. Later, the worker signed two partial lien releases stating HISAW INDIVIDUALLY, Appellees all materials used in the field house were paid for. He signed these lien releases as "co-owner of the Subsequent History: [**1] Rehearing Denied January subcontractor." The materials were never paid for. The 14, 2002. Released for Publication January 14, 2002. supplier sued the contractor and recovered a large Petition for Review Denied March 28, 2002. judgment. The contractor then sued the worker. On appeal, the worker contended there was insufficient Prior History: On Appeal from the 44th Judicial District evidence to establish the essential elements of the Court. Dallas County, Texas. Trial Court Cause No. contractor's fraud cause of action. Because the appeals DV99-05835. court found there was no evidence of either reliance or damages caused by any misrepresentation, it held the Disposition: REVERSED and RENDERED. evidence was legally insufficient to support the judgment in favor of the contractor based on his fraud cause of Core Terms action. The absence of any evidence to support at least one element of each of the contractor's causes of action constituted error apparent on the face of the record. Contractors, materials, no evidence, cause of action, damages, contends, trial court's judgment, legal Outcome insufficiency, default judgment, field house The appeals court reversed the trial court's judgment and remanded the case. Case Summary LexisNexis® Headnotes Procedural Posture

After losing a money judgment to another party, plaintiff Civil Procedure > Remedies > Writs > General Overview contractor filed a lawsuit against defendant worker to Governments > Legislation > Statute of Limitations > Time recover the damages awarded in the prior suit. The Limitations contractor asserted causes of action for fraud, breach of contract, and quantum meruit. The 44th Judicial HN1 A restricted appeal is a direct attack on a trial District Court, Dallas County, Texas, rendered a court's judgment. A restricted appeal must (1) be brought post-answer default judgment in favor of the contractor. within six months after the trial court signs the judgment, The worker later filed a notice of restricted appeal. (2) by a party to the suit who did not participate in the actual trial, and (3) the error complained of must be Overview apparent on the face of the record.

The contractor was the general contractor for a Civil Procedure > Remedies > Writs > General Overview construction project to build a field house for a school district. Contractor hired a subcontractor to perform the HN2 In a restricted appeal, an appellant is afforded the electrical work. The worker was an employee of the same scope of review as an ordinary appeal, which subcontractor. In performing its work, the subcontractor includes a review of the entire case. A review of the 65 S.W.3d 281, *281; 2001 Tex. App. LEXIS 8001, **1

entire case includes a review of legal and factual Contracts Law > Remedies > Equitable Relief > General sufficiency claims. Overview

Civil Procedure > Appeals > Standards of Review > General HN7 The elements of a quantum meruit claim include Overview proof of (1) valuable services that were rendered or materials furnished, (2) for the person sought to be HN3 A legal sufficiency, or no-evidence point of error, is charged, (3) which services and materials were a question of law. An appellant who is challenging the accepted by the person sought to be charged, used, legal sufficiency of the evidence must demonstrate that and enjoyed by him, (4) under such circumstances as no evidence exists to support the judgment. In reviewing reasonably notified the person sought to be charged a legal sufficiency point of error, an appellate court that the plaintiff in performing such services was looks to see whether any evidence supports the expecting to be paid by the person sought to be charged. judgment. If there is more than a scintilla of evidence, the appellate court upholds the judgment. Counsel: FOR APPELLANT: Robert Smith Morris, The Hammerle Law Firm, Denton, Tx. Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review FOR APPELLEES: Jeffrey Robert Sandberg, McGuire, HN4 When an appellant challenges the factual Craddock & Strother, P.C., Dallas, TX. sufficiency of the evidence, the appellant must establish the evidence is factually insufficient to support the Judges: Before Justices Kinkeade, Richter, and judgment. In reviewing such issues, an appellate court Francis. Opinion By Justice Richter. considers all the evidence presented at trial. The appellate court may only set aside a finding for factual Opinion by: MARTIN RICHTER insufficiency if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and Opinion unjust. Opinion By Justice Richter Torts > Business Torts > Fraud & Misrepresentation > General Overview [*283] In this restricted appeal, Randy Sutton contends the trial court erred in rendering a post-answer default HN5 A fraud cause of action requires: (1) a material judgment in favor of Hisaw & Associates General misrepresentation, (2) that was either known to be false Contractors, Inc. and Richard L. Hisaw individually when made or was asserted without knowledge of its (collectively Hisaw), because the evidence is legally truth, (3) which was intended to be acted upon, (4) and factually insufficient. We agree with Sutton that the which was relied upon, and (5) which caused injury. evidence is legally insufficient and, therefore, reverse the trial court's judgment. Contracts Law > Breach > Breach of Contract Actions > General Overview BACKGROUND Contracts Law > Breach > Breach of Contract Actions > Elements of Contract Claims Hisaw was the general contractor for a construction project to build a field house for the Carrollton Contracts Law > Breach > General Overview Independent School District. Hisaw hired D.R. Contracts Law > Standards of Performance > Delivery & Contractors as a subcontractor to perform electrical Tender work [*284] on the field house. Sutton was an employee Contracts Law > Remedies > Equitable Relief > Quantum of D.R. Contractors. In performing this subcontracting Meruit work, D.R. Contractors purchased materials from Crawford Electric Supply Company (Crawford). HN6 The elements of a breach of contract action are (1) Subsequently, Sutton signed two partial lien releases the existence of a valid contract, (2) performance or stating that, as of particular dates, all materials [**2] tendered performance by the plaintiff, (3) breach of the used in building the field house were paid for. Sutton contract by the defendant, and (4) damages sustained signed these lien releases as "co-owner of D.R. by the plaintiff as a result of the breach. Contractors." These facts are undisputed. Page 2 of 4 65 S.W.3d 281, *284; 2001 Tex. App. LEXIS 8001, **2

Hisaw makes various other allegations in the petition. HN3 A legal sufficiency, or no-evidence point of error, is The petition states Hisaw paid D.R. Contractors for its a question of law. R.S. v. B.J.J., 883 S.W.2d 711, 715 work, primarily based on the assertions in the liens. (Tex. App.-Dallas 1994, no writ). An appellant who is Subsequently, Hisaw received notice from Crawford challenging the legal sufficiency of the evidence must that it had not been paid for the materials D.R. demonstrate that no evidence exists to support the Contractors used on the field house. Crawford judgment. Casino Magic Corp. v. King, 43 S.W.3d 14, eventually filed suit against Hisaw and recovered a 19 (Tex. App.-Dallas 2001, pet. denied). In reviewing a judgment in the amount of $ 148,398.38. legal sufficiency point of error, we look to see whether any evidence supports the judgment. See id. If there is Hisaw then instituted this lawsuit against Sutton and more than a scintilla of evidence, we uphold the others to recover the damages awarded in the Crawford judgment. See id. In contrast, HN4 when an appellant suit. Hisaw asserted causes of action for fraud, breach challenges the factual sufficiency of the evidence, the of contract, quantum meruit, and indemnity by express appellant must establish the evidence is factually agreement. Sutton filed a general denial. Sutton did not insufficient to support the judgment. See id. In reviewing appear for trial, and the trial court rendered a such issues, we consider [*285] all the evidence post-answer default judgment. Three months later, after presented at trial. See R.S., 883 S.W.2d at 715. We the time expired for filing a traditional appeal, Sutton may only set aside a finding for factual insufficiency if it filed a notice of restricted appeal. is so contrary to the overwhelming weight of the evidence as to be clearly wrong and [**5] unjust. See id. DISCUSSION In this case, Sutton argues there is no evidence, or In issue one, Sutton contends he has met the factually insufficient evidence, to support the judgment. requirements for a restricted appeal. HN1 A restricted Specifically, Sutton contends Hisaw presented appeal is a direct attack on the trial court's judgment. insufficient evidence of reliance and damages. [**3] Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991). A restricted HN5 A fraud cause of action requires: (1) a material appeal must (1) be brought within six months after the misrepresentation, (2) that was either known to be false trial court signs the judgment, (2) by a party to the suit when made or was asserted without knowledge of its who did not participate in the actual trial, and (3) the truth, (3) which was intended to be acted upon, (4) error complained of must be apparent on the face of the which was relied upon, and (5) which caused injury. record. Norman Communications v. Tex. Eastman Co., Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 955 S.W.2d 269, 270 (Tex. 1997). HN2 In a restricted 2001) (citing Formosa Plastics Corp. U.S.A. v. Presidio appeal, an appellant is afforded the same scope of Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. review as an ordinary appeal, which includes a review 1998)). of the entire case. Id. A review of the entire case includes a review of legal and factual sufficiency claims. After Sutton did not appear for trial, Hisaw moved for a Id. default judgment. At the default judgment hearing, Hisaw called no witnesses to testify. Instead, Hisaw offered the Hisaw concedes Sutton has met the first two following: (1) the contract between D.R. Contractors requirements for a restricted appeal, and we agree. and Hisaw, (2) two partial waivers of liens signed by Sutton brought the appeal within six months of the Sutton as co-owner of D.R. Contractors, (3) a transcript judgment. He was also a party to the suit, but did not of Sutton's testimony in a different case, (4) a judgment participate in the trial. Therefore, we resolve issue one from a different case, and (5) an affidavit of attorney's in Sutton's favor and have jurisdiction to review the fees. record to determine whether there is error on the face of the record. We now review this evidence presented at the hearing [**6] to determine whether Hisaw presented any In issue two, Sutton challenges the legal and factual evidence of the essential elements of his fraud cause of sufficiency of the evidence to support the trial court's action. In the petition, Hisaw contends he paid Sutton judgment. Sutton [**4] contends there was no evidence for the materials and labor based on the assertions in or, alternatively, insufficient evidence to establish the the waivers, particularly the assertion that all materials essential elements of Hisaw's fraud cause of action. had been paid for. At the hearing on the default Page 3 of 4 65 S.W.3d 281, *285; 2001 Tex. App. LEXIS 8001, **6

judgment, Hisaw presented the waivers, but presented services was expecting to be paid by the person sought no evidence establishing that he paid Sutton based on to be charged. Bashara v. Baptist Mem'l Hosp. Sys., any assertions in the waivers. Therefore, Hisaw 685 S.W.2d 307, 310 (Tex. 1985). Hisaw presented no presented no evidence that he relied on any evidence that he presented services or materials to misrepresentations. In addition, Hisaw contends Sutton. Therefore, there is legally insufficient evidence Crawford sued him for payment of materials D.R. to establish a quantum meruit cause of action. Contractors used on the field house and recovered a judgment in the amount of $ 148,398.38. However, Finally, as to Hisaw's cause of action for indemnity by while Hisaw offered a judgment in a suit between express agreement, we acknowledge that the partial Crawford and Hisaw awarding this exact amount of waiver of lien provides at least some evidence of an damages, he did not present any evidence tying this agreement for Sutton to indemnify Hisaw for any judgment to any actions of Sutton. Therefore, there is damages "sustained by reason of labor performed no evidence of injury caused by any misrepresentation. and/or materials and supplies furnished . . . on said Because we conclude there is no evidence in the record project." However, Hisaw presented no evidence to of either reliance or damages caused by any support his allegation he was sued for materials that misrepresentation, we conclude the evidence is legally were not paid for by D.R. Contractors and Sutton. insufficient to support the trial court's judgment in favor Without evidence of such a suit, there is no evidence of Hisaw based [**7] on his fraud cause of action. Sutton is liable for failure to indemnify. Therefore, there is legally insufficient evidence to establish a cause of Hisaw also asserted causes of action for breach of action for indemnity. contract, quantum meruit, and indemnity by express agreement. HN6 The elements of a breach of contract The absence of any evidence to support at least one action are (1) the existence of a valid contract, (2) element of each of Hisaw's causes of action constitutes performance or tendered performance by the plaintiff, error apparent on the face of the record. See Casino (3) breach of the contract by the defendant, and (4) Magic Corp., 43 S.W.3d at 20. [**9] We resolve Sutton's damages sustained by the plaintiff as a result of the second issue in his favor. breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.-Houston [14th Dist.] 2000, no pet.). We have CONCLUSION already concluded Hisaw failed to establish any damages as a result of any actions caused by Sutton. Our disposition of Sutton's second issue makes it Therefore, Hisaw failed to present any evidence of one unnecessary for us to consider his remaining issues. of the elements of a breach of contract action and, thus, See TEX. R. APP. P. 47.1. Having concluded there is failed to present legally sufficient evidence to establish legally insufficient evidence to support the judgment, a breach of contract. we are required to reverse and render. See Nat'l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. HN7 The elements of a quantum meruit claim include 1969). We reverse the trial court's judgment and render proof of (1) valuable services that were rendered or judgment that Hisaw take nothing on his claims against materials furnished, (2) for the person sought to be Sutton. charged, (3) which services and materials were accepted by the person sought to be charged, used, MARTIN RICHTER and enjoyed by him, (4) [*286] under such circumstances as reasonably notified the person sought JUSTICE to be charged that the plaintiff in performing [**8] such

Page 4 of 4 | | Caution As of: April 7, 2015 6:04 PM EDT

Texas Commerce Bank v. New Supreme Court of Texas September 9, 1999, Opinion Delivered NO. 98-0744

Reporter 3 S.W.3d 515; 1999 Tex. LEXIS 105; 42 Tex. Sup. J. 1175

TEXAS COMMERCE BANK, NATIONAL bank, which resulted in losses to petitioner bank. The ASSOCIATION, N/K/A CHASE BANK OF TEXAS, scheme involved deposits of insufficient funds checks NATIONAL ASSOCIATION, PETITIONER v. ROBIN from the two banks to make it appear that each account NEW D/B/A RIVER CITY AUTO SALES AND WILLIAM had more on deposit than was actually the case. The PACHECO D/B/A PACHECO MOTOR CAR SALES, other bank discovered the scheme and stopped RESPONDENTS payment on its checks, resulting in debits and overdrafts being charged by petitioner. Petitioner sued for fraud, Subsequent History: [**1] As Amended September 9, breach of contract, conspiracy, and civil theft. When 1999. respondents failed to answer, default judgment was entered and damages and attorneys' fees were awarded Prior History: ON PETITION FOR REVIEW FROM on the basis of affidavits submitted by petitioner. The THE COURT OF APPEALS FOR THE THIRD judgment was upheld on appeal, but the damages and DISTRICT OF TEXAS. fees award was reversed. Petitioner sought review. In affirming with respect to the default judgment, but Disposition: Reversed the judgment on the issue of reversing with respect to the damages and fees issue, damages and attorney's fees, and remanded to the trial the court ruled that Tex. R. Civ. P. 243 and 802 did not court for entry of judgment for Texas Commerce Bank bar use of affidavits as evidence of unliquidated consistent with this opinion. damages. Because unobjected-to hearsay constituted probative evidence, affidavits satisfied the requirement Core Terms of rule 243 that there be evidence of unliquidated damages.

attorney's fees, legally sufficient, court of appeals, Outcome hearsay, unliquidated damages, default judgment, The judgment was affirmed with respect to the issue of damages, trial court, deposit, checks liability under the default judgment, but reversed on the damages and fees issue, because respondents failed Case Summary to answer the complaint and because affidavits could constitute probative evidence for purposes of an Procedural Posture unliquidated damages hearing. Petitioner bank sought review of the judgment of the Court of Appeals for the Third District of Texas that LexisNexis® Headnotes affirmed the default judgment entered by the trial court, but reversed the award of unliquidated damages and Civil Procedure > Judgments > Pretrial Judgments > attorneys' fees based solely on affidavits submitted by General Overview petitioner, in an action claiming fraud, breach of contract, Civil Procedure > ... > Pretrial Judgments > Default & conspiracy, and civil theft by respondent car salesmen. Default Judgments > Default Judgments

Overview Contracts Law > ... > Types of Damages > Compensatory Damages > General Overview Respondent salesmen were partners in a series of cyclical transactions involving petitioner and another Torts > Remedies > Damages > General Overview 3 S.W.3d 515, *515; 1999 Tex. LEXIS 105, **1

HN1 See Tex. R. Civ. P. 243. Locke Liddell & Sapp, Austin, TX. Ms. Barbara M. Ellis, Austin, TX. Ms. Susan P. Kravik, Chase Bank of Texas, Evidence > ... > Statements as Evidence > Hearsay > National Association, Dallas, TX. General Overview For RESPONDENT: Mr. William B. Gammon, Austin, HN2 See Tex. R. Civ. P. 802. TX. Civil Procedure > Judgments > Pretrial Judgments > General Overview Opinion Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > General Overview [*515] Per Curiam

