                                                                                 ACCEPTED
                                                                             14-15-00747-CV
                                                             FOURTEENTH COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                      12/30/2015 12:07:20 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                             In The

                  Fourteenth Court of Appeals                FILED IN
                    _____________________            14th COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                     12/30/2015 12:07:20 PM
                      NO. 14-15-00747-CV              CHRISTOPHER A. PRINE
                    _____________________                     Clerk


W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,
                      Appellant

                               V.

      GREGORY PHAM, JOHN MA AND RAYMOND DAO,
                      Appellees.

     From Cause No. 201521720; 151st Judicial District Court
                     Harris County, Texas


    BRIEF OF APPELLANT W. GARRY WALDROP DDS, INC.
              D/B/A LIFETIME DENTAL CARE


                                    ZIMMERMAN, AXELRAD,
                                    MEYER, STERN & WISE, P.C.

                                    Jennifer S. Wilson
                                    State Bar No. 21697500
                                    3040 Post Oak Blvd., Suite 1300
                                    Houston, Texas 77056
                                    713.552.1234
                                    713.963.0859 (FAX)
                                    E-mail: jwilson@zimmerlaw.com

                                    ATTORNEYS FOR W. GARRY
                                    WALDROP DDS, INC. D/B/A
                                    LIFETIME DENTAL CARE
                   IDENTITY OF PARTIES AND COUNSEL

       In order that members of this Court may determine disqualification and
recusal under Rule 38.1(a) of the Texas Rules of Appellate Procedure, Real Parties
In Interest certify that the following is a complete list of parties, attorneys and
other parties who may have an interest in the outcome of this proceeding:

Defendant/Appellant:           W. Garry Waldrop DDS, Inc. d/b/a Lifetime
                               Dental Care
                               c/o Jennifer S. Wilson
                               Zimmerman, Axelrad, Meyer, Stern & Wise, P.C.
                               3040 Post Oak Blvd., 1300
                               Houston, Texas 77056
                               713.552.1234
                               713.963.0859 (FAX)

Plaintiffs/Appellees:          Gregory Pham, John Ma and Raymond Dao
                               Ned Gill, III
                               Gill, Revack, Samaan & Muller, LLP
                               6575 West Loop South, Suite600
                               Bellaire, Texas 77401
                               713.271.8282
                               713.271.2112 (FAX)

Presiding Judge:               Honorable Mike Engelhart
                               151st Judicial District Court of Harris County
                               201 Caroline, 11th Floor
                               Houston, Texas 77002
                               713.368.6222



                                                /s/ Jennifer S. Wilson
                                             Jennifer S. Wilson




                                        ii
                                    TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES ...................................................................................v
I. ISSUES PRESENTED.......................................................................................1
  Issue No. 1: Lifetime has the right to a restricted appeal. ...............................1
  Issue No. 2: The Trial Court erred in entering judgment against Lifetime
  because the record shows that that there was not strict compliance with the
  Texas Rules of Civil Procedure governing service of citation. .........................1
  Issue No. 3: The Trial Court erred in entering judgment against Lifetime
  because the record shows that the evidence was legally or alternatively
  factually insufficient to support an award of damages. ....................................2
  Issue No. 4: The Trial Court erred in entering judgment against Lifetime
  because the record shows that the evidence was legally or alternatively
  factually insufficient to support an award of attorneys’ fees. ..........................2
II. STATEMENT OF THE CASE ........................................................................2
III. STATEMENT OF FACTS ...............................................................................3
IV. SUMMARY OF THE ARGUMENT ...............................................................4
V. STANDARD OF REVIEW ...............................................................................4
VI. ARGUMENT AND AUTHORITIES ..............................................................4
  Issue No. 1 Restated:            Lifetime has the right to a restricted appeal. ............4
  Issue No. 2 Restated: The Trial Court erred in entering judgment against
  Lifetime because the record shows that that there was not strict compliance
  with the Texas Rules of Civil Procedure governing service of citation. ..........6
  Issue No. 3 Restated: The Trial Court erred in entering judgment against
  Lifetime because the record shows that the evidence was legally or
  alternatively factually insufficient to support an award of damages. ...........10
  Issue No. 4 Restated: The Trial Court erred in entering judgment against
  Lifetime because the record shows that the evidence was legally or
  alternatively factually insufficient to support an award of attorneys’ fees. .15

                                                    iii
VII. CONCLUSION ........................................................................................ 16
VIII. PRAYER........................................................................................................16
APPENDIX .............................................................................................................19




                                                          iv
                                        INDEX OF AUTHORITIES

CASES
Aetna Ins. Co. v. Klein, 325 S.W.2d 376 (Tex. 1959) .............................................12
Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) ..............................5, 6
B&W Sup. v. Beckman, 305 S.W.3d 10 (Tex. App. – Houston [1st Dist.]
  2009, pet. denied)..................................................................................................11
Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591 (Tex. App. –
  Dallas 1989, no writ) ............................................................................................10
Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex. App. –
  Houston [1st Dist.] 1999, no pet.)............................................................................9
Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex. App. – San
  Antonio 2002, pet. denied) .....................................................................................7
Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958 (Tex. App. –
  Texarkana 1975, no writ) ........................................................................................7
Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) .............................................................11
Cates v. Pon, 663 S.W.2d 99 (Tex. Civ. App. – Houston [14th Dist.] 1983,
  writ ref’d n.r.e.) .......................................................................................................6
Chesney v. Buddrus, 1988 WL 34838, at *1 (Tex. App. – Houston [1st Dist.]
  April 14, 1988, no writ)(not designated for publication) .......................................9
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................10
Dallas Railway and Terminal Co. v. Bankston, 51 S.W.2d 304 (Tex. 1932) .........12
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (Tex. App. –
  Houston [14th Dist. 2014, no pet.).........................................................................16
General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d
  942 (Tex. 1991).......................................................................................................5
Hercules Concrete Pumping Serv. v. Bencon Mgmt. & Gen. Contracting Corp.,
  62 S.W.3d 308 (Tex. App. – Houston [1st Dist.] 2001, pet. denied) ......................7
Industrial Models, Inc. v. SNF, Inc., 2014 WL 3696104, at *4 (Tex. App. –
  Fort Worth, July 24, 2014, no pet.).........................................................................9
Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650
  (Tex. 2009)............................................................................................................15
Jackson v. Gutierrez, 77 S.W.3d 898 (Tex. App. – Houston [14th Dist.] 2002,
  no pet.) ..................................................................................................................14
Lytle v. Cunningham, 261 S.W.3d 837 (Tex. App. – Dallas 2008, no pet.) ..............8
                                                              v
Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W. 3d 808 (Tex. App. –
  Dallas 2013, no pet.) .............................................................................................11
Mays v. Pierce, 203 S.W.3d 564 (Tex. App. – Houston [14th Dist.] 2006,
  pet. denied)............................................................................................................14
Nelson v. Najm, 127 S.W.3d 170 (Tex. App. – Houston [1st Dist.] 2003,
  pet. denied)............................................................................................................11
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997)
  (per curiam) .............................................................................................................6
North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714 (Tex. App. –
  Austin 2003, pet. denied) ........................................................................................7
Ortiz v. Avante Ville at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App. –
  Corpus Christi 1996, writ denied) ..........................................................................8
Pace Corp. v. Jackson, 284 S.W.2d 340 (Tex. 1955)..............................................13
Polansky v. Berenji, 393 S.W.3d 362 (Tex. App. – Austin 2012, no pet.)..............15
Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994)(per curiam) ...............6
Prudential Ins. Co. of America, Inc. v. Black, 572 S.W.2d 379 (Tex. Civ. App.—
  Houston [14th Dist.] 1978, no writ)......................................................................12
Qadurra v. Indo-European Foods, Inc. 141 S.W.3d 882 (Tex. App. –
  Dallas 2004, pet. denied) ......................................................................................14
Ramsey v. Jones Enterprises., 810 S.W.2d 902 (Tex. App. – Beaumont 1991,
  writ denied) ...........................................................................................................12
Santex Builders, LLC v. Guefen Constr., LLC, 2009 WL 4810286, at *4
  (Tex. App. – Houston [14th Dist.], December 15, 2009, no pet.) ........................10
Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App. – Fort Worth 1973,
  no writ) ....................................................................................................................9
Union Pacific R. Corp. v. Legg, 49 S.W.3d 72 (Tex. App. – Austin 2001,
  no pet.) .................................................................................................................10
Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411 (Tex. Civ. App. –
  Fort Worth 1962, no writ) .......................................................................................9
Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884
  (Tex. 1985)..........................................................................................................6, 8
Verlander Enter, Inc. v. Graham, 932 S.W.2d 259 (Tex. App. – El Paso 1996,
  no writ) ....................................................................................................................9
Wachovia Bank v. Gilliam, 215 S.W.3d 848 (Tex. 2007) .........................................6


                                                              vi
Whitaker v. Rose, 218 S.W.3d 216 (Tex. App. – Houston [14th Dist.] 2007,
 no pet.) ..................................................................................................................14
White v. Bath, 825 S.W.2d 227 (Tex. App. – Houston [14th Dist.] 1992,
 writ denied) ...........................................................................................................12
Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) .........................................................10