Civil Procedure > ... > Pretrial Judgments > Default & Texas Commerce Bank obtained a default judgment Default Judgments > Default Judgments against Robin New, d/b/a River City Auto Sales, and Contracts Law > ... > Types of Damages > Compensatory William Pacheco, d/b/a Pacheco's Motor Car Sales. To Damages > General Overview support its motion for default judgment, Texas Commerce presented three affidavits. No oral testimony Torts > Remedies > Damages > General Overview was taken at the default judgment hearing. On appeal, HN3 Nothing in Tex. R. Civ. P. 802 limits its application the court of appeals held that the affidavits, constituting to contested hearings. The rule is not ambiguous and hearsay, were not evidence under Rule 243 of the requires no explication. Because unobjected to hearsay Texas Rules of Civil Procedure, which requires that the constitutes probative evidence, it satisfies the trial court "hear evidence" on unliquidated [*516] requirement of Tex. R. Civ. P. 243 that there be evidence damages. 1 The court of appeals further held that even of unliquidated damages. Thus, a trial court does not err if affidavits constitute [**2] evidence under Rule 243, when it considers affidavits in rendering a default these affidavits were not legally sufficient to support the judgment. trial court's judgment. Accordingly, the court of appeals affirmed on the issue of New and Pacheco's liability and Civil Procedure > Judgments > Pretrial Judgments > reversed and remanded for a new trial on the issue of General Overview unliquidated damages and attorney's fees. 2 Civil Procedure > ... > Pretrial Judgments > Default & We conclude that because unobjected-to hearsay is, as Default Judgments > General Overview a matter of law, probative evidence, affidavits can be Civil Procedure > ... > Pretrial Judgments > Default & evidence for purposes of an unliquidated-damages Default Judgments > Default Judgments hearing pursuant to Rule 243. We further conclude that the affidavits here are legally sufficient to support the Contracts Law > ... > Types of Damages > Compensatory trial court's judgment on both damages and attorney's Damages > General Overview fees. Consequently, we affirm the court of appeals' HN4 Testimony of the total amount due under a written judgment on the issue of liability, reverse on the issue of instrument is legally sufficient to support an award of unliquidated damages and attorney's fees, and render that amount in a default judgment proceeding. judgment for Texas Commerce Bank. At the outset, Texas Commerce contends that New and Civil Procedure > Remedies > Costs & Attorney Fees > Pacheco did not preserve for the court of appeals' General Overview consideration the issues of whether [**3] the affidavits HN5 An uncontested affidavit that establishes a prima constituted evidence of unliquidated damages under facie case for attorney's fees is legally sufficient to Rule 243 or whether the affidavits, if evidence, were support an attorney's fees award. legally sufficient. We assume without deciding that these issues were properly preserved. Counsel: For PETITIONER: Mr. C.W. "Rocky" Rhodes, In addressing the merits, the court of appeals correctly Locke Liddell & Sapp, Austin, TX. Mr. G. Alan Waldrop, stated:

1 TEX. R. CIV. P. 243. 2 971 S.W.2d 711. Page 2 of 4 3 S.W.3d 515, *516; 1999 Tex. LEXIS 105, **5

It is well settled that once a default judgment is taken damages and attorney's fees. This the trial court against a non-answering defendant on an unliquidated granted. And the court of appeals reversed in part. claim, all allegations of fact set forth in the petition are deemed admitted, except the amount of damages. [**5] The first issue is whether affidavits constitute [citations omitted] 3 evidence as required by Rule 243. That rule provides:

HN1 If the cause of action is unliquidated or be not Therefore, we know that New and Pacheco were proved by an instrument in writing, the court shall hear partners in a check-kiting scheme that resulted in a loss evidence as to damages and shall render judgment to Texas Commerce. New would deposit checks into his therefor, unless the defendant shall demand and be Texas Commerce account drawn against insufficient entitled to a trial by jury in [*517] which case the funds in Pacheco's Norwest Bank checking account. judgment by default shall be noted, a writ of inquiry Before the normal banking deadlines for return of items awarded, and the cause entered on the jury docket. 5 drawn on insufficient funds ran, New would write checks on the Texas Commerce account for deposit in Although several courts of appeals have held that Pacheco's Norwest account to cover the overdraft affidavits can constitute evidence of unliquidated created [**4] in the Norwest account by the previous damages, 6 the court of appeals here held that they day's checks. Then Pacheco would write additional cannot. It concluded that Rule 802 of the Texas Rules of checks from the Norwest account for deposit to the Evidence, the hearsay rule, prevents the use of affidavits Texas Commerce account to cover the overdraft that "because the application of Rule 802 anticipates would appear in New's Texas Commerce account. This opposing counsel's and/or an opposing party's presence scheme had the effect of keeping a group of checks at the hearing to object to such inadmissible hearsay." 7 "floating" in the banking system that were not supported It further concluded, therefore, that a trial court does not by real deposits. Norwest discovered this scheme and hold "an evidentiary [**6] hearing merely by accepting stopped payment on all checks drawn from Pacheco's the affidavits attached to [the] motion." 8 Norwest account. As a result, several items New deposited in his Texas Commerce account were The court of appeals is incorrect. HN2 Rule 802 says, returned. Texas Commerce charged these items as "Inadmissible hearsay admitted without objection shall debits on New's account, resulting in an overdraft that not be denied probative value merely because it is neither New nor Pacheco covered. hearsay." 9 HN3 Nothing in rule 802 limits its application to contested hearings. The rule is not ambiguous and Texas Commerce filed suit against New and Pacheco requires no explication. Consequently we will give it for various causes of action, including fraud, breach of none. [**7] 10 Because unobjected to hearsay contract, conspiracy to defraud, and violations of the constitutes probative evidence, it satisfies the civil theft statute. 4 When New and Pacheco did not requirement of Rule 243 that there be evidence of answer, Texas Commerce filed a motion for default unliquidated damages. The trial court did not err when it judgment asking among other relief to be awarded considered the affidavits in rendering its default

3 971 S.W.2d at 713. 4 See TEX. CIV. PRAC. & REM. CODE §§ 134.001-.005. 5 TEX. R. CIV. P. 243 (emphasis added). 6 See, e.g., Irlbeck v. John Deere Co., 714 S.W.2d 54, 57-58 (Tex. App.--Amarillo 1986, writ ref'd n.r.e.); K-Mart Apparel Fashions Corp. v. Ramsey, 695 S.W.2d 243, 247 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Naficy v. Braker, 642 S.W.2d 282, 285 (Tex. App. --Houston [14th Dist.] 1982, writ ref'd n.r.e.); Angelo v. Champion Restaurant Equip. Co., 702 S.W.2d 209, 211 (Tex. App.--Houston [1st Dist.] 1985), rev'd on other grounds, 713 S.W.2d 96 (Tex. 1986). 7 971 S.W.2d at 714. 8 Id. 9 TEX. CIV. R. EVID. 802; see also Irlbeck, 714 S.W.2d at 57-58 (concluding that Rule 802 provides for hearsay admitted without objection to support a default judgment for damages and attorney's fees). 10 See Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994). Page 3 of 4 3 S.W.3d 515, *517; 1999 Tex. LEXIS 105, **7

judgment. counsel G. Alan Waldrop, was legally sufficient to support the trial court's attorney's fees award. Waldrop The court of appeals also concluded that the affidavits testified that among other things, Texas Commerce had here were conclusory and, therefore, not legally sufficient to support the trial court's award for a contract with New entitling Texas Commerce to unliquidated damages and attorney's fees. 11 Texas recover its reasonable attorneys' fee. He further testified Commerce presented three affidavits at the default that he is a duly licensed attorney, that he was familiar judgment hearing. Two of the affidavits were from Texas with the usual and customary attorney's fees in Travis Commerce vice presidents, Thomas Neville and Richard County, [*518] and, based on his knowledge of the Bott. Neville explained the details of the check-kiting services rendered to Texas Commerce on this matter, scheme and that, as a [**8] result, the Texas Commerce which he detailed, $ 30,000 was a reasonable fee for account had a considerable overdraft balance. Bott prosecuting Texas Commerce's claims. This was legally stated that he had reviewed pertinent bank records and sufficient to support the trial court's judgment for that the Texas Commerce account was overdrawn in attorney's fees. 13 the amount of $ 729,510.96. [**10] Accordingly, pursuant to Rule 59.1 of the Texas HN4 Testimony of the total amount due under a written Rules of Appellate Procedure, the Court grants the instrument is legally sufficient to support an award of petition for review of Texas Commerce Bank and, that amount in a default judgment proceeding. 12 Texas without hearing oral argument, affirms the court of Commerce's bank officers' affidavits aver personal appeals' judgment on liability, reverses the judgment on knowledge of the facts, describe the scheme resulting the issue of damages and attorney's fees, and remands in the bank's loss, and identify the total amount owed on the overdrawn Texas Commerce account. The affidavits to the trial court for entry of judgment for Texas are legally sufficient to support the trial court's damage Commerce Bank consistent with this opinion. award. Opinion delivered: September 9, 1999 [**9] The third affidavit, from Texas Commerce legal

11 971 S.W.2d at 714-15. 12 See Irlbeck, 714 S.W.2d at 57-59. See also, e.g., 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.); American 10-Minute Oil Change, Inc. v. Metropolitan Nat'l Bank-Farmers Branch, 783 S.W.2d 598, 601 (Tex. App.--Dallas 1989, no writ). 13 See, e.g., Cap Rock Elec. Coop. v. Texas Utils. Elec. Co., 874 S.W.2d 92, 101-02 (Tex. App.--El Paso 1994, no writ) (uncontested HN5 affidavit establishing prima facie case for attorney's fees legally sufficient to support attorney's fees award); Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex. App.--Dallas 1990, no writ). Page 4 of 4 Page 1

Caution As of: Mar 30, 2015

JOHN VERBURGT, INDIVIDUALLY AND A/N/F OF THOMAS VERBURGT, TIMOTHY VERBURGT AND JOSEPH VERBURGT, PETITIONERS v. PATRI- CIA M. DORNER AND THE METHODIST MISSION HOME, RESPONDENTS

No. 96-1026

SUPREME COURT OF TEXAS

959 S.W.2d 615; 1997 Tex. LEXIS 124; 41 Tex. Sup. J. 138

April 24, 1997, Argued December 4, 1997, Delivered

PRIOR HISTORY: [**1] ON APPLICATION permits parties to file a motion to extend. We therefore FOR WRIT OF ERROR TO THE COURT OF AP- reverse the judgment of the court of appeals and remand PEALS FOR THE NINTH DISTRICT OF TEXAS. to that court.

DISPOSITION: Reversed and remanded. 1 The Texas Rules of Appellate Procedure were renumbered and substantially revised on September 1, 1997. See 60 TEX. B.J. 876 (1997). JUDGES: JUSTICE SPECTOR delivered the opinion of All references to the Rules of Appellate Proce- the Court, in which CHIEF JUSTICE PHILLIPS, JUS- dure in this opinion are to the rules in effect be- TICE GONZALEZ, JUSTICE HECHT, AND JUSTICE fore that date. OWEN join. JUSTICE ENOCH, joined by JUSTICE [**2] Verburgt, in his individual capacity and as ABBOTT AND JUSTICE HANKINSON, filed a dis- his children's next friend, sued Constance Clear, Patricia senting opinion. JUSTICE BAKER filed a dissenting Dorner, and the Methodist Mission Home for intentional opinion. infliction of emotional distress and negligent interference with familial relationships. After Verburgt nonsuited OPINION BY: ROSE SPECTOR Clear, the trial court granted summary judgment for the remaining defendants. The judgment was signed on Oc- OPINION tober 10, 1995. Because no motion for new trial was [*615] In this case, we decide whether the court of filed, Verburgt's cost bond was due within thirty days, by appeals erred in dismissing an appeal for want of juris- November 9th. See TEX. R. APP. P. 41(a)(1). 2 Verburgt diction. The appellant, John Verburgt, filed a cost bond did not file the [*616] bond until November 13th, nor on the thirty-fourth day after the trial court rendered did he file a motion to extend the time to file the bond judgment against him. Verburgt mistakenly believed that within fifteen days of the bond's due date. See TEX. R. he had timely complied with Rule 41(a)(1) of the Rules APP. P. 41(a)(2). 3 of Appellate Procedure in filing the bond and did not concurrently move to extend the time to file under Rule 2 Rule 41(a)(1) provides: 41(a)(2). 1 We hold that a motion for extension of time is implied when a party, acting good faith, files a cost bond When security for costs on ap- within the fifteen-day period in which Rule 41(a)(2) peal is required, the bond or affi- Page 2 959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 41 Tex. Sup. J. 138

davit in lieu thereof shall be filed condone a result that allows a litigant who with the clerk within thirty days knows he is late with his bond to save his after the judgment is signed, or, appeal, but rejects the appeal of the liti- within ninety days after the judg- gant who erroneously, but in good faith, ment is signed if a timely motion believes he has timely filed his bond and, for new trial has been filed by any thus satisfied, also believes he has no party or if any party has timely need to file for an extension of time. filed a request for findings of fact and conclusions of law in a case tried without a jury. If a deposit of Id. Although it acknowledged the arbitrariness of dis- cash is made in lieu of bond, the missal under these circumstances, the court of appeals same shall be made within the nevertheless believed that the interest in finality of same period. judgments outweighed the policy of disposing of appeals on their merits. Id. at 656. In dismissing Verburgt's appeal, the appellate court [**3] also relied largely upon a decision by the Court of Crim- 3 Rule 41(a)(2) provides: inal Appeals, Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996). But the Court of Criminal Appeals itself An extension of time may be recognized in Olivo that its approach to the perfection of granted by the appellate court for appeals in criminal cases has differed significantly from late filing of a cost bond or notice our more liberal approach. See Olivo, 918 S.W.2d at of appeal or making the deposit 524-525; [**5] compare Jones v. State, 796 S.W.2d required by paragraph (a)(1) or for 183, 186-87 (Tex. Crim. App. 1990) (holding that Rule filing the affidavit, if such bond or 83 of the Texas Rules of Appellate Procedure did not notice of appeal is filed, deposit is entitle appellant who filed defective notice of appeal to made, or affidavit is filed not later amend notice beyond the time allowed by Rule 41(a)(2) than fifteen days after the last day when the appellant had not requested an extension of allowed and, within the same pe- time under Rule 41(b)(2)) with Grand Prairie Indep. Sch. riod, a motion is filed in the ap- Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, pellate court reasonably explaining 500 (Tex. 1991) (holding that an appellate court may not the need for such extension. If a dismiss an appeal when the appellant filed the wrong contest to an affidavit in lieu of instrument required to perfect the appeal without giving bond is sustained, the time for fil- the appellant an opportunity to correct the error). ing the bond is extended until ten days after the contest is sustained This Court has never wavered from the principle that unless the trial court finds and re- appellate courts should not dismiss an appeal for a pro- cites that the affidavit is not filed cedural defect whenever any arguable interpretation of in good faith. the Rules of Appellate Procedure would preserve the appeal. We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the Several weeks later, the court of appeals ordered appellate court's jurisdiction. Linwood v. NCNB Texas, Verburgt to show cause why it should not dismiss his 885 S.W.2d 102, 103 (Tex. 1994); Grand Prairie Indep. appeal for lack of jurisdiction. Verburgt's response Sch. Dist., 813 S.W.2d at 500. Our decisions reflect [**6] demonstrated that his counsel had simply miscalculated the policy embodied in our appellate rules that disfavors the date the bond was due. See Verburgt v. Dorner, 928 disposing of appeals based upon harmless procedural S.W.2d 654, 655 (Tex. 1996). Initially, the court of ap- defects. 4 See Grand Prairie Indep. Sch. Dist., 813 peals decided to retain jurisdiction of Verburgt's appeal. S.W.2d at 500. Thus, we have instructed the courts of But [**4] on rehearing en banc, the court reversed it- appeals to construe the Rules of Appellate Procedure self. reasonably, yet liberally, so that the [*617] right to The court of appeals in this case recognized the "pa- appeal is not lost by imposing requirements not abso- tent unfairness" of the result it reached: lutely necessary to effect the purpose of a rule. See Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); We are, therefore, confronted with the see also Crown Life Ins. Co. v. Estate of Gonzalez, 820 question of whether the appellate rules S.W.2d 121, 121-22 (Tex. 1991); Gay v. City of Hillsbo- Page 3 959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 41 Tex. Sup. J. 138