RULES
Tex. R. App. P. 26.1(c) and 30 ..................................................................................5
Tex. R. App. P. 30 ......................................................................................................5
TEX. R. APP. P. 9.4(i) ................................................................................................18
Tex. R. Evid. 1002 ...................................................................................................12


STATUTES
Tex. Civ. Pr. & Rem. Code § 38.001 (1) and (8).....................................................15
Tex. Civ. Pr. & Rem. Code § 38.001 et seq.............................................................15
Tex. Civ. Pr. & Rem. Code § 38.002(2) ..................................................................16




                                                             vii
               ABBREVIATIONS AND RECORD REFERENCES

“C.R.”            followed by a number refers to the Clerk’s Record filed in this
                  case.

“Supp. C.R.”      refers to a document which has been requested but not yet
                  signed by the Court, and which may be contained within a
                  Supplemental Clerk’s Record.

“R.R.”            followed by a page number refers to that certain page of the
                  Reporter’s Record taken on June 29, 2015.




                                      viii
                                     In The

                         Fourteenth Court of Appeals
                           _____________________

                             NO. 14-15-00747-CV
                           _____________________

  W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME DENTAL CARE,
                         Appellant

                                       V.

          GREGORY PHAM, JOHN MA AND RAYMOND DAO,
                          Appellees.

          From Cause No. 201521720; 151st Judicial District Court
                          Harris County, Texas


        BRIEF OF APPELLANT W. GARRY WALDROP DDS, INC.
                  D/B/A LIFETIME DENTAL CARE



TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

      COMES NOW W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME

DENTAL CARE (“Lifetime”), Appellant herein, and files its Brief.

                           I.   ISSUES PRESENTED

Issue No. 1: Lifetime has the right to a restricted appeal.


Issue No. 2: The Trial Court erred in entering judgment against Lifetime
because the record shows that that there was not strict compliance with the
Texas Rules of Civil Procedure governing service of citation.


                                        1
Issue No. 3: The Trial Court erred in entering judgment against Lifetime
because the record shows that the evidence was legally or alternatively
factually insufficient to support an award of damages.


Issue No. 4: The Trial Court erred in entering judgment against Lifetime
because the record shows that the evidence was legally or alternatively
factually insufficient to support an award of attorneys’ fees.

                       II.   STATEMENT OF THE CASE

      The underlying action was brought by Gregory Pham, John Ma and

Raymond Mao (“Plaintiffs”), the Appellees herein, against W. Garry Waldrop,

DDS, Inc. d/b/a Lifetime Dental Care (“Lifetime”), the Appellant. The suit alleged

fraud and breach of contract arising from an employment relationship between the

Plaintiffs and Lifetime. (C.R. at 3-8).

      No answer was filed by Lifetime and on July 1, 2015, after conducting an

evidentiary hearing, the trial court granted default judgment against Lifetime in the

aggregate amount of $111,100.00, plus pre-judgment and post-judgment interest

and attorneys’ fees. (C.R. at 19-20).

      Lifetime did not participate in any proceeding before the trial court prior to

the entry of the default judgment on July 1, 2015. Further, Lifetime did not file

any post-judgment motions or request for findings of fact and conclusions of law.

(See docket omissions (Supp. C.R. at 8-10).




                                          2
      On September 1, 2015, Lifetime timely filed its notice of restricted appeal

with the district clerk. (C.R. at 23-25).

                         III.   STATEMENT OF FACTS

      Upon filing of the underlying action by Plaintiffs, Citation was issued to

Lifetime requesting service on Lifetime at Lifetime’s principal office at 970 South

Fry Road, Kay, Texas 77450. (C.R. at 9). The citation was issued on April 15,

2015 and was received by Plaintiffs’ private process server on April 17, 2015.

(C.R. at 9). The return of service indicate that service was accomplished by

delivery to “W. Garry Waldrop, DDS, d/b/a Lifetime Dental Care, defendant, in

person,” on April 20, 2015. (C.R. at 9).

      On May 19, 2015, Plaintiffs filed their Motion for Default Judgment (C.R. at

10-16) and on June 29, 2015, the trial court conducted an evidentiary hearing.

Plaintiffs each testified that they had entered into a written agreement with

Lifetime, that they were to receive twenty-five percent (25%) of production and

that they had not been paid. (R.R. at 7, 8, 10, 12). Appellee Pham testified that his

damages were $58,343.00. (R.R. at 8). Appellee Ma testified that his damages

were $19,462.00. (R.R. at 10). Appellee Dao testified that his damages were

$26,759.00. (R.R. at 12, 13).