ro, 545 S.W.2d 765, 766 (Tex. 1977). As the dissenting Rules of Civil Procedure. Id. at 801. It presents justice in the court of appeals pointed out, the result the no inconsistency with this case. Glidden Com- court of appeals reached was not "absolutely necessary" pany v. Aetna Casualty & Surety Company, 155 under these facts. Verburgt, 928 S.W.2d at 657 (Dun- Tex. 591, 291 S.W.2d 315, 317 (Tex. 1956), was a can, J., dissenting) ("The issue is not whether the rules 1956 case in which the Court held that the court condone a patently unfair result but whether they require of appeals should have dismissed an appeal in it.") (emphasis in original). Here, the court of appeals which the appellant filed its bond one day late. At acknowledged that Verburgt demonstrated that he had the time we decided Glidden, the rules allowed made a bona fide attempt to timely perfect an appeal. See for no extension of time to file a cost bond, re- Verburgt, 928 S.W.2d at 655. gardless of good cause. See Glidden, 291 S.W.2d at 318 ("It is well settled, that the requirement 4 Under Rule 46(f), on motion to dismiss an that the bond be filed within thirty days is man- appeal for a defect in form or substance in any datory and jurisdictional, and that the time pre- bond, "the appellate court may allow the filing of scribed cannot be dispensed with or enlarged by a new bond or the making of a new deposit in the the court for any reason."). We disapprove of trial court on such terms as the appellate court Miller v. Miller, 848 S.W.2d 344 (Tex. may prescribe." Rule 83 provides that "[a] judg- App.--Texarkana 1993, no writ), El Paso ment shall not be affirmed or reversed or an ap- Sharky's Billiard Parlor, Inc. v. Amparan, 831 peal dismissed for defects or irregularities, in ap- S.W.2d 3 (Tex. App.--El Paso 1992, writ denied), pellate procedure, either of form or substance, and any other authorities in which the court of without allowing a reasonable time to correct or appeals has dismissed an appeal when the appel- amend such defects or irregularities . . . ." lant has made a bona fide attempt to invoke the appellate court's jurisdiction by filing a bond [**7] We hold that a motion for extension of time within the fifteen days of the date the bond was is necessarily implied when an appellant acting in good due. faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the [**9] Rose Spector appellant would be entitled to move to extend the filing Justice deadline under Rule 41(a)(2). Our holding does not in- definitely extend the time in which parties may perfect OPINION DELIVERED: December 4, 1997 an appeal, as Justice Enoch implies. Instead, once the period for granting a motion for extension of time under DISSENT BY: Craig T. Enoch James A. Baker Rule 41(a)(2) has passed, a party can no longer invoke the appellate court's jurisdiction. It also does not alter the DISSENT time for perfecting an appeal beyond the period author- JUSTICE ENOCH, joined by JUSTICE ABBOTT ized by Rule 41(a). Nor does our holding undermine fi- AND JUSTICE HANKINSON, dissenting. nality of judgments, as the court of appeals believed. See 928 S.W.2d at 656. Parties who prevail in the trial court From today forward, one need no longer timely ap- will still know within the time specified in Rule 41(a)(2) peal to invoke an appellate court's jurisdiction. But just whether their opponents will seek to perfect an appeal. two months ago, this Court retained the longstanding rule We decline to elevate form over substance, as the dis- that only a timely filed appeal invokes appellate jurisdic- senters would. tion. 1 We insisted that to perfect appeal in a civil case, the notice of appeal must be filed within the time pre- Accordingly, we reverse the judgment of the court scribed in the rules. See TEX. R. APP. P. 26.1. Further, of appeals and remand to that court to allow it to deter- mine whether Verburgt offered a reasonable explanation we insisted that to extend the time in which to file the for his failure to timely [**8] file his bond. See TEX. R. notice of appeal, one must file not only the notice of ap- peal, but in addition "a motion" that "must state: . . APP. 41(a)(2). 5 .[among other things] the facts relied on to reasonably explain the need for an extension." TEX. R. APP. P. 26.3, 5 The Texas Supreme Court cases cited by the 10.5(b)(1)(C). dissenters are distinguishable from this case. In Davies v. Massey, 561 S.W.2d 799, 800 (Tex. Like our new rules, the plain language of the rule 1978), the appellant mailed his cost bond a day that applies to this case, Rule 41(a)(2), mandates that the before it was due, but the bond was received appeal be timely; consequently, it compels the result the eight days late. We held that the appellant timely court of appeals reached in this [*618] case. Is this a perfected his appeal under Rule 5 of the Texas bad result? For the hopeful appellant, [**10] perhaps Page 4 959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 41 Tex. Sup. J. 138

(assuming that the appeal is, in fact, meritorious). But Verburgt, 928 S.W.2d at 656 (explaining two decisions denuding the Court's rules to achieve the Court's chosen on which the Court relies today: Linwood v. NCNB Tex- result is bad law. I dissent. as, 885 S.W.2d 102, 103 (Tex. 1994) and Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 1 In addition, we specifically stated that while S.W.2d 499, 500 (Tex. 1991)); see also Olivo v. State, other appellate rules may be suspended from time 918 S.W.2d 519, 524 (Tex. Crim. App. 1996) (correctly to time for good cause, "an appellate court may . . noting that the "liberal policy" espoused by this Court in . not . . . alter the time for perfecting an appeal in Linwood and Grand Prairie "concerns the substitution of a civil case." TEX. R. APP. P. 2 (emphasis add- a correct instrument for an incorrect instrument, which ed). has been timely filed"). Rule 41(a)(2) permits a party who fails to timely I agree with the majority that "appellate courts appeal to seek an extension of time. But to do so, the should not dismiss an appeal for a procedural defect party has to file, within fifteen days of the original due whenever any arguable interpretation of the Rules of date, both the cost bond and a motion for extension of Appellate Procedure would preserve the appeal ." Ver- time reasonably explaining the need for the extension. burgt v. Dorner, 959 S.W.2d 615, 616 (1997) (emphasis The majority's holding, that an "implicit motion" is filed added)(citing Linwood and Grand Prairie). 2 But surely if a would-be appellant files late and files only a cost that interpretation must be [**13] arguable. Interpret- bond, Verburgt v. Dorner, 959 S.W.2d 615 (1997), ing Rule 41(a)(2) in contradiction to its plain language is simply ignores the rule's requirement that both instru- not arguable; indeed, it is remarkably harmful to the ments must be filed. Moreover, Rule 41(a)(2) gives the concept of justice. court of appeals discretion whether to allow [**11] an extension of time, but this discretion is triggered only by 2 In fact, the thrust of our new rules is to elim- the filing of a motion reasonably explaining the need for inate the procedural traps often encountered un- the extension. In the absence of a motion, the court of der our former rules. See Nathan L. Hecht & E. appeals' discretion is never invoked and the late-filed Lee Parsley, Procedural Reform: Whence and cost bond has no effect. Here, Verburgt did not file a Whither, in MATTHEW BENDER C.L.E., motion to extend time, and he did not file the cost bond PRACTICING LAW UNDER THE NEW timely. He simply did not do what Rule 41(a)(2) clearly RULES OF TRIAL AND APPELLATE PRO- requires. CEDURE 1-12 (Nov. 1997) (explaining that the 1997 revisions to the rules of appellate procedure The Court does not cite a single case holding that the "are meant to take the traps out of TRAP"). In its untimely filing of an appeal can still be a bona fide at- understandable zeal to get rid of "traps," howev- tempt to invoke the court of appeals' jurisdiction. To the er, the majority unfortunately has lost sight of the contrary, we have consistently and routinely held that the significant concept of timeliness as a prerequisite appeal must be filed timely. See Davies v. Massey, 561 to proper invocation of the court of appeals' juris- S.W.2d 799, 801 (Tex. 1978) ("Filing a cost bond . . . is a diction. As indicated above, even the new rules of necessary and jurisdictional step in perfecting an ap- appellate procedure require, as they must, that a peal."); Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. party must be timely to invoke the court of ap- 591, 291 S.W.2d 315, 318 (Tex. 1956) ("It is well settled peals' jurisdiction. . . . that the requirement that the bond be filed within thirty days is mandatory and jurisdictional."). Indeed, the Under any number of circumstances, time plays a court of appeals' decision in this case is predicated on critical [**14] role in justice. For example, statutes of this crucial point: limitation and repose exist to ensure that claims are made in a timely fashion. See, e.g., Trinity River Auth. v. While the supreme court has liberally URS Consultants, Inc., 889 S.W.2d 259, 263 (Tex. 1994) construed the rules regarding [**12] the ("We start with the unassailable premise that statutes of instruments necessary to confer jurisdic- limitation, in general, serve a public function. They tion, we do not discern a retreat in that compel the exercise of a right of action within a reasona- court from the fundamental requirement ble time so that the opposing party has a fair opportunity that in order to invoke the jurisdiction of to defend while witnesses [*619] are available and the the court of appeals, some instrument, evidence is fresh in their minds.'") (quoting Robinson v. whether or not it is the correct instrument, Weaver, 550 S.W.2d 18, 20 (Tex. 1977)). Timely exercise must be timely filed. of one's appellate rights is no less significant to predicta- bility, and consequently, to justice. Failure to timely file an appeal has always been a jurisdictional error that pre- Page 5 959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 41 Tex. Sup. J. 138

cludes an appellate court from reaching the merits. See State Bank, 958 S.W.2d 380 (Tex. 1997); Holmes Davies, 561 S.W.2d at 801; Glidden, 291 S.W.2d at 318. v. Home State County Ins., 958 S.W.2d 381 (Tex. It rightfully should remain so. 1997); Boyd v. American Indem. Co., 958 S.W.2d 379 (Tex. 1997) (Justice Hankinson, who joins The majority's flawed reasoning is also apparent me in this dissent, is not sitting in Boyd, and from the cases it cites. In Linwood and Grand Prairie, therefore joins this footnote only as it relates to we held that a party's bona fide attempt to invoke the Harlan and Holmes). appellate court's jurisdiction will preserve its appeal. What is [**15] clearly apparent in these opinions is that Craig T. Enoch, the procedural defect, which rendered the party's effort at Justice appeal only a bona fide attempt, was correctable. Con- comitantly, the hopeful appellant had the obligation to OPINION DELIVERED: December 4, 1997 JUS- correct this defect. But how would one correct untimeli- TICE BAKER, dissenting. ness? One can't. Neither of these cases remotely signals a The court of appeals reached the decision required retreat from the principle that a party must timely appeal by applying the plain and unambiguous language of Rule to invoke the court's jurisdiction. 41(a)(2). See TEX. R. [**17] APP. P. 41(a)(1) and The majority responds to my criticism by claiming (2); Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978); that its decision "does not indefinitely extend the time in Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. 591, 291 which parties may perfect an appeal" because parties S.W.2d 315, 318 (Tex. 1956); see also Miller v. Miller, supposedly "will still know within the time specified in 848 S.W.2d 344, 345 (Tex. App.--Texarkana 1993, no Rule 41(a)(2) whether their opponents will seek to per- writ); El Paso Sharky's Billiard Parlor, Inc. v. Amparan, fect an appeal." ___ S.W.2d at ___. My colleagues 831 S.W.2d 3, 5 (Tex. App.--El Paso 1992, writ denied). demonstrate that they do not understand what they do. The "indefiniteness" has nothing to do with not knowing The Court's opinion dispenses with Rule 41(a)(2)'s requirements, and amends the rule by judicial fiat. The whether an appeal will be filed within thirty days or for- Court's opinion is contrary to its own precedent. See ty-five days. It has everything to do with not knowing State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 when the Court will simply "imply" a condition that never occurred to reach the result it prefers. When next (Tex. 1992)( "We do not revise our rules by opinion."); will the Court "imply" filings that were never made? If Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex 1992)(same). I would deny the writ 1 . Because the Court the clear language of its own rules does not constrain the decides otherwise, I dissent. [**16] Court, then what will? If this is not "indefinite," then perhaps I do not understand the meaning of the 1 I also dissent to Verburgt's companion cases. word. See Boyd v. American Indem. Co., 958 S.W.2d Finally, the majority mistakenly believes that ignor- 379 (Tex. 1997); Harlan v. Howe State Bank, 958 ing its own rules somehow enhances "fairness." Playing S.W.2d 380 (Tex. 1997); Holmes v. Home State by the rules is fair. Changing the rules to produce a par- County Ins., 958 S.W.2d 381 (Tex. 1997). ticular result is not. [**18] James A. Baker, The judgment of the court of appeals should be af- Justice firmed. I dissent. 3 OPINION DELIVERED: December 4, 1997 3 Like Justice Baker, I also dissent to Ver- burgt's companion cases. See Harlan v. Howe | | Positive As of: April 7, 2015 6:05 PM EDT

Whitaker v. Rose Court of Appeals of Texas, Fourteenth District, Houston February 6, 2007, Judgment Rendered ; February 6, 2007, Opinion Filed NO. 14-04-01178-CV

Reporter 218 S.W.3d 216; 2007 Tex. App. LEXIS 842

MARCUS DUNTE WHITAKER, Appellant v. LOIS distinguish between reversible and non-reversible ROSE, JOHN ROSE, JR., and JOHN ROSE, III, damages. The appellate court found that because the Appellees family members provided the trial court with affidavits in support of their damages, the lack of a reporter's record Prior History: [**1] On Appeal from the County Court did not constitute error. However, because the doctors' at Law No. 1. Harris County, Texas. Trial Court Cause reports submitted by the family members were No. 805,739. statements of facts about the medical care they received, but were not under oath, they did not satisfy Disposition: Affirmed in Part and Reversed and the affidavit requirement of Tex. Civ. Prac. & Rem. Code Remanded in Part. Ann. § 18.001 (1997). And because the trial court did not specify the damage elements it was awarding in its Core Terms judgment, and the record did not provide any means for distinguishing the amounts awarded for each element of damage, the appellate court could not determine damages, default judgment, trial court, elements of whether the trial court awarded damages based on the damages, mental anguish, unliquidated damages, elements as to which there was no evidence. Thus, all medical care, no evidence, no-answer, amounts, of the damage awards had to be reversed. awarding damages, pet, pain and suffering, medical expenses, new trial, causal nexus, total damage, lost Outcome wages, default, pain The trial court's judgment as to liability was affirmed. All of the damage awards were reversed and remanded for Case Summary a new trial on the issue of damages.

Procedural Posture LexisNexis® Headnotes Appellant family members sued appellee driver for injuries sustained in an automobile accident. The driver Civil Procedure > ... > Pretrial Judgments > Default & was properly served but failed to answer. The County Default Judgments > Relief From Default Court at Law No. 1 of Harris County, Texas, granted the HN1 A restricted appeal constitutes a direct attack on a family's motion for default judgment, and entered the default judgment. Tex. R. App. P. 30. A restricted appeal default judgment based upon documentary evidence must: (1) be brought within six months after the trial supplied by the family regarding their damages. The court signs the judgment; (2) by a party to the suit; (3) driver filed a restricted appeal. who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of Overview the record. In his restricted appeal, the driver alleged three grounds for setting aside the default judgment and granting a Civil Procedure > ... > Pretrial Judgments > Default & new trial: (1) no reporter's record was made at the Default Judgments > Relief From Default default judgment hearing; (2) the family members failed Civil Procedure > Appeals > Standards of Review > General to prove their damages; and (3) the judgment failed to Overview 218 S.W.3d 216, *216; 2007 Tex. App. LEXIS 842, **1

HN2 Because a restricted appeal affords an appellant damages, however, the trial court must hear evidence the same scope of review as an ordinary appeal, the as to damages, but affidavits will satisfy the evidence legal and factual sufficiency of the evidence to support requirement of Tex. R. Civ. P. 243. the judgment may be challenged. Civil Procedure > ... > Pretrial Judgments > Default & Civil Procedure > ... > Default & Default Judgments > Default Judgments > Relief From Default Default Judgments > Entry of Default Judgments Civil Procedure > Remedies > Damages > General Civil Procedure > Remedies > Damages > General Overview Overview Civil Procedure > Appeals > Standards of Review > General Overview HN3 When a no-answer default judgment is entered, the non-answering party is deemed to have admitted all HN6 The legal and factual sufficiency of the evidence to facts properly pleaded. However, this presumption does support an award of unliquidated damages may be not apply to unliquidated damages. A plaintiff alleging challenged on appeal from a no-answer default unliquidated damages must present competent judgment. Where a specific attack is made upon the evidence that is consistent with the cause of action sufficiency of the evidence to support the trial court's pled. Tex. R. Civ. P. 243. determination of damages in a default judgment, the appellate court must review the evidence produced. Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Relief From Default Civil Procedure > Appeals > Standards of Review > General Civil Procedure > Remedies > Damages > General Overview Overview HN7 The appellate court will sustain a legal sufficiency HN4 One area where no-answer and post-answer or "no evidence" challenge if the record shows one of default judgments differ greatly is what is considered the following: (1) a complete absence of a vital fact; (2) admitted because of the default. In a post-answer rules of law or evidence bar the court from giving weight default judgment, the defendant has filed an answer to the only evidence offered to prove a vital fact; (3) the with the trial court, and the defendant does not abandon evidence offered to prove a vital fact is no more than a that answer or confess any issues because the scintilla; or (4) the evidence establishes conclusively defendant fails to pursue the remainder of the trial. The the opposite of the vital fact. The appellate court plaintiff must offer evidence and prove the entire case, considers the evidence in the light most favorable to the including liability and damages. Thus, the lack of a verdict and indulges every reasonable inference that reporter's record in a post-answer default judgment supports it. The evidence is legally sufficient if it would requires reversal. Such is not the case in a no-answer enable reasonable and fair-minded people to reach the default judgment. verdict under review. The appellate court credits favorable evidence if reasonable jurors could, and Civil Procedure > ... > Default & Default Judgments > disregards contrary evidence unless reasonable jurors Default Judgments > Entry of Default Judgments could not. In reviewing a factual sufficiency challenge, the appellate court examines all the evidence. The Civil Procedure > Remedies > Damages > General appellate court will reverse only if the finding is against Overview the great weight and preponderance of the evidence. HN5 In a no-answer default context, judgment can be Civil Procedure > ... > Pretrial Judgments > Default & entered on the pleadings alone, and all facts properly Default Judgments > Default Judgments pled are deemed admitted. While the plaintiffs must produce evidence of damages before a trial court may Torts > ... > Compensatory Damages > Types of Losses > order a default judgment, those damages need not be Medical Expenses presented with testimony. A trial court may award Torts > Remedies > Damages > Proof damages in a no-answer default judgment case based on affidavits. For liquidated damages, a trial court can HN8 A claim for past medical expenses must be render a default judgment if it can verify the damages by supported by evidence that such expenses were referring to the allegations in the petition and the written reasonable and necessary as a result of the injury. A instruments. Tex. R. Civ. P. 241. For unliquidated default judgment does not relieve a plaintiff of this Page 2 of 7 218 S.W.3d 216, *216; 2007 Tex. App. LEXIS 842, **1

burden. A plaintiff can prove reasonableness and remand in part. necessity of past medical expenses through: (1) expert testimony on the issues of reasonableness and FACTUAL AND PROCEDURAL BACKGROUND necessity; or (2) an affidavit prepared and filed in compliance with Tex. Civ. Prac. & Rem. Code Ann. § On February 20, 2003, Lois Rose ("Lois") drove her car 18.001 (1997). with her son, John Rose, III ("John, III"), as a passenger. As she entered an intersection, her car was struck by Torts > Remedies > Damages > Proof Marcus Dunte Whitaker's vehicle. Whitaker's vehicle hit the Roses' vehicle on the driver's side after running a HN9 See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 stop sign. Later that evening, Lois and John, III (1997). experienced pain and needed medical attention. The next day, Lois's husband, John Rose, Jr. ("John, Jr.") Civil Procedure > Trials > Evidence & Testimony > Depositions took his wife and son to a family clinic where they were examined. The doctor prescribed physical therapy and Evidence > Types of Evidence > Documentary Evidence > pain medication for both Lois and John, III. Lois [**2] General Overview was unable to drive and did not return to work for 30 HN10 An affidavit is a statement of facts sworn to as the days. John, Jr. sought and received time off from work truth before an officer authorized to administer oaths. for approximately two and a half weeks in order to take Tex. Gov't Code Ann. § 312.011(1) (2005). care of his wife and son at home.

Civil Procedure > ... > Pretrial Judgments > Default & The Roses filed their original petition against Whitaker Default Judgments > Relief From Default on November 20, 2003. Whitaker was properly served but failed to answer. The Roses moved for default Civil Procedure > Remedies > Damages > General Overview judgment, and the trial court granted their motion. The trial court set a date to hear evidence of damages, but HN11 If a default judgment makes a single damage instead, it entered the default judgment based upon award based on more than one damage element, and if documentary evidence supplied by the Roses: Lois's there is no evidence to support the award as to one of affidavit and supporting documents, including her lost the elements upon which the award is based, then the wages report and medical records for herself and John, appellate court must reverse and remand as to the III; and John, Jr.'s affidavit and supporting documents, entire award, even though one of the other elements including his lost wages report. The trial court entered might be sufficient to support the award. the default judgment in the precise amounts requested by the Roses in their affidavits. Whitaker did not file any Counsel: For APPELLANTS: Jason Andrew Powers, post-judgment motions, but he did file a restricted appeal Houston, TX. one day prior to the six-month filing deadline.

For APPELLEES: Melvin L. Lampley, Houston, TX. DISCUSSION

Judges: Panel consists of Justices Anderson, Edelman, In his restricted appeal, Whitaker alleges three grounds and Frost. for setting aside the default judgment and granting a new trial: (1) no reporter's record was made at the [**3] Opinion by: John S. Anderson default judgment hearing; (2) appellees failed to prove their damages; and (3) the judgment fails to distinguish between reversible and non-reversible damages. Opinion I. Standard of Review [*219] This is a restricted appeal from a no-answer default judgment. Appellees, Lois Rose, John Rose, Jr., HN1 A restricted appeal constitutes a direct attack on a and John Rose, III ("the Roses"), sued appellant, default judgment. TEX. R. APP. P. 30; Gen. Elec. Co. v. Marcus Dunte Whitaker ("Whitaker"), for damages Falcon Ridge Apartments Joint Venture, 811 S.W.2d resulting from a car accident. Whitaker raises three 942, 943 (Tex. 1991). A restricted appeal must (1) be issues on appeal. We affirm in part and reverse and brought within six months after the trial court signs the Page 3 of 7 218 S.W.3d 216, *219; 2007 Tex. App. LEXIS 842, **3

judgment, (2) by a party to the suit, (3) who did not In re K.B.A., 145 S.W.3d 685, 690 (Tex. App.--Fort participate in the actual trial, and (4) the error Worth 2004, no pet.). The plaintiff must offer evidence complained of must be apparent from the face of the and prove the entire case, including liability and record. See TEX. R. APP. P. 30; Norman Commc'ns v. damages. See Stoner, 578 S.W.2d at 682; Armstrong v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). Benavides, 180 S.W.3d 359, 362 (Tex. App.--Dallas Both parties agree Whitaker has met the first three 2005, no pet.). Thus, the lack of a reporter's record in a elements. Therefore, this appeal considers whether the post-answer default judgment requires reversal. Carstar issues raised by Whitaker are apparent on the face Collision, Inc. v. Mercury Finance Co., 23 S.W.3d 368, [*220] of the record. The face of the record includes all 370 (Tex. App.--Houston [1st Dist.] 1999, pet. denied). papers on file in the appeal. Norman Commc'ns, 955 Such is not the case in a no-answer default judgment. S.W.2d at 270. HN2 Because a restricted appeal affords an appellant the same scope of review as an ordinary HN5 In a no-answer default context, judgment can be appeal, [**4] the legal and factual sufficiency of the entered on the pleadings [**6] alone, and all facts evidence to support the judgment may be challenged. properly pled are deemed admitted. Morgan, 675 S.W.2d at 732. While plaintiffs must produce evidence HN3 When a no-answer default judgment is entered, of damages before a trial court may order a default the non-answering party is deemed to have admitted all judgment, those damages need not be presented with facts properly pleaded. Morgan v. Compugraphic Corp., testimony. A trial court may award damages in a 675 S.W.2d 729, 732 (Tex. 1984); Jackson v. Gutierrez, no-answer default judgment case based on affidavits. 77 S.W.3d 898, 901 (Tex. App.--Houston [14th Dist.] Tex. Commerce Bank, 3 S.W.3d at 517; Naficy v. Braker, 2002, no pet.). However, this presumption does not 642 S.W.2d 282, 285 (Tex. App.--Houston [14th Dist.] apply to unliquidated damages. Tex. Commerce Bank, 1982, writ ref'd n.r.e.). For liquidated damages, a trial N.A. v. New, 3 S.W.3d 515, 516 (Tex. 1999); Novosad v. court can render a default judgment if it can verify the Cunningham, 38 S.W.3d 767, 773 (Tex. App.--Houston damages by referring to the allegations in the petition [14th Dist.] 2001, no pet.). A plaintiff alleging unliquidated and the written instruments. TEX. R. CIV. P. 241; BLS damages must present competent evidence that is Limousine Servs, Inc. v. Buslease, Inc., 680 S.W.2d consistent with the cause of action pled. TEX. R. CIV. P. 543, 547 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). For 243; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, unliquidated damages, however, the trial court must 83 (Tex. 1992). hear evidence as to damages, but affidavits will satisfy the evidence requirement of Texas Rule of Civil II. No Reporter's Record Procedure 243. See TEX. R. CIV. P. 243; Tex. In his first issue, Whitaker contends he is entitled to a Commerce Bank, 3 S.W.3d at 516-17. Because the new trial because the Roses failed to ensure a reporter's Roses provided the [**7] trial court with affidavits in record was produced from a default judgment hearing. support of their damages, the lack of a reporter's record Whitaker argues a reporter's record is required for a in an appeal from a no-answer default judgment does no-answer default [**5] judgment, as it is required for a [*221] not constitute error on the face of the record. We post-answer default judgment. This contention is overrule Whitaker's first issue. incorrect. Damages Awards HN4 One area where no-answer and post-answer In Whitaker's second issue, he attacks several aspects default judgments differ greatly is what is considered of the Roses' damage award. He first contends the admitted because of the default. In a post-answer Roses did not prove liability 1 and causation. He next default judgment, the defendant has filed an answer contends the evidence of the Roses' damages is legally with the trial court, and the defendant does not abandon and factually insufficient. In his third issue, Whitaker that answer or confess any issues because the asserts he is entitled to a new trial because the judgment defendant fails to pursue the remainder of the trial. See of the trial court fails to distinguish between reversible Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); and non-reversible damages.

1 Whitaker may not challenge liability here because, in a default context, the causal nexus between the conduct of the defendant and the event sued upon is admitted by default. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984). However, the causal nexus between the event sued upon and the plaintiff's alleged injuries is not admitted by default, and "proof of this causal nexus is necessary to ascertain the amount of damages to which the plaintiff is entitled." Id. Page 4 of 7 218 S.W.3d 216, *221; 2007 Tex. App. LEXIS 842, **8

[**8] A. Evidence of Damages (8) lost earnings which, in all reasonable probability, will be suffered in the future, HN6 The legal and factual sufficiency of the evidence to support an award of unliquidated damages may be (9) past loss of consortium, challenged on appeal from a no-answer default (10) [**10] past loss of household services, judgment. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.--Dallas 2005, no pet.). (11) past mental anguish, and Where a specific attack is made upon the sufficiency of [*222] (12) future mental anguish. the evidence to support the trial court's determination of damages in a default judgment, the appellate court Except for items (7) - (10) above, John, III asserted the must review the evidence produced. Dawson v. Briggs, same elements of damages as Lois. John, Jr. sought 107 S.W.3d 739, 751 (Tex. App.--Houston [1st Dist.] only to recover the following damages: 2003, no pet.). (1) past lost earnings, HN7 We will sustain a legal sufficiency or "no evidence" (2) past loss of consortium, challenge if the record shows one of the following: (1) a complete absence of a vital fact; (2) rules of law or (3) reasonable and necessary medical care in evidence bar the court from giving weight to the only the past, and evidence offered to prove a vital fact; (3) the evidence (4) reasonable and necessary medical care in offered to prove a vital fact is no more than a scintilla; or the future. (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, Though properly served with process, Whitaker did not 810 (Tex. 2005). We consider the evidence in the light answer the Roses' suit. The Roses moved for default most favorable to the verdict and indulge every judgment, and the trial court granted their motion. The reasonable inference [**9] that supports it. Id. at 821-22. trial court did not hold an evidentiary hearing regarding The evidence is legally sufficient if it would enable unliquidated damages, but instead, it rendered the reasonable and fair-minded people to reach the verdict default judgment based upon documentary evidence under review. Id. at 827. We credit favorable evidence if supplied by the Roses. In Lois's affidavit, she testified reasonable jurors could, and disregard contrary that she had suffered the following alleged damages: evidence unless reasonable jurors could not. See id. In (1) past medical expenses totaling $ 2,994.65, (2) pain reviewing a factual sufficiency challenge, we examine and suffering, mental anguish, and emotional distress all the evidence. Castanon v. Monsevais, 703 S.W.2d in the amount of $ 6,000, and (3) lost wages in the 295, 297 (Tex. App.--San Antonio 1985, no writ). We will amount of $ 2,653.84. Even though the total of these reverse only if the finding is against the great weight and amounts exceeds $ 11,000, Lois also testified in her preponderance of the evidence. Id. affidavit as follows: "My total damages when combined with inconvenience [**11] is $ 9,000." In the Roses' petition, Lois sought to recover the following damages: Lois also testified in her affidavit as to the following alleged damages for John, III: (1) past medical expenses (1) reasonable and necessary medical care in totaling $ 2,043.65 and (2) John, III's pain and suffering, the past, mental anguish, and emotional distress in the amount (2) reasonable and necessary medical care in of $ 4,000. Lois further testified that John, III "was the future, inconvenienced because he was unable to carry on the usual and normal activities of a 14 year old student." (3) past physical pain and suffering, Even though the total of the damages for John, III (4) future physical pain and suffering, mentioned by Lois is $ 6,043.65, Lois stated in her affidavit that "[John, III's] total damages when combined (5) past physical impairment, with inconvenience is $ 6,500." (6) physical impairment which, in all reasonable In his affidavit, John, Jr. stated that he suffered lost probability, will be suffered in the future, wages of $ 1,429.60 and that his "total damages when (7) past lost earnings, combined with inconvenience is $ 4,500." Page 5 of 7 218 S.W.3d 216, *222; 2007 Tex. App. LEXIS 842, **11

The trial court rendered the default judgment in the necessary is sufficient evidence to support a precise amounts of "total damages" requested by Lois finding of fact by judge or jury that the amount and John, Jr. in their affidavits--$ 9,000 for Lois, $ 6,500 charged was reasonable or that the service for John, III, and $ 4,500 for John, Jr. The trial court did was necessary. not specify the elements of damages upon which it based these awards, and the record does not provide (c) The affidavit must: (1) be taken before an any means for determining the elements of damages officer with authority to administer oaths; (2) be upon which the trial court relied. The affidavits provide made by: (A) the person who provided the no basis for [**12] distinguishing the elements of service; or (B) the person in charge of records damages awarded by the trial court because, as noted showing the service provided and charge made; above, the "total damages" requested by each of the and (3) include an itemized statement of the Roses does not equal the sum of the amounts requested service and the charge. for specific elements of damages in the affidavits. 2 TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b)-(c) Therefore, neither the trial court's judgment, nor the [**14] (Vernon 1997). affidavits of Lois and John, Jr. provide any means of distinguishing the amounts awarded by the trial court The documentary evidence accompanying Lois's for specific elements of damages. Whitaker also affidavit includes medical records, doctors' reports, pain contends the Roses' evidence of medical expenses assessment reports, and an itemized statement of does [*223] not comply with the affidavit requirement of services rendered and charges incurred. The doctors' section 18.001 of the Texas Civil Practices and reports consist of one report from an osteopathic Remedies Code, and in the absence of comporting physician and a second report [**15] from a radiologist. affidavits, they are required to use expert testimony to prove their medical expenses were reasonable and This evidence does not satisfy the requirements set necessary. Whitaker is correct. HN8 A claim for past forth by section 18.001 because neither of these reports medical expenses must be supported by evidence that are affidavits. HN10 An affidavit is a statement of facts such expenses were reasonable and necessary as a sworn to as the truth before an officer authorized to result of the injury. See Texarkana Mem'l Hosp., Inc. v. administer oaths. See TEX. GOV'T CODE ANN. § Murdock, 946 S.W.2d 836, 840 (Tex. 1997). A default 312.011(1) (Vernon 2005). These doctors' reports are judgment does not relieve a plaintiff of this burden. statements of facts about the medical care provided to Jackson, 77 S.W.3d at 902-03. A plaintiff can prove Lois and John III, but they were not under oath, and reasonableness [**13] and necessity of past medical therefore, they do not satisfy the affidavit requirement of expenses through (1) expert testimony on the issues of section 18.001. See, e.g., TEX. CIV. PRAC. & REM. reasonableness and necessity or (2) an affidavit CODE ANN. § 18.002(a)-(b) (Vernon 1997) (example prepared and filed in compliance with section 18.001 of forms of affidavits for doctor or custodian of records the Texas Civil Practice and Remedies Code. Texarkana evidencing the basic requirements of section 18.001). Mem'l Hosp., Inc., 946 S.W.2d at 840. Because the Accordingly, we find that there is legally insufficient Roses only offered documentary evidence, they must evidence to support an award for reasonable and meet the requirements of section 18.001. Section necessary medical care in the past as to Lois and John, 18.001 provides: III.