      Plaintiffs’ attorney, Ned Gill, III, testified that the attorneys’ fees incurred

by Appellee Pham were $1,600.00; the attorneys’ fees incurred by Appellee Ma


                                            3
were $1,600.00 and the attorneys’ fees incurred by Appellee Dao were $1,600.00.

(R.R. at 14).

                      IV.   SUMMARY OF THE ARGUMENT

       The judgment entered by the trial court was invalid because the record

shows that there was not strict compliance with the Texas Rules of Civil Procedure

governing service of citation.      In addition, the record further indicates that

Appellees’ claim for breach of contract was factually or legally insufficient to

support an award of damages in that the trial court incorrectly considered hearsay

evidence of written agreements upon which Appellees’ claims are based. The

record further shows that Appellees’ damages were at a minimum based upon

speculation and were not properly supported by evidence appropriately segregating

the categories of damages. Further, the pleadings and evidence were either legally

or factually insufficient to support an award of attorneys’ fees.

                            V.   STANDARD OF REVIEW

       This is a restricted appeal and, as such, the review is based upon error

appearing on the face of the record. No presumption exists in favor of the actions

in the trial court.

                      VI.   ARGUMENT AND AUTHORITIES


Issue No. 1 Restated:        Lifetime has the right to a restricted appeal.



                                           4
      A restricted appeal is a procedural device available to a party who did not

participate, either in person or through counsel, in a proceeding that resulted in a

judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a

default judgment.    Id.; General Elec. Co. v. Falcon Ridge Apartments, Joint

Venture, 811 S.W.2d 942, 943 (Tex. 1991). A party filing a restricted appeal must

demonstrate the following elements: (1) appellant appealed within six months of

the date the judgment was rendered; (2) the appellant was a party to the suit; (3)

the appellant did not participate in the hearing that resulted in the judgment

complained of; (4) the appellant did not timely file a post-judgment motion,

request for findings of fact and conclusions of law or a notice of appeal by the time

permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure; and (5) error

appears on the face of the record. See, Tex. R. App. P. 26.1(c) and 30; Alexander

v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

      In this case, Lifetime appealed within six months after the July 1, 2015

default judgment was entered by filing its Notice of Restricted Appeal on

September 2, 2015. Lifetime was a party to the underlying suit and did not

participate in the default judgment hearing that resulted in judgment being entered

against it. (R.R. 2, 4). Lifetime did not file any post-judgment motions or request

findings of fact or conclusions of law. (Supp. C.R. at 8-10). Error appears on the




                                          5
face of the record as will be more fully briefed and discussed below. There is no

dispute that Lifetime meets all requirements for a restricted appeal.


Issue No. 2 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that that there was not strict compliance
with the Texas Rules of Civil Procedure governing service of citation.

      If proper service in compliance with the Texas Rules of Civil Procedure is

not affirmatively shown, there is error on the face of the record. Primate Constr.,

Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994)(per curiam). For purposes of the

restricted appeal, the face of the record consists of all of the papers on file,

including the reporter’s record, at the time that judgment is entered. No extrinsic

evidence may be considered. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d

269, 270 (Tex. 1997)(per curiam); ); Alexander v. Lynda’s Boutique, 134 S.W.3d

at 848-49.

      When a default judgment is challenged by restricted appeal, there are no

presumptions in favor of valid service. Wachovia Bank v. Gilliam, 215 S.W.3d

848 (Tex. 2007); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690

S.W.2d 884, 885 (Tex. 1985); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. Civ. App. –

Houston [14th Dist.] 1983, writ ref’d n.r.e.) Service of process was deficient in this

case and the error is apparent from the face of the record because the return of

citation reflects delivery on a person or entity other than W. Garry Waldrop, its

registered agent as stated in Plaintiffs’ Original Petition. Instead, the return shows
                                          6
service on “W. Garry Waldrop, DDS (d/b/a Lifetime Dental Care), defendant, in

person,” which leads to confusion over whether service was attempted on the

corporate entity, which is doing business as Lifetime Dental Care, or W. Garry

Waldrop, the individual, who is not doing business as Lifetime Dental Care. In

either case, the return does not affirmatively show that the person served was the

defendant or was an individual authorized to accept service on behalf of the

corporate defendant. In addition, there is a fatal discrepancy between the corporate

defendant to whom the citation was issued and the name of the purported

“defendant” identified in the return. The return, therefore, is invalid. Benefit

Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 861 (Tex. App. – San Antonio

2002, pet. denied)(a return that does not identify the defendant corporation as the

entity served is invalid); Hercules Concrete Pumping Serv. v. Bencon Mgmt. &

Gen. Contracting Corp., 62 S.W.3d 308, 310-11 (Tex. App. – Houston [1st Dist.]