HN9 (b) Unless a controverting affidavit is filed Likewise, there is no evidence of the following elements as provided by this section, an affidavit that the of damage for which Lois and John, III sought recovery: amount a person charged for a service was reasonable at the time and place that the (1) reasonable and necessary medical care in service was provided and that the service was the future,

2 For example, Lois's affidavit alleges she suffered damages in the following amounts: $ 2,994.65 in medical expenses; $ 2,653.84 in lost wages; and $ 6,000.00 in pain and suffering, mental anguish, and emotional distress. Therefore, the sum of the amounts requested by Lois for specific elements of damages is $ 11,648.49. However, in her affidavit, Lois also alleges that her "total damages when combined with inconvenience is $ 9,000.00." The discrepancy between these amounts, coupled with the fact that the trial court awarded a lump sum of $ 9,000.00 to Lois, makes it impossible for us to determine, based upon evidence in the affidavits, the amount awarded by the trial court for any single element of damages. Page 6 of 7 218 S.W.3d 216, *223; 2007 Tex. App. LEXIS 842, **15

(2) past physical impairment, the evidence of mental anguish was held legally insufficient, and the record did not provide "any means" (3) physical impairment which, in all reasonable of distinguishing the amount awarded for mental anguish [**16] probability, will be suffered in the from that awarded for pain and suffering. Id. Therefore, future, the Jackson court concluded that "even if an award for (4) past mental anguish, and pain and suffering was supported by the evidence, the precise amount of damages could not be determined. (5) future mental anguish. We therefore must also reverse the pain and suffering Furthermore, there is no evidence as to the following award." Id. elements of damage for which Lois sought recovery: [**18] In the instant case, as in Jackson, there is no [*224] (1) lost earnings which, in all reasonable evidence of at least one possible damage element as to probability, will be suffered in the future, each of the three lump-sum awards. Further, because the trial court did not specify the damage elements it (2) past loss of consortium, and was awarding in its judgment, and the record does not (3) past loss of household services. provide any means for distinguishing the amounts awarded for each element of damage, we cannot In addition, there is no evidence as to the following determine whether the trial court awarded damages elements of damage for which John, Jr. sought recovery: based on the elements as to which there is no evidence. Therefore, this court must reverse all of the damage (1) past loss of consortium, awards and remand the claims for a new trial on unliquidated damages. See id.; see also Holt Atherton, (2) reasonable and necessary medical care in 835 S.W.2d at 86 (holding that when appellate court the past, and sustains no evidence point after an uncontested hearing (3) reasonable and necessary medical care in on unliquidated damages following no answer default the future. judgment, appropriate disposition is to remand for trial on issue of unliquidated damages). Because there is no B. Separability of Damages evidence of the Roses' damages, we do not reach the issue of causal nexus. See Morgan, 675 S.W.2d at 732 In his third issue, Whitaker asserts he is entitled to a ("The causal nexus between the event sued upon and new trial because the judgment fails to distinguish the plaintiff's injuries must be shown by competent between reversible and non-reversible damages. In evidence."). Accordingly, we sustain appellant's third support of his argument, Whitaker cites Rule 44.1(b) of issue [**19] and reverse all of the damage awards and the Texas Rules of Appellate Procedure and this court's remand the [*225] claims for a new trial on unliquidated decision in Jackson v. Gutierrez, 77 S.W.3d 898, 903-04 damages and causal nexus. (Tex. App.--Houston [14th Dist.] 2002, no pet.). CONCLUSION In Jackson, this court held that HN11 if a default judgment makes a single damage [**17] award based We affirm the trial court's judgment as to liability. We on more than one damage element and if there is no reverse all of the damage awards and remand for a new evidence to support the award as to one of the elements trial on the issue of damages. upon which the award is based, then this court must reverse and remand as to the entire award, even though /s/ John S. Anderson one of the other elements might be sufficient to support Justice the award. 3 See id. (citing TEX. R. APP. P. 44.1(b)). In Jackson, the trial court awarded a single amount for Judgment rendered and Opinion filed February 6, 2007. mental anguish and pain and suffering. Id. On appeal,

3 Our holding in Jackson is based on the same principles applied by the Texas Supreme Court in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (holding the trial court erred in submitting a jury charge which mixed valid and invalid theories of liability in a single broad-form submission, and that such error was harmful because it prevented the appellate court from determining whether the jury based its verdict on an invalid theory of liability). Page 7 of 7 Page 1

Positive As of: Mar 30, 2015

Lydia Williams, Appellant v. Jackie Williams and K. W., Appellees

NO. 03-02-00723-CV

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

150 S.W.3d 436; 2004 Tex. App. LEXIS 89

January 8, 2004, Filed

SUBSEQUENT HISTORY: [**1] [*441] Appellee Jackie Williams 1 filed a petition Petition for review denied by Williams v. Williams, 2004 to terminate the parent-child relationship between appel- Tex. LEXIS 803 (Tex., Sept. 10, 2004) lant Lydia Williams and her daughter, K.W. When Lydia Motion for rehearing on petition for review denied by failed to answer, the trial court granted a default judg- Williams v. Williams, 2004 Tex. LEXIS 1033 (Tex., Oct. ment, terminating Lydia's parental rights. Lydia timely 29, 2004) filed a motion for new trial, which the trial court over- ruled. She now appeals. We hold that although the cita- PRIOR HISTORY: FROM THE COUNTY tion with which Lydia was served failed to include the COURT AT LAW OF BASTROP COUNTY. NO. name of the petitioner, Jackie Williams, the record re- 02-7380, HONORABLE BENTON ESKEW, JUDGE flects that Lydia was properly served. We further hold PRESIDING. that the evidence is legally insufficient to support the trial court's judgment terminating Lydia's parental rights. DISPOSITION: Reversed and remanded. We therefore reverse the trial court's judgment. In the interest of justice, however, we remand the cause to the trial court for further proceedings. COUNSEL: Ms. Pamela E. George-[appellant], Hou- ston, TX. 1 Jackie Williams, maternal grandmother of K.W., is the only appellee who filed a brief with Mr. J. Paul Standefer-[ad litem-K.W.], Bastrop, TX. this Court. Mr. Chris D. Cillon-[Jackie Williams], Bastrop, TX. [**2] BACKGROUND These facts are compiled from the parties' briefs, Mr. William H. Jenkins-[Jackie Williams], Bastrop, TX. their trial court pleadings, and the evidence from the mo- JUDGES: Before Chief Justice Law, Justices B. A. tion for new trial hearing. This factual summary is in- Smith and Puryear. cluded [*442] to provide a background for the discus- sion in this opinion but should not be construed as a con- clusive finding of any fact for subsequent proceedings. OPINION BY: David Puryear Lydia Williams is the natural mother of K.W., the OPINION child who is the subject of this appeal. Jackie is Lydia's mother and the child's grandmother. By an agreed order dated March 23, 2001, Jackie Williams was appointed Page 2 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

sole managing conservator of K.W., and Lydia was ap- peals the trial court's judgment, challenging the suffi- pointed possessory conservator. 2 ciency of the evidence, contending the trial court erred in overruling her motion for new trial, and claiming [**5] 2 The record does not reveal what circum- the citation with which she was served was defective. stances precipitated the rendition of the agreed order. It appears, however, that Child Protective DISCUSSION Services (CPS) was involved, as the order dis- misses CPS from the suit. Introduction On June 6, 2002, Jackie filed a petition to terminate The natural right that exists between parents and Lydia's parental rights to K.W., alleging (1) that Lydia their children is of constitutional [*443] dimensions. engaged in conduct or knowingly placed her [**3] child Stanley v. Illinois, 405 U.S. 645, 652, 31 L. Ed. 2d 551, with persons who engaged in conduct that endangers the 92 S. Ct. 1208 (1972); Holick v. Smith, 685 S.W.2d 18, physical or emotional well being of the child, (2) that she 20, 28 Tex. Sup. Ct. J. 230 (Tex. 1985). The United failed to support the child in accordance with her ability States Supreme Court has characterized the right to raise during the period of one year ending within six months one's child as fundamental--a basic civil right far more of the date of the filing of the petition, and (3) that ter- precious than property rights. Stanley v. Illinois, 405 U.S. mination was in K.W.'s best interest. The petition also at 651. Because the involuntary termination of parental sought the termination of K.W.'s father's parental rights. rights is complete, final, and irrevocable, termination Jackie requested in her petition that Thomas and Iris proceedings must be strictly scrutinized. Holick, 685 Cummins, prospective adoptive parents, be named S.W.2d at 20. K.W.'s managing conservators. Service of Citation Lydia failed to file an answer in response to the peti- By her first issue, Lydia claims that the citation tion. Consequently, the trial court held a default judg- upon which the default judgment was based is defective, ment hearing on August 2, 2002 and signed an order and thus, the judgment is void. She argues that (1) the terminating Lydia's parental rights on August 13. On citation failed to include the name of the petitioner, August 23, Lydia filed a pro se answer, and on Septem- Jackie, and (2) it was not directed to a sheriff or consta- ber 12, she filed a motion for new trial. The trial court ble. held a hearing on the motion for new trial, during which both Lydia and Jackie testified. Service of citation must be in strict compliance with the rules of civil procedure to establish jurisdiction over According to Lydia's testimony, she and Jackie a defendant and support [**6] a default judgment. Wil- maintained a strained relationship, although they saw son v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60 each other regularly when Lydia visited her daughter, (Tex. 1990); Uvalde Country Club v. Martin Linen Sup- K.W., and they spoke frequently. When Lydia was ply Co., 690 S.W.2d 884, 885, 28 Tex. Sup. Ct. J. 423 served with the petition to terminate her [**4] parental (Tex. 1985); Barker CATV Constr., Inc. v. Ampro, Inc., rights, she spoke to her mother, and based on their con- 989 S.W.2d 789, 792 (Tex. App.--Houston [1st Dist.] versation, assumed that her mother was not pursuing the 1999, no pet.). If strict compliance is not shown, the ser- petition. Later, Lydia learned from her brother that her vice of process is invalid and of no effect. Uvalde Coun- mother hired a new attorney and was indeed pressing try Club, 690 S.W.2d at 885. We make no presumptions forward with the termination. Lydia claims that she sub- of valid issuance, service, or return of citation when ex- sequently contacted a legal hotline and was told that she amining a default judgment. Id. would be served anew because her mother had hired a different attorney. Based on this advice, Lydia failed to To be valid, a citation must comply with twelve re- file an answer to the petition. Although Lydia spoke to quirements. The citation must her mother before the August 2 termination hearing, Jackie never informed Lydia of the hearing date. Thus, (1) be styled "The State of Texas," Lydia did not learn of the termination of her parental (2) be signed by the clerk under seal of court, rights until after the trial court rendered its judgment. She then hired a lawyer and filed her motion for new (3) contain name and location of the court, trial. As for her meritorious defense, Lydia alleged that (4) show date of filing of the petition, the allegations in Jackie's petition were untrue and insuf- ficient evidence exists to support them. (5) show date of issuance of citation,

Following the presentation of evidence, the trial (6) show file number, court overruled the motion for new trial. Lydia now ap- (7) show names of parties, Page 3 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

(8) be directed to the defendant, of defendant's name in citation did not invalidate ser- vice); Payne & Keller Co., 732 S.W.2d at 41 (judgment (9) show the name and address of attorney for plain- upheld where petition and citation reflected registered tiff, agent as "Philippe Petitfrere," and return reflected (10) contain the time within which these rules re- "Philipee Petitfreere"). On the other hand, there was no quire the defendant to file a written answer with the clerk confusion about whether the correct party was actually who issued citation, served. Compare Higginbotham v. General Life & Acci- dent Ins. Co., 796 S.W.2d 695, 696-97, 34 Tex. Sup. Ct. (11) contain address [**7] of the clerk, and J. 16 (Tex. 1990) (although return did not recite method (12) notify the defendant that in case of failure of of service as required, record demonstrated strict com- defendant to file an answer, judgment by default may be pliance with valid method of service), Dezso v. Har- rendered for the relief demanded in the petition. wood, 926 S.W.2d 371, 374 (Tex. App.--Austin 1996, writ denied) (upholding default judgment even though wrong Tex. R. Civ. P. 99(b). person was sued because record clearly showed proper In this case, the citation fails to include Jackie's defendant received service and knew she was intended name but complies with rule 99 in all other respects. defendant), and Cockrell, 737 S.W.2d at 140 (although Instead of naming the parties, the citation includes the defendant's name was misspelled in citation and return, style of the case, which is "In the Interest of: [K.W.]." default judgment not void where defendant did not claim See Tex. Fam. Code Ann. § 102.008(a) (West 2002) lack of service and was clearly not [**10] misled by (suit affecting parent child relationship must be styled, spelling error), with Uvalde Country Club, 690 S.W.2d at "In the interest of ________, a child"). It also correctly 885 (holding that where return showed Henry Bunting identifies Lydia and includes the name and address of was served and petition alleged Henry Bunting, Jr. was Jackie's attorney. Jackie is named as the petitioner in the proper registered agent of defendant, record did not show original petition to terminate the parent-child relation- that correct person was served), Hercules Concrete ship, which was attached to the citation. Lydia does not Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contract- claim on appeal that she was not properly identified on ing Corp., 62 S.W.3d 308, 311 (Tex. App.--Houston [1st the citation. Nor does she claim that she was not served. Dist.] 2001, pet. denied) (where return reflected service Indeed, she filed an answer with the trial court, albeit on "Hercules Concrete Pumping" instead of "Hercules after the court rendered judgment. Her complaint is that Concrete Pumping Service, Inc.," court held return failed the citation did not include the name of Jackie, who was to show service on proper defendant), P&H Transp., Inc. a party to the dispute, and therefore did not strictly [**8] v. Robinson, 930 S.W.2d 857, 859-60 (Tex. comply with the rules of civil procedure. App.--Houston [1st Dist.] 1996, writ denied) (reversing default judgment where evidence did not affirmatively We note that strict compliance with the rules does show that person named in citation was person actually not require "obeisance [*444] to the minutest detail." served), and Avila v. Avila, 843 S.W.2d 280, 282 (Tex. Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d App.--El Paso 1992, no writ) (reversing default judgment 608, 613 (Tex. App.--Corpus Christi 1996, writ denied); where record failed to show that person served was per- Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d son named in citation). Nor does Lydia claim confusion 866, 871 (Tex. App.--Houston [1st Dist.] 1995, no writ). regarding who filed the suit. As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on Ultimately, although our jurisprudence requires the defendant in the suit, service of process will not be strict adherence [**11] to the rules regarding service of invalidated. Regalado v. State, 934 S.W.2d 852, 854 citation, it does so to ensure that there is no question (Tex. App.--Corpus Christi 1996, no writ); Ortiz, 926 about whether the proper party has been served before a S.W.2d at 613; Payne & Keller Co. v. Word, 732 S.W.2d default judgment is rendered. Here, however, not only 38, 41 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd does the return reflect that Lydia was properly served, n.r.e.). but Lydia admitted that she was properly served throughout her testimony during the motion for new trial This case presents a unique issue. On one hand, the fail- hearing. She testified that she was served while she was ure to include the name of a party, even if it is the name in jail, that she carefully read all of "the papers" that of the plaintiff and not the defendant, is not a minute were served on her in jail, and that she immediately con- detail. Cf. Ortiz, 926 S.W.2d at 613 (omission of accent tacted [*445] her father after she was served. Fur- mark and of corporate designation and substitution of thermore, when asked how she discovered the names of symbol " at " for word "at" are defects [**9] that do not the prospective adoptive parents, she answered that their invalidate service); Cockrell v. Estevez, 737 S.W.2d 138, names were in "the papers I was served." Finally, in her 140 (Tex. App.--San Antonio 1987, no writ) (misspelling affidavit supporting her motion for new trial, Lydia Page 4 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

averred that she was served while in jail, that her mother expressly directed to the defendant under rule 99 and was the petitioner in the petition to terminate Lydia's may also be addressed to the sheriff or constable under parental rights, and that she drafted a response to the rule 15, but failure to include the sheriff or constable on petition two weeks after she was served, but did not mail the form of the citation will not render it void. Because it until after the default judgment was rendered. Not only the citation in this case was directed to Lydia, the de- did her testimony make clear that she was properly fendant, we hold that the citation was not void and over- served, but she also knew who the petitioner was in this rule Lydia's first issue. suit. In [**12] light of the fact that there is no dispute as to whether Lydia was properly served and that the record Default Judgments establishes that she was aware of who filed the suit, we hold that the trial court did not err in assuming personal Before we review the sufficiency of the evidence, we jurisdiction over Lydia. See Higginbotham, 796 S.W.2d must determine the effect of Lydia's failure to file an at 697 (evidence from motion for new trial hearing answer [*446] with the trial court and her failure to showed strict compliance with valid method of service); appear at the termination hearing. Traditionally, no evi- Cockrell, 737 S.W.2d at 140 (where defendant claimed dence is necessary to support a no-answer default judg- neither lack of service nor that he was misled by mis- ment because the defendant's failure to answer is taken as spelled name, record did not reflect invalid service). admitting the allegations of the petition. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83, 35 Tex. Sup. Ct. Lydia also relies on rule of civil procedure 15 in J. 881 (Tex. 1992). Indeed, it is well established that a support of her argument. That rule instructs that "process default judgment operates as an admission [**15] of the shall be directed to any sheriff or any constable within material facts alleged in the plaintiff's petition. Id.; Ston- the State of Texas." Tex. R. Civ. P. 15. Citing Barker er v. Thompson, 578 S.W.2d 679, 684, 22 Tex. Sup. Ct. J. CATV Construction, Inc. v. Ampro, Inc., 989 S.W.2d 789 258 (Tex. 1979). (Tex. App.--Houston [1st Dist.] 1999, no pet.), Lydia argues that rule 15, when coupled with rule 99(b), which Termination proceedings, however, are special. A addresses the issuance and form of citation, requires the court's primary consideration in cases involving parental citation be addressed to both the defendant and a consta- rights is always the best interest of the child. See Tex. ble or sheriff. We disagree. Fam. Code Ann. § 153.002 (West 2002); Wiley v. Spratlan, 529 S.W.2d 616, 617-18 (Tex. Civ. App.--Tyler Rule 15 instructs that all writs and process shall be 1975), rev'd on other grounds, 543 S.W.2d 349, 19 Tex. directed to any sheriff [**13] or constable. Tex. R. Civ. Sup. Ct. J. 385 (Tex. 1976). Before determining the best P. 15. It does not address the form of the citation, how- interest of a child, the court should ensure that it is as ever. Rule 99, on the other hand, specifies what the form well-informed as the circumstances allow. Such a deter- of the citation shall include. It requires the citation be mination is rarely well-informed without consideration directed to the defendant, but says nothing about ex- of the evidence and the perspective of the parents. In re pressly addressing the citation to any sheriff or constable. P.M.B., 2 S.W.3d 618, 624-25 (Tex. App.--Houston [14th Tex. R. Civ. P. 99. Dist.] 1999, no pet.). Accordingly, the best interest of the In Ampro, the citation was addressed to both the de- child requires that issues be as fully developed as possi- fendant and "to any sheriff or constable or authorized ble, and technical rules of pleading and practice are not person." Ampro, 989 S.W.2d at 791. The court recited of controlling importance. Lohmann v. Lohmann, 62 that "failure to direct citation to the defendant as required S.W.3d 875, 879 (Tex. App.--El Paso 2001, no pet.); by the rules results in a void citation, ineffective service, Sexton v. Sexton, 737 S.W.2d 131, 133 [**16] (Tex. and a void default judgment." Id. at 792. In previous App.--San Antonio 1987, no writ); Little v. Little, 705 opinions, the court had held that citations that were di- S.W.2d 153, 154 (Tex. App.--Dallas 1985, writ dism'd rected to both the defendant and addressed to the sheriff w.o.j.); Barrow v. Durham, 574 S.W.2d 857, 861 (Tex. or constable are confusing and do not strictly comply Civ. App.--Corpus Christi 1978), aff'd, 600 S.W.2d 756, with the rules. Id. (citing Medeles v. Nunez, 923 S.W.2d 23 Tex. Sup. Ct. J. 361 (Tex. 1980). Pertinent facts that 659 (Tex. App.--Houston [1st Dist.] 1996, writ denied); may affect the best interest of the child should be heard Faggett v. Hargrove, 921 S.W.2d 274 (Tex. and considered by the trial court regardless of the lack of App.--Houston [1st Dist.] 1995, no writ)). The court re- diligence of the parties in their presentation of infor- considered those prior holdings and in harmonizing rules mation to the court. C. v. C., 534 S.W.2d 359, 361 (Tex. 15 and 99, determined [**14] that the rules do allow Civ. App.--Dallas 1976, writ dism'd w.o.j.). citations to be directed to both the defendant and the Moreover, because terminating the parent-child rela- sheriff or constable. Id. at 792-93. The court, however, tionship is such a drastic measure, termination proceed- did not hold that the citation must be addressed to both. ings include many procedural safeguards not found in Like the Ampro court, we too hold that citations must be Page 5 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

other civil trials. For example, termination hearings re- in the petition, and the court could then terminate the quire clear and convincing evidence, a heightened bur- parental rights based solely on the deemed admissions. den of proof. See Tex. Fam. Code Ann. § 161.001 (West Cf. id. § 161.001(1)(K); Marywood v. Vela, 17 S.W.3d 2002); In re G.M., 596 S.W.2d 846, 847, 23 Tex. Sup. Ct. 750, 758-59 (Tex. App.--Austin 2000, pet. denied) (hold- J. 262 (Tex. 1980). They receive precedence over other ing that petitioner must prove by clear and convincing civil trials and appeals. Tex. Fam. Code Ann. §§ evidence that affidavit of relinquishment was executed as 105.004, 109.002, 161.202 (West 2002). They allow for provided in section 161.103 and that termination is in the appointment [**17] of counsel for the child and child's best interest). But even voluntary relinquishments indigent parents. Id. §§ 107.011-.016 (West Supp. 2004). of parental rights are subject to strict procedural re- The trial court has only one year, plus one 180-day ex- quirements. For example, a petitioner must prove by tension, within which to render a final order or dismiss clear and convincing evidence that an affidavit of volun- the suit. Id. § 263.401 (West 2002). tary relinquishment of parental rights was executed in accordance with section 161.103 of the family code; that In summary, the termination of parental rights is un- statute requires, among other things, that the affidavit be like a traditional civil case, involving only two compet- witnessed by two credible persons and verified before a ing interests, the plaintiff's and the defendant's. The person authorized to take oaths. Tex. Fam. Code Ann. § child's interest must also be considered and indeed is of 161.103(a)(2) [**20] , (3) (West Supp. 2004). Fur- paramount importance. The traditional no-answer default thermore, unless the affidavit expressly states that it is judgment rule takes into consideration only the actions of irrevocable, a parent may revoke a relinquishment in the defaulting parent; it leaves no room for the trial court accordance with specified procedures. Id. §§ 161.103(g), to consider the child's best interest. Cf. Lowe v. Lowe, .1035 (West 2002 & Supp. 2004). And finally, it is 971 S.W.2d 720, 725-27 (Tex. App.--Houston [14th well-established that relinquishment affidavits must be Dist.] 1998, pet. denied) (criticizing the application of executed voluntarily and knowingly. Marywood, 17 Craddock to suits affecting parent-child relationship). S.W.3d at 759. Indeed, an involuntarily executed affida- Thus, in light of the special characteristics of termination vit is a complete defense to a termination suit or decree proceedings and the important interests they are designed based solely upon a finding under section 161.001(1)(K) to protect, we hold that the traditional rule--that evidence of the family code. Id. These requirements must be ad- is unnecessary to support a default judgment because the hered to before a court may terminate a parent-child rela- failure to answer is taken as an admission of the allega- tionship based solely on an affidavit of relinquishment. tions in [*447] the petition--does [**18] not apply to Yet, if a default judgment is rendered, under the tradi- involuntary termination of parental rights proceedings. tional rule, a parent has in effect relinquished her paren- As further support for our holding, we note that a tal rights, without the procedural protections provided by petition for the termination of a parent-child relationship statute and without the opportunity to revoke that relin- is "sufficient without the necessity of specifying the un- quishment. Such a rule, in the context of termination of derlying facts if the petition alleges in the statutory lan- parental rights, is too harsh given the constitutional di- guage the ground for the termination and that termination mension of the rights that are affected in these cases. is in the best interest of the child." Tex. Fam. Code Ann. Finally, the practical complications of requiring the § 161.101 (West 2002). Thus, if we were to apply the presentation of evidence before a [**21] no-answer traditional rule for no-answer default judgments, we default judgment can be rendered in termination cases would be compelled to hold that the allegations in a peti- are slight compared to the interests that must be protect- tion are legally sufficient to support a termination of pa- ed. We note that many well-established legal doctrines rental rights where the respondent has failed to answer, include exceptions based on the public policy of the State even if there were no supporting facts alleged in the peti- [*448] when a child's best interest is at issue. In re tion or developed at trial. Such a conclusion runs afoul of K.C., 88 S.W.3d 277, 280 (Tex. App.--San Antonio 2002, the oft-cited axiom that a court's primary consideration in pet. denied) (Hardberger, C. J., dissenting). In addition, these cases is always the best interest of the child, for it requiring the presentation of evidence even though the cannot be said that the best interest of the child has been opposing party has failed to respond is not a novel con- served when a court reaches its conclusion based on tra- cept. Cf. Heine, 835 S.W.2d at 83 (holding that court ditional rules of pleading and practice rather than on a rendering default judgment must hear evidence of comprehensive review of the available evidence. unliquidated damages); Tex. Fam. Code Ann. § 6.701 Moreover, under the [**19] traditional no-answer (West 2002) (if respondent fails to answer in divorce default judgment rule, a parent's failure to answer a peti- suit, petition may not be taken as confessed); Considine tion to terminate her parental rights would be tantamount v. Considine, 726 S.W.2d 253, 254 (Tex. App.--Austin to a voluntary relinquishment of parental rights, as the 1987, no writ) (holding that allegations in motion to parent would be deemed to have admitted the allegations modify conservatorship and support may not be taken as Page 6 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

confessed if respondent fails to answer); see also Klap- 4 Because we are reversing based on Lydia's prott v. United States, 335 U.S. 601, 612-13, 93 L. Ed. legal insufficiency point, we do not reach her 266, 69 S. Ct. 384 (1949) (reversing default judgment in complaint that the trial court erred in failing to denaturalization proceeding [**22] because rendered grant her motion for new trial and express no without evidentiary hearing). In Considine, this Court opinion on this issue. reasoned that the policy considerations underlying sec- tion 6.701 of the family code, which requires the peti- Legal Sufficiency Review tioner to prove the allegations in a petition for divorce even if the respondent has failed to answer, should also Because termination of parental rights is such a drastic apply in proceedings to modify provisions in prior di- remedy and is of such weight and gravity, due process vorce judgments that appoint conservators and set child requires the petitioner to justify termination [*449] by support. 726 S.W.2d at 254; see also Armstrong v. Arm- the heightened burden of proof of "clear and convincing strong, 601 S.W.2d 724, 726 (Tex. Civ. App.--Beaumont evidence." Tex. Fam. Code Ann. § 161.001; In re G.M., 1980, writ ref'd n.r.e.) (refusing to apply the traditional 596 S.W.2d at 846. "Clear and convincing evidence" default judgment rule in reviewing modification of con- means "the measure or degree of proof that will produce servatorship). Similarly, we conclude that it cannot be in in the mind of the trier of fact a firm belief or conviction the child's best interest to determine whether his rela- as to the truth of the allegations sought to be estab- tionship with his parent should be terminated based lished." Tex. Fam. Code Ann. § 101.007 (West 2002); solely on the parent's failure to file timely a response to accord In re C.H., 89 S.W.3d 17, 19, 25, 45 Tex. Sup. Ct. the petition. We recognize that the parent's failure to re- J. 1000 (Tex. 2002); In re G.M., 596 S.W.2d at 847. This spond may affect the trial court's consideration of the standard is an intermediate standard, falling between the issues in the case, but it should not form the sole basis preponderance standard of ordinary civil proceedings for the trial court's judgment. [**25] and the reasonable doubt standard of criminal We suspect that the facts presented in this case are proceedings. In re G.M., 596 S.W.2d at 847. anomalous and that this is a unique case. We note that The heightened "clear and convincing evidence" the [**23] Department of Protective and Regulatory burden of proof alters our appellate legal sufficiency Services was not a party in this dispute, and no attorney standard of review. In re J.F.C., 96 S.W.3d 256, 256-66, ad litem was appointed to represent the parent. 3 In addi- 46 Tex. Sup. Ct. J. 328 (Tex. 2002); In re C.H., 89 tion, Lydia claims her failure to appear was due in part to S.W.3d at 25. This is because our traditional no-evidence bad legal advice and misrepresentations made to her by standard of review does not adequately protect the par- her mother, who initiated this action. Finally, although ents' constitutional interests. In re J.F.C., 96 S.W.3d at Lydia filed a motion for new trial after the court rendered 264-65. In conducting our legal sufficiency review in its judgment, the court overruled the motion, thus deny- termination cases, we must review all the evidence in the ing Lydia the opportunity to present her perspective light most favorable to the finding and the judgment to about the allegations made against her. 4 Under these determine "whether the evidence is such that a factfinder unusual circumstances, we would be remiss were we to could reasonably form a firm belief or conviction" that rely only on the allegations in the petition as a basis for the grounds for termination were proven. Id. at 265-66. severing this parent-child relationship. In other words, we must assume that the fact finder re- solved disputed facts in favor of its finding if a reasona- 3 This statement should not be construed to ble fact finder could do so. Id. at 266. We must also dis- suggest that an attorney ad litem should be ap- regard all evidence that a reasonable fact finder could pointed to represent a parent whose parental have disbelieved or found to have been incredible. Id. rights are subject to termination without a show- This does not mean that a court [**26] must disregard ing of indigency. The record in this case does not all evidence that does not support the finding, as this reveal whether the issue of Lydia's indigency was could skew the analysis of whether there is clear and ever raised before the court. We merely observe convincing evidence. Id. We must consider undisputed that often, even if the parent is not present at trial, evidence even if it does not support the finding. Id. Fol- an attorney ad litem usually is, thereby appearing lowing this review, if we determine that no reasonable for the parent and protecting the parent's rights. In fact finder could form a firm belief or conviction that the re K.C., 88 S.W.3d 277, 279 (Tex. App.--San An- matter that must be proven is true, then we must con- tonio 2002, pet. denied) (holding that because clude that the evidence is legally insufficient and render party's attorney appeared at trial, even though judgment in favor of the parent. Id. party did not, there was no default judgment; case was tried on the merits). Termination of Parental Rights [**24] Page 7 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

A court may terminate parental rights if it finds that: whether Lydia "engaged in conduct or knowingly placed (1) the parent has engaged in any of the specific conduct the child with persons who engaged in conduct that en- enumerated in the family code as grounds for termina- dangers the physical and emotional well being of the tion, and (2) termination is in the best interest of the child," to which Jackie [**29] answered, "Yes." The child. Tex. Fam. Code Ann. § 161.001; Richardson v. child's attorney ad litem then cross-examined Jackie and Green, 677 S.W.2d 497, 499, 27 Tex. Sup. Ct. J. 466 asked for "some specifics about what Lydia has done to (Tex. 1984). The fact finder must determine that clear make you believe it's best that her parental rights be ter- and convincing evidence supports both elements; proof minated." Jackie responded that Child Protective Ser- of one element does not relieve the burden of proving the vices had previously investigated Lydia, and since then, other. Holley v. Adams, 544 S.W.2d 367, 370, 20 Tex. Lydia "has not really made any changes in that area." Sup. Ct. J. 76 (Tex. 1976) (quoting Wiley v. Spratlan, According to Jackie, Lydia "still doesn't have a job. She 543 S.W.2d 349, 351, 19 Tex. Sup. Ct. J. 385 (Tex. has left them and she has another baby by another man 1976)). [**27] The child's best interest is not the sole that she's lived with that I believe is involved in drugs, goal of involuntary termination proceedings; termination and she comes to visit [K.W.] on occasion, but she takes "may not be based solely upon what the trial court de- no responsibility to be her mother." The ad litem further termines to be the best interest of the child." Id. inquired whether the CPS investigation had to do with "an issue of physical neglect," to which Jackie respond- The trial court's final order states that it found by ed, "Yes. She left [K.W.] alone by herself," when she clear and convincing evidence (1) that Lydia has en- was about six months old. This was the totality of the gaged in conduct or knowingly placed the child with evidence adduced to support the allegation that Lydia persons who engaged in conduct that endangers the engaged in conduct or placed her child with persons who physical or emotional well-being of the child, (2) that she engaged in conduct that endangered her daughter's well failed to support the child in accordance with her ability being. during a period of one year ending within six months of the date of the filing of the petition, and (3) that termina- Viewing the testimony in the light most favorable to tion of the parent-child relationship between Lydia and the judgment, as we must, we conclude that a fact finder her child is in the best interest of the child. could not reasonably have formed a firm belief or con- viction [**30] that this ground for termination was [*450] Dangerous Conduct proven. In attempting to support the conclusory state- Under section 161.001(1)(E), a parent's rights may ment that Lydia engaged in conduct or placed her child be terminated if it is established by clear and convincing with someone who engaged in conduct that endangered evidence that the parent has "engaged in conduct or her child, Jackie sparingly described events from the past knowingly placed the child with persons who engaged in that led to CPS's involvement and Lydia's current con- conduct which endangers the physical or emotional servatorship status. Jackie's testimony revealed about well-being of the child." Tex. Fam. Code Ann. § CPS's prior involvement only that Lydia had at one time 161.001(1)(E). Under subsection (E), we look exclu- left her child alone when the child was six months old. sively to the parents' [**28] conduct, including ac- The record also reveals, however, that following that tions, omissions, or the parents' failure to act. In re D.M., incident (about which we know very little), CPS did not 58 S.W.3d 801, 811 (Tex. App.--Fort Worth 2001, no seek termination of Lydia's parental rights, and indeed, pet.). Termination based on this subsection must be was ultimately dismissed from the suit. Moreover, Lydia based on more than a single act or omission; a voluntary, was named possessory conservator of her child. There is deliberate, and conscious "course of conduct" that en- no evidence that any of Lydia's conduct directly resulted dangered the child's physical and emotional well-being is in endangerment to the child's physical or emotional required. Texas Dep't of Human Servs. v. Boyd, 727 well-being. Indeed, there is no evidence that the child's S.W.2d 531, 534, 30 Tex. Sup. Ct. J. 352 (Tex. 1987); In physical or emotional well-being [*451] was ever en- re D.M., 58 S.W.3d at 811. "Endanger" means to expose dangered. In re D.T., 34 S.W.3d 625, 634 (Tex. to loss or injury, to jeopardize. In re M.C., 917 S.W.2d App.--Fort Worth 2000, pet. denied) (holding there must 268, 270, 39 Tex. Sup. Ct. J. 373 (Tex. 1996). The en- be evidence of endangerment to child's physical or emo- dangering acts need not have been directed at the child, tional well-being as direct result of parent's conduct). or have caused an actual injury or threat of injury to the [**31] Additionally, termination under this subsection child to constitute conduct that endangers the child's must be based on more than a single act or omission; physical or emotional well-being. In re M.C., 917 S.W.2d evidence of a voluntary "course of conduct" is required. 268, 269, 39 Tex. Sup. Ct. J. 373 (Tex. 1996). Id. This simply was not established here. Finally, Jackie's statement that she believes Lydia lives with a man who is At the termination hearing, Jackie was the only wit- involved in drugs is no more than a mere surmise or sus- ness who testified. She was asked by her attorney picion, which is not the same as evidence. See Kindred v. Page 8 150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **

Con/Chem, Inc., 650 S.W.2d 61, 63, 26 Tex. Sup. Ct. J. S.W.3d 256, 46 Tex. Sup. Ct. J. 328, and In re C.H., 89 383 (Tex. 1983). We therefore hold that there is no le- S.W.3d 17, 45 Tex. Sup. Ct. J. 1000. gally sufficient evidence to support the trial court's find- Again, the only evidence Jackie provided regarding ing that Lydia engaged in conduct or placed her child the child's best interest was her own testimony that she with others who engaged in conduct that endangered the believed termination of Lydia's parental rights and adop- child's well-being. tion of the child by Thomas and Iris Cummins would be Failure to Support in the child's best interest. No specifics were provided with regard to any of the enumerated factors listed Under section 161.001(1)(F), the parent-child rela- above. And no evidence was adduced about the Cum- tionship may also be terminated if the court finds by mins or their relationship with the child. We conclude clear and convincing evidence that the parent has failed that [*452] this testimony amounts to no evidence of to support the child in accordance with the parent's abil- the best interest of the child. ity during a period of one year ending within six months of the date of the filing of the petition. Tex. Fam. Code [**34] CONCLUSION Ann. § 161.001(1)(F) (West 2002). With regard to this basis for termination, Jackie offered no evidence, other We conclude that although the citation failed to in- than to [**32] track the statutory language and assert clude Jackie's name as the petitioner, the record reveals that Lydia "failed to support the child in accordance with that Lydia was properly served. We therefore overrule her ability, during the period of one year, ending within Lydia's first issue. Because we hold that the evidence is six months of the date of filing this petition." We hold legally insufficient to support any of the bases relied on that no legally sufficient evidence exists to support the by the trial court in terminating Lydia's parental rights, trial court's finding that Lydia failed to support her child we sustain Lydia's third and fourth issues. 5 Generally, in accordance with her ability for a period of one year. when a legal insufficiency point is sustained, the re- viewing court renders judgment in favor of the party Best Interest of the Child bringing the point of error. Heine, 835 S.W.2d at 86; Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 821 (Tex. Although a strong presumption exists that the best inter- App.--San Antonio 1999, no pet.). When the interests of est of a child is served by keeping conservatorship in the justice require a new trial for further development of the natural parent, this presumption may be overcome by facts, however, the case can be remanded. Tex. R. App. clear and convincing evidence of the parent's present P. 43.3(b); Flores, 5 S.W.3d at 821. While we recognize unfitness. In re D.M., 58 S.W.3d at 814. The supreme the child's interest in having a quick and final resolution court has listed several factors to be considered by a of this case and the need for stability in the child's life, court in determining whether this presumption has been we believe that because this case presented us with an rebutted: (1) the desires of the child, (2) the present and issue of first impression in Texas and because we have future physical and emotional needs of the child, (3) the announced a new rule in addressing that issue, the inter- present and future emotional and physical danger to the ests [**35] of justice are better served by remanding child, (4) the parental abilities of the person seeking cus- this case for further proceedings. It is also in the child's tody, (5) programs available to assist those persons in best interest for the trial court to fully develop the evi- promoting the child's best interest, (6) plans for the child dence and render a judgment following consideration of by those individuals [**33] or by the agency seeking the evidence. Accordingly, we reverse the judgment of custody, (7) the stability of the home or the proposed the trial court and remand this case for further proceed- placement, (8) the acts or omissions of the parent that ings consistent with this opinion. may indicate that the existing parent-child relationship is not appropriate, and (9) any excuse for the acts or omis- 5 Because we are reversing for legally insuf- sions of the parent. Holley, 544 S.W.2d at 371-72. In ficient evidence, we do not reach Lydia's remain- addition, a fact finder may infer that past conduct en- ing issues. See Tex. R. App. P. 47.1 (opinion dangering the well being of a child may recur in the fu- should be as brief as practicable and address ture if the child is returned to the parent. In re D.L.N., every issue necessary to final disposition of ap- 958 S.W.2d 934, 941 (Tex. App.--Waco 1997, pet. de- peal). nied), disapproved on other grounds by In re J.F.C., 96 David Puryear, Justice Page 1

Caution As of: Mar 30, 2015

Gregorio ZAMARRIPA Appellant, v. Bianca SIFUENTES and Charles RAKOSKY Appellees.

Appeal No. 04-96-00145-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

929 S.W.2d 655; 1996 Tex. App. LEXIS 4071

September 11, 1996, Delivered September 11, 1996, Filed

PRIOR HISTORY: [**1] Appeal from the Procedural History 166th District Court of Bexar County. Trial Court No. Appellees, as plaintiffs below, took a default judg- 94-CI-09068. Honorable Andy Mireles, Judge Presiding. ment on a personal injury claim on August 19, 1994. At some point that same day, appellant's counsel filed an DISPOSITION: DISMISSED FOR WANT OF JU- answer to the petition. Thereafter, both sides engaged in RISDICTION written discovery and settlement negotiations. Appel- lant's counsel, however, did not learn that a default judgment had been taken in the case until [**2] April of COUNSEL: FOR APPELLANT: Joe R. Greenhill, Jr., 1995, whereupon he filed a motion to reconsider the de- Craig Andrew Nevelow, WRIGHT & GREENHILL, fault judgment. The trial court denied the motion to re- P.C., Austin, TX. consider on the ground its plenary power in this case had expired, and defendant thereafter appealed. FOR APPELLEES: Bruce J. Mery, LAW OFFICES OF BRUCE J. MERY, Karl E. Hays, LAW OFFICES OF Upon examination of the transcript, we questioned KARL E. HAYS, San Antonio, TX. whether our jurisdiction had been invoked. The parties agree that the case must be dismissed for want of juris- JUDGES: Opinion By: Catherine Stone, Justice. Sitting: diction, but disagree on the grounds for the dismissal. Tom Rickhoff, Justice, Catherine Stone, Justice, Phil Appellant argues that the default judgment is interlocu- Hardberger, Justice. tory and that the appeal should be dismissed for failure to bring a final appealable judgment. Appellees argue that OPINION BY: CATHERINE STONE the default judgment was final in 1994 and that this ap- peal should be dismissed as untimely filed. OPINION The Finality Issue [*656] The question presented in this appeal is whether the default judgment entered was interlocutory A judgment must dispose of all parties and all issues or final. We hold that the judgment entered in this case before the trial court in order for it to be considered final was interlocutory and we dismiss the appeal for want of and appealable. [*657] Park Place Hosp. v. Estate of jurisdiction. Milo, 909 S.W.2d 508, 510 (Tex. 1995). In contrast to a judgment entered following a trial on the merits, a de- Page 2 929 S.W.2d 655, *; 1996 Tex. App. LEXIS 4071, **

fault judgment carries no presumption of finality. See The judgment, however, must be certain, so that it Houston Health Clubs v. First Court of Appeals, 722 can be enforced by writ of execution. Ministerial officers S.W.2d 692, 693 (Tex. 1986). To determine an issue of must be able to carry the judgment into execution with- finality [**3] we are directed to divine the intention of out having to ascertain any additional facts. See H.E. the trial court "from the language of the decree and the Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 680 (Tex. record as a whole, aided on occasion by the conduct of App.--Corpus Christi 1991, writ denied). The statute the parties." Continental Airlines, Inc. v. Kiefer, 920 which mandates prejudgment interest in wrongful death, S.W.2d 274, 277 (Tex. 1996) (quoting 5 RAY W. personal injury, and property damage cases also provides MCDONALD, TEXAS CIVIL PRACTICE § 27:4[a] at for a tolling period during the time when a settlement 7 (John S. Covell, ed., 1992 ed.)). offer is pending. See id., § 6(b)-(f). The tolling provi- sions of § 6 (b) and (c) require the court to compare the The default judgment does not dispose of the prejudg- amount of the settlement offer to the amount of judg- ment interest claim pled in plaintiff's petition. The judg- ment. They also require exact information on the period ment is completely silent on prejudgment interest and of time the settlement offer was pending. The record does not contain a Mother Hubbard clause. Appellees reflects that written settlement offers were exchanged by argue that these omissions do not render the judgment the parties on more than one occasion prior to the entry interlocutory because the awarding of prejudgment in- of the default judgment. Because the pending dates and terest is mandatory in personal injury cases. See TEX. amounts of such [**6] offers are not clear as part of the REV. CIV. STAT. ANN. art. 5069-1.05, § 6(a) (Vernon record, it is no mere ministerial act to calculate prejudg- Supp. 1996) ("Judgments in ... personal injury ... cases ment interest. Taking these provisions into consideration, must include prejudgment interest."); Sisters of Charity we are unable to ascertain from the judgment when pre- v. Dunsmoor, 832 S.W.2d 112, 116 (Tex. App.--Austin judgment interest would begin to accrue. 1 [*658] The 1992, writ denied) ( § 6 amendment codified, modified, calculation of prejudgment interest involves factual is- and overturned portions of Cavnar v. Quality Control sues which remain unresolved by the default judgment. Parking, Inc., 696 S.W.2d 549 (Tex. 1985)). They seek to distinguish the supreme court's 1982 opinion in Hunt Oil 1 Appellant argues that appellees have not pled Co. v. Moore [**4] on two grounds -- it is not a person- prejudgment interest under the statutory authority al injury case and it was rendered prior to the legisla- of Section 6 of Article 5069-1.05; rather, appel- ture's codification of mandatory prejudgment interest in lees seek interest based upon a calculation begin- 1987. See Hunt Oil Co. v. Moore, 639 S.W.2d 459, 460 ning six months from date of occurrence as pre- (Tex. 1982). It is clear that the court found the judgment scribed in Cavnar. Regardless of the pleading de- in Hunt Oil to be interlocutory for two independent rea- ficiencies presented in this cause, the exclusive sons. The summary judgment called for an accounting to means of seeking prejudgment interest in a per- be rendered at a future date and it did not address sonal injury case is now found in TEX. REV. Moore's claim for prejudgment interest. Id. at 460. Either CIV. STAT. ANN. art. 5069-1.05, § 6 reason would render the judgment interlocutory. Appellees' counsel stated at the hearing on the mo- Appellees urge us to treat a mandatory award of tion for new trial that their petition only requests pre- prejudgment interest in the same manner post-judgment judgment interest in their prayer for relief. It is argued interest is treated. See Staff Industries v. Hallmark Con- that because [**7] counsel did not put on evidence of tracting, 846 S.W.2d 542, 551 (Tex. App.--Corpus Chris- prejudgment interest at the earlier hearing at which the ti 1993, no writ) (post-judgment interest recoverable default judgment was granted and the judgment does not whether or not specifically awarded in judgment). This grant prejudgment interest, that the judgment is some- rationale is based on the fact that the calculation of how final. That sounds like appellees are attempting to post-judgment interest is purely a ministerial function. abandon their claim for prejudgment interest. For pur- The amount of actual damages and the date of the judg- poses of finality on a default judgment, however, one ment are reflected in the judgment itself and the method cannot trigger appellate timetables unilaterally. As noted of calculating interest is set by statute. See TEX. REV. in Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 CIV. STAT. ANN. art. 5069-1.05, § 2. Although [**5] (Tex. 1995), "The appellate timetable does not com- appellees cite no case law for support, the argument is mence to run other than by signed, written order, even tempting because the statute provides that the rate of when the signing of such an order is purely ministerial." prejudgment interest "shall be the same as the rate of The fact that appellees did not produce evidence at the postjudgment interest at the time of judgment." Id., § hearing on default does not allow us to presume waiver 6(g). or abandonment because there was no conventional trial on the merits. See Strut Cam Dimensions, Inc. v. Sutton, 896 S.W.2d 799, 801 (Tex. App.--Corpus Christi 1995, Page 3 929 S.W.2d 655, *; 1996 Tex. App. LEXIS 4071, **

writ denied) (presumption of finality only applies when months. The discovery involved standard questions con- conventional trial actually conducted); H.E. Butt Grocery cerned [**9] with liability and damages as opposed to Co. v. Bay, Inc., 808 S.W.2d at 680 (no presumption of post-judgment discovery. Appellees' counsel never dis- finality in default judgment). If appellees are attempting cussed these issues with appellant's counsel in the con- to abandon prejudgment interest, it is not [**8] clear text of the default judgment he had taken, in fact, he when the abandonment occurred. See Rosedale Partners never mentioned the judgment at all. Appellees' counsel v. 131 Judicial District Court, 869 S.W.2d 643, 644 admitted to the trial court he did not discuss it because he (Tex. App.--San Antonio 1994, orig. proceeding). As in had not determined for himself whether the answer was Rosedale Partners, the record before us does not contain filed prior to or after the default was taken. The parties any amended petition deleting the claim for prejudgment clearly acted as though the judgment was interlocutory. interest, an affidavit explaining when the claim was Conclusion abandoned, or any other evidence indicating an intent to abandon the remaining claim for prejudgment interest. We hold that the default judgment is interlocutory As there is no presumption of finality, we can only con- because the issue of prejudgment interest remains unre- clude that the issue of prejudgment interest remains solved. The trial court erred when it denied appellant's pending and the default judgment in interlocutory. We motion for new trial on the default judgment for want of find it indistinguishable from Hunt Oil Co. v. Moore, 639 jurisdiction. Our holding does not intend to speak to the S.W.2d 459, 460 (Tex. 1982). merits of the motion for new trial. That is something that is within the discretion of the trial court. We only declare Lastly, the conduct of the parties led the trial court that the trial court has jurisdiction to consider the motion to question whether it intended the default judgment to for new trial on the merits. be final. At the hearing on the new trial motion, counsel for appellees admitted to the trial court that after he took This appeal is dismissed for want of jurisdiction. the default judgment he learned that appellant was rep- resented by counsel who had filed an answer the same CATHERINE STONE day judgment was taken. They engaged in settlement JUSTICE discussions and written discovery over the next eight | | Neutral As of: April 7, 2015 6:06 PM EDT

Zepeda v. Giraud Court of Appeals of Texas, Fourth District, San Antonio June 29, 1994, Delivered ; June 29, 1994, Filed Appeal No. 04-93-00378-CV

Reporter 880 S.W.2d 833; 1994 Tex. App. LEXIS 1983

Robert L. ZEPEDA, Appellant, v. Eugene L. GIRAUD & was untimely, the ordinary appeal was dismissed. Margery F. GIRAUD, Appellants. Defendant subsequently perfected an appeal by writ of error. Appellees alleged in a counterpoint that the court Subsequent History: [**1] Motion for Rehearing lacked jurisdiction to hear appellant's challenge by writ Denied July 27, 1994. of error because appellant had already pursued an ordinary appeal from the same default judgment. An Prior History: Appeal from the County Court at Law appeal or writ of error to the court of appeals from a final No. 4 of Bexar County. Trial Court No. 207,755-A. judgment of a district or county court was permitted Honorable H. Paul Canales, Judge Presiding under Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (1986). The code did not allow for both an appeal and a Disposition: DISMISSED FOR WANT OF writ of error. Because appellant had not abandoned his JURISDICTION prior appeal, he was not entitled to pursue a writ of error pursuant to Tex. R. App. P. 5(b)(4). Therefore, the Core Terms appeal was dismissed for want of jurisdiction.

writ of error, default judgment, abandon, ordinary Outcome appeal, fail to file, perfecting an appeal, perfected, lack of jurisdiction, court of appeals, appeal bond, trial court, An appeal by writ of error from a default judgment in a pursued civil suit was dismissed for want of jurisdiction because appellant had previously perfected an ordinary appeal, which was dismissed by the court and not abandoned Case Summary by appellant.

Procedural Posture LexisNexis® Headnotes Appellant sought review by writ of error of a default judgment from the County Court at Law No. 4 of Bexar Civil Procedure > Appeals > Reviewability of Lower Court County (Texas), rendered against appellant and in favor Decisions > General Overview of appellees in a civil suit. Appellees alleged in a counterpoint of error that the appellate court lacked HN1 The right to appeal by writ of error to the court of jurisdiction to hear the appeal. appeals is provided by Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (1986), which provides that in a civil case Overview in which the judgment or amount in controversy exceeds $ 100, exclusive of interest and costs, a person may A default judgment was entered in favor of appellees in take an appeal or writ of error to the court of appeals a civil case in which the judgment or amount in from a final judgment of the district court or county court. controversy exceeded $ 100, exclusive of interest and That code provision also establishes the right to take an costs. Appellant filed an appeal bond and thus perfected ordinary appeal. an ordinary appeal from the default judgment. Because appellant failed to file a transcript and statement of facts Civil Procedure > Appeals > Reviewability of Lower Court on time and his motion for extension to file the record Decisions > General Overview 880 S.W.2d 833, *833; 1994 Tex. App. LEXIS 1983, **1

HN2 A litigant has the right to either an ordinary appeal pursued an ordinary appeal from the same default or an appeal by writ of error but not both. judgment.

Civil Procedure > ... > Pretrial Judgments > Nonsuits > The trial court rendered the default judgment on Voluntary Nonsuits December 14, 1992. Zepeda timely perfected an ordinary appeal from the default judgment by filing an Civil Procedure > Remedies > Writs > General Overview appeal bond on January 13, 1993. This court dismissed HN3 A party may abandon an appeal and sue out a writ Zepeda's appeal because he failed to file [**2] his of error from the same judgment. transcript and statement of facts on time and his motion for extension to file the record was also untimely. Zepeda Civil Procedure > Judgments > Pretrial Judgments > v. Giraud, No. 04-93-00148-CV (Tex. App.--San Antonio, General Overview March 24, 1993) (not published). Civil Procedure > ... > Pretrial Judgments > Default & On April 26, 1993, Zepeda filed his petition for writ of Default Judgments > General Overview error, bond, designation for transcript and request for Civil Procedure > ... > Pretrial Judgments > Default & written statement of facts in the trial court thus perfecting Default Judgments > Default Judgments the appeal by writ of error. Zepeda now asks this court Civil Procedure > Remedies > Writs > General Overview to review the default judgment by writ of error. Civil Procedure > Appeals > Appellate Jurisdiction > HN1 The right to appeal by writ of error to the court of General Overview appeals is provided by Civil practice and Remedies Civil Procedure > Appeals > Notice of Appeal Code section 51.012 which provides: Governments > Legislation > Statutory Remedies & Rights In a civil case in which the judgment or amount HN4 A party suffering a default judgment may perfect in controversy exceeds $ 100, exclusive of an appeal, or abandon it and pursue his statutory rights interest and costs, a person may take an appeal under the writ of error. or writ of error to the court of appeals from a final judgment of the district court or county Counsel: For Appellant: Pepos S. Dounson, 2109 San court. Pedro Avenue, San Antonio, TX 78212. TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (Vernon For Appellees: David L. Willis, JACOBS, WILLIS & 1986) (emphasis supplied). This code provision also WILKINS, 105 S. St. Mary's St., Suite 2300, San establishes the right to take an ordinary appeal. It is Antonio, TX 78205. clear that the statute establishes the right to take either an ordinary appeal or an appeal by writ of error. HN2 A Judges: Sitting: Alfonso Chapa, Chief Justice, Tom litigant has the right to either an [**3] ordinary appeal or Rickhoff, Justice, Phil Hardberger, Justice an appeal by writ of error but not both. Id.

This court has previously stated that HN3 a party may Opinion by: PHIL HARDBERGER abandon an appeal and sue out a writ of error from the same judgment. Alejo v. Pellegrin, 616 S.W.2d 331, 333 Opinion (Tex. Civ. App.--San Antonio 1981, writ dism'd). The present case does not involve an abandoned appeal. [*834] OPINION Zepeda properly perfected his first appeal but failed to file his record on time and then compounded the error Opinion by: Phil Hardberger, Justice by failing to file his motion for extension of time within the deadline set out in Texas Rule of Appellate Robert Zepeda seeks review by writ of error of a default Procedure 54(c). Zepeda's appeal was dismissed for judgment rendered against him and in favor of Eugene failure to file his record in accordance with the Texas and Margery Giraud. In one counterpoint of error, Rules of Appellate Procedure. Zepeda did not abandon Appellees allege that this court lacks jurisdiction to hear his appeal, in fact Zepeda argued that his late filed Zepeda's appeal by writ of error because he has already transcript should be considered pursuant to Texas Rule Page 2 of 3 880 S.W.2d 833, *834; 1994 Tex. App. LEXIS 1983, **3

of Appellate Procedure 5(b)(4). Therefore, the rule pursue his statutory rights under the writ of error." Id. at concerning abandoned appeals does not apply. 521.

[*835] In Houtex Managing General Agency, Inc. v. The instant case involves neither an abandoned appeal Hardcastle, 735 S.W.2d 520 (Tex. App.--Houston [1st nor a failure to perfect an appeal. Zepeda perfected his Dist.] 1987, writ ref'd n.r.e.), the court held that an appeal and pursued the appeal, albeit unsuccessfully, appellant's attempted direct appeal from a default to the end. Zepeda is not entitled to a second bite at the judgment, which was dismissed for lack of jurisdiction apple. [**4] because the appeal bond was filed late, did not This appeal is dismissed for want of jurisdiction. constitute an appeal so as to deprive the appellate court of jurisdiction to subsequently review the default PHIL HARDBERGER judgment by writ of error. The Houtex court stated that "it is well settled that HN4 a party suffering a default JUSTICE judgment may perfect an appeal, or abandon it and

Page 3 of 3 Page 1

3 of 3 DOCUMENTS

Positive As of: Mar 30, 2015

YUMIN ZHAO, Appellant v. LONE STAR ENGINE INSTALLATION CENTER, INC., Appellee

No. 05-09-01055-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2009 Tex. App. LEXIS 7767

October 6, 2009, Opinion Filed

SUBSEQUENT HISTORY: Rehearing overruled by The trial court's judgment was signed on May 20, Zhao v. Lone Star Engine Installation Ctr., Inc., 2009 2009 and appellant filed a timely motion for new trial. Tex. App. LEXIS 8798 (Tex. App. Dallas, Nov. 5, 2009) Therefore, his notice of appeal was due by August 18, Petition for review denied by Yumin Zhao v. Lone Star 2009. See TEX. R. APP. P. 26.1(a). The notice of appeal Engine Installation Ctr., Inc., 2010 Tex. LEXIS 290 was filed on September 2, 2009, within the fifteen-day (Tex., Apr. 9, 2010) period provided by rule 26.3. See TEX. R. APP. P. US Supreme Court certiorari denied by Yumin Zhao v. 26.3(a). Therefore, we directed appellant to file a motion Lone Star Engine Installation Ctr., 2010 U.S. LEXIS to extend time to file his notice of appeal setting forth a 8593 (U.S., Nov. 1, 2010) reasonable explanation for the need of the extension. See TEX. R. APP. P. 10.5(b), 26.3(b); Verburgt v. Dorner, PRIOR HISTORY: [*1] 959 S.W.2d 615 (Tex. 1997). On Appeal from the 134th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 08-10266. In his extension motion, appellant asserted, "Plain- tiff's motion for new trial was timely filed on June 19, COUNSEL: For APPELLANT: Yumin Zhao, Richard- 2009. The hear [sic] date of motion for new trial was set son, TX. on Sept. 2nd, 2009; Therefore whether to appeal [*2] only could be determined after the hearing of motion for For APPELLEE: James N. Apostle, Dallas, TX. new trial." Appellee responded that appellant did not provide a reasonable explanation because the motion for JUDGES: Before Justices Wright, Richter, and Fillmore. new trial had already been overruled by operation of law on August 3, 2009, and appellant did not file his notice OPINION of appeal until the 105th day after the trial court's judg- ment was signed. We agree that appellant has not pro- MEMORANDUM OPINION vided a reasonable explanation for the need of the exten- sion. The Court has before it appellant's September 22, 2009 motion to extend time to file his notice of appeal The Texas Supreme Court has defined "reasonable and appellee's response in opposition to the motion. For explanation" to mean "'any plausible statement of cir- the reasons set forth below, we deny the extension mo- cumstance indicating that failure to file within the [re- tion and dismiss the appeal. quired] period was not deliberated or intentional, but was Page 2 2009 Tex. App. LEXIS 7767, *

the result of inadvertence, mistake, or mischance." Gar- Weik v. Second Baptist Church of Houston, 988 S.W.2d cia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 437, 439 (Tex. App.--Houston [1st Dist.] 1999, pet. de- 1989) (internal citation omitted). "Any conduct short of nied) (holding unreasonable appellant's explanation that deliberate or intentional noncompliance qualifies as in- his lawyer told him if he appealed case while trial court advertence, mistake, or mischance. . . ." Id. at 670. still had authority to reinstate case, trial court would re- instate case and appellant would have difficult time Texas courts have rejected as unreasonable explana- prosecuting [*4] claim because of trial court's displeas- tions that show a defendant's conscious or strategic deci- ure with appellant). This Court has likewise rejected as sion to wait to file a notice of appeal, reasoning the ex- unreasonable explanations that showed an appellant's planations did not show inadvertence, mistake, or mis- decision to wait to file a notice of appeal was not due to chance. See, e.g., Hykonnen v. Baker Hughes Bus. Sup- inadvertence, mistake, or mischance, but was due to a port Servs., 93 S.W.3d 562, 563-64 (Tex. App.--Houston conscious decision to ignore the appellate timetable in [14th Dist.] 2002, no pet.) [*3] (holding unreasonable favor of the trial court's jurisdictional timetable. See appellant's explanation he failed to file notice of appeal Crossland v. Crossland, No. 05-06-00228-CV, 2006 Tex. until he found attorney to represent him on appeal at lit- App. LEXIS 2881, 2006 WL 925032 (Tex. App.--Dallas tle or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 Apr. 11, 2006, no pet.) (mem. op.) (per curiam). (Tex. App.--Amarillo 2000, no pet.) (holding unreasona- ble explanation that when State disclosed, after expira- Because appellant's explanation in this case shows tion of time for filing notice of appeal, its intent to indict he was aware of the deadline for filing his notice of ap- appellant for other crimes, appellant decided to appeal to peal, but consciously ignored the deadline in favor of preserve eligibility for probation in upcoming trials); waiting for a ruling on his motion for new trial, we con- Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex. clude appellant has not provided a reasonable explana- App.--Amarillo 1999, no pet.) (op. on reh'g) (holding tion for the need of the extension. We deny his motion to unreasonable explanations counsel miscalculated due extend time to file his notice of appeal. date for filing notice of appeal when he failed to file no- We dismiss the appeal for want of jurisdiction. tice of appeal on miscalculated date and counsel's pre- occupation with other cases without detailed explanation PER CURIAM of complexities and relevant deadlines of other cases); Tex. R. App. P. Rule 4

Tex. R. App. P. Rule 4 This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION ONE. GENERAL PROVISIONS

Rule 4 Time and Notice Provisions 4.2 No Notice of Trial Court's Judgment in Civil Case. (a) Additional Time to File Documents. (1) In General. --If a party affected by a judgment or other appealable order has not - within 20 days after the judgment or order was signed - either received the notice required by Texas Rule of Civil Procedure 306a.3 or acquired actual knowledge of the signing, then a period that, under these rules, runs from the signing will begin for that party on the earlier of the date when the party receives notice or acquires actual knowledge of the signing. But in no event may the period begin more than 90 days after the judgment or order was signed. (2) Exception for Restricted Appeal. --Subparagraph (1) does not extend the time for perfecting a restricted appeal. (b) Procedure to Gain Additional Time. --The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a.5. (c) The Court's Order. --After hearing the motion, the trial court must sign a written order that finds the date when the party or the party's attorney first either received notice or acquired actual knowledge that the judgment or order was signed.

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STATE RULES TEXAS RULES OF CIVIL PROCEDURE PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS SECTION 2. Institution of Suit

Tex. R. Civ. P. 26 (2015)

Rule 26 Clerk's Court Docket

Each clerk shall also keep a court docket in a permanent record that shall include the number of the case and the names of the parties, the names of the attorneys, the nature of the action, the pleas, the motions, and the ruling of the court as made. Tex. R. App. P. Rule 26 This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS

Rule 26 Time to Perfect Appeal 26.1 Civil Cases. --The notice of appeal must be filed within 30 days after the judgment is signed, except as follows: (a) the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files: (1) a motion for new trial; (2) a motion to modify the judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court; (b) in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed; (c) in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed; and (d) if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later. 26.2 Criminal Cases. (a) By the Defendant. --The notice of appeal must be filed: (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the sentence is imposed or suspended in open court if the defendant timely files a motion for new trial. (b) By the State. --The notice of appeal must be filed within 20 days after the day the trial court enters the order, ruling, or sentence to be appealed. 26.3 Extension of Time. --The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).

History Amended by Texas Court of Criminal Appeals, Misc. Docket No. 08-102, effective September 1, 2008; Amended by Texas Supreme Court, Misc. Docket No. 08-9115 and Texas Court of Criminal Appeals, Misc. Docket No. 08-103, effective September 1, 2008. Tex. R. App. P. Rule 26

Annotations Texas Rules Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

Page 154 of 154 Tex. R. App. P. Rule 30

Tex. R. App. P. Rule 30 This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS

Rule 30 Restricted Appeal to Court of Appeals in Civil Cases A party who did not participate - either in person or through counsel - in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.

Annotations

Notes PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 145, Overview of the Appellate Process; Ch. 151, Appellate Proceedings in Supreme Court; Ch. 154, Restricted Appeals.

Comment to 1997 change This is former Rule 45. The appeal by writ of error procedure is repealed. A procedure for an appeal filed within 6 months--called a restricted appeal--is substituted. This rule sets out who may take a restricted appeal. Rules 25.1 and 26.1 set out the method of perfection and the time for perfecting the appeal.

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Page 48 of 48 Tex. Civ. Prac. & Rem. Code § 38.004

Tex. Civ. Prac. & Rem. Code § 38.004 This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL, JUDGMENT, AND APPEAL > SUBTITLE C. JUDGMENTS > CHAPTER 38. ATTORNEY'S FEES

§ 38.004. Judicial Notice The court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence in: (1) a proceeding before the court; or (2) a jury case in which the amount of attorney's fees is submitted to the court by agreement.

History Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985.

Annotations

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STATE RULES TEXAS RULES OF CIVIL PROCEDURE PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS SECTION 5. Citation

Tex. R. Civ. P. 99 (2015)

Rule 99 Issuance and Form of Citation

a. Issuance. --Upon the filing of the petition, the clerk, when requested, must forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition. Upon request, separate or additional citations shall be issued by the clerk. The clerk must retain a copy of the citation in the court's file. b. Form. --The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk, and (12) shall notify the defendant that in case of failure of defendant to file and answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c of this rule. c. Notice. --The citation shall include the following notice to the defendant: "You have been sued. You may employ an attorney. 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 days after you were served this citation and petition, a default judgment may be taken against you." d. Copies. --The party filing any pleading upon which citation is to be issued and served shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so furnished the clerk shall make no charge for the copies.

HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 11-9250, effective January 1, 2012. Tex. R. Civ. P. 106

Tex. R. Civ. P. 106 This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 5. Citation

Rule 106 Method of Service (a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or (2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto. (b) Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.

History SOURCE: Art. 2026. Change: The officer is directed to note upon the copy of the citation, which he delivers to the defendant, the date of delivery. He delivers a copy of the petition in all cases. Change by amendment effective January 1, 1976: Service "by registered or certified mail" is authorized in certain instances. Change by amendment effective January 1, 1978: Subdivisions (b) and (e) are new. The rule is rewritten. Change by amendment effective January 1, 1981: The rule is reorganized to clarify its meaning. Alternate methods of service are authorized if either (a)(1) or (a)(2) are tried without success. Both methods are not required. Change by amendment effective January 1, 1988: Conforms to amendment to Rule 103. PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 31, Service on Residents; Ch. 32, Personal Jurisdiction and Service on Nonresidents. See also Civil Practice & Remedies Code §§ 17.021--17.025.

Annotations

Texas Rules Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

Page 24 of 24 Texas Rules Copyright (c) 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

*** This document is current through February 4, 2015 ***

STATE RULES TEXAS RULES OF CIVIL PROCEDURE PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS SECTION 5. Citation

Tex. R. Civ. P. 107 (2015)

Rule 107 Return of Service

(a) The officer or authorized person executing the citation must complete a return of service. The return may, but need not, be endorsed on or attached to the citation. (b) The return, together with any document to which it is attached, must include the following information: (1) the cause number and case name; (2) the court in which the case is filed; (3) a description of what was served; (4) the date and time the process was received for service; (5) the person or entity served; (6) the address served; (7) the date of service or attempted service; (8) the manner of delivery of service or attempted service; (9) the name of the person who served or attempted to serve the process; (10) if the person named in (9) is a process server certified under order of the Supreme Court, his or her identification number and the expiration date of his or her certification; and (11) any other information required by rule or law. (c) When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. (d) When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if ascertainable. (e) The officer or authorized person who serves or attempts to serve a citation must sign the return. If the return is signed by a person other than a sheriff, constable, or the clerk of the court, the return must either be verified or be signed under penalty of perjury. A return signed under penalty of perjury must contain the statement below in substantially the following form: "My name is , my date of birth is

(First) (Middle) (Last) , and my address is , , , , and

(Street) (City) (State)(Zip Code)

. I declare under penalty of perjury that the foregoing is true and correct.

(Country)

Executed in County, State of , on the day of , .

(Month) (Year)

Declarant" (f) Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court. (g) The return and any document to which it is attached must be filed with the court and may be filed electronically or by facsimile, if those methods of filing are available. (h) No default judgment shall be granted in any cause until proof of service as provided by this rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed by an alternative method under Rule 106, shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.

HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 11-9250, effective January 1, 2012. Texas Rules Copyright (c) 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

*** This document is current through February 4, 2015 ***

STATE RULES TEXAS RULES OF CIVIL PROCEDURE PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS SECTION 11. Trial of Causes H. JUDGMENTS

Tex. R. Civ. P. 306a (2015)

Rule 306a Periods to Run from Signing of Judgment

1. Beginning of Periods. --The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to, motions for new trial, motions to modify judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment and requests for findings of fact and conclusions of law; but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose. 2. Date to Be Shown. --Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not invalidate any judgment or order. 3. Notice of Judgment. --When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4). 4. No Notice of Judgment. --If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed. 5. Motion, Notice and Hearing. --In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed. 6. Nunc Pro Tunc Order. --When a corrected judgment has been signed after expiration of the court's plenary power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment with respect of any complaint that would not be applicable to the original document. 7. When Process Served by Publication. --With respect to a motion for new trial filed more than thirty days after the judgment was signed pursuant to Rule 329 when process has been served by publication, the periods provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion. Tex. R. Civ. P. 683

Tex. R. Civ. P. 683 This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART VI. RULES RELATING TO ANCILLARY PROCEEDINGS > SECTION 5. Injunctions

Rule 683 Form and Scope of Injunction or Restraining Order Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial.

Annotations

Notes SOURCE: Federal Rule 65(d), unchanged. Change by amendment effective April 1, 1984: The last paragraph is added.

PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 50, Injunction. See also Civil Practice & Remedies Code §§ 65.001--65.045.

Texas Rules Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

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