2001, pet. denied) (the return did not give the complete and correct name of the

defendant); North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 720

(Tex. App. – Austin 2003, pet. denied) (return omitted “Life” from defendant’s

name); Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958, 959 (Tex.

App. – Texarkana 1975, no writ) (return did not identify the defendant as a

corporation as it was identified in the petition and citation).




                                           7
       Moreover, where the citation states one name to receive service but the

record reflects that the citation was served on a person or entity with a different

name, the service of process if fatally defective. In this case, citation was issued to

W. Garry Waldrop DDS Inc. (d/b/a Lifetime Dental Care) and was served on W.

Garry Waldrop DDS, with no indication of corporate existence. Uvalde Country

Club v. Martin Linen Supply Co., 690 S.W.2d at 885 (delivering citation to “Henry

Bunting” ineffective when petition alleges that registered agent is “Henry Bunting,

Jr.”); Lytle v. Cunningham, 261 S.W.3d 837, 840-41 (Tex. App. – Dallas 2008, no

pet.) (holding service invalid when citation identifies “Mr. Chris Lytle” but return

indicates delivery on “Christopher Lytle”).              While the failure to include the

corporate designation “Inc.” has been held not to invalidate service,1 the return in

this cannot be fixed merely by inserting the corporate designation after the name of

the party served, W. Garry Waldrop DDS, defendant, because there is no further

indication that process was served on an individual with the capacity to accept the

petition and citation on behalf of the corporation. This omission distinguishes the

instant case from the factual circumstances in Ortiz v. Avante Ville at Corpus

Christi, Inc., 926 S.W.2d 608 (Tex. App. – Corpus Christi 1996, writ denied),

where the citation and return of service specifically stated that service was to be

effected upon the corporate defendant by service on “Pat Wiggins Operations

1
  See Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 612 (Tex. App. – Corpus
Christi 1996, writ denied).
                                               8
Specialist.” No such information is contained in the return of service in this case.

The Court is left with the puzzle of who was actually served, the corporation – and,

if so, what individual with authority to accept service was served - or the individual

– who is not a party? Because the record does not affirmatively demonstrate that

Plaintiffs’ Original Petition and citation was served on an individual with authority

to accept them on behalf of the corporate defendant, Plaintiffs’ attempted service is

invalid and of no effect. Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789,

791 (Tex. App. – Houston [1st Dist.] 1999, no pet.); Verlander Enter, Inc. v.

Graham, 932 S.W.2d 259, 261 (Tex. App. – El Paso 1996, no writ).

      Further, there is no statement in the record that establishes compliance with

Rule 108, which requires a sworn statement from the process server that he or she

is disinterested in the suit. This omission is fatally defective and mandates reversal

of the default judgment. Chesney v. Buddrus, 1988 WL 34838, at *1 (Tex. App. –

Houston [1st Dist.] April 14, 1988, no writ) (not designated for publication);

Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411, 412-13 (Tex. Civ. App. – Fort

Worth 1962, no writ); Scucchi v. Woodruff, 503 S.W.2d 356, 357-59 (Tex. Civ.

App. – Fort Worth 1973, no writ); Industrial Models, Inc. v. SNF, Inc., 2014 WL

3696104, at *4 (Tex. App. – Fort Worth, July 24, 2014, no pet.).

      Strict compliance is determined by whether the exact procedural

requirements have been met, not whether the intended party received notice of the


                                          9
lawsuit. Union Pacific R. Corp. v. Legg, 49 S.W.3d 72, 77 (Tex. App. – Austin

2001, no pet.). Even actual notice without proper service is not sufficient to

convey jurisdiction on the trial court to render default judgment against Lifetime.

Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990); Santex Builders, LLC v.

Guefen Constr., LLC, 2009 WL 4810286, at *4 (Tex. App. – Houston [14th Dist.],

December 15, 2009, no pet.). Because Plaintiffs did not strictly comply with the

rules relating to the issuance of citation, the manner and mode of service and the

return of process, the default judgment against Lifetime cannot be sustained.

Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591, 592 (Tex. App. –

Dallas 1989, no writ).


Issue No. 3 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that the evidence was legally or
alternatively factually insufficient to support an award of damages.

      In a legal sufficiency challenge, the appellate court must sustain the

challenge if the record shows one of the following (1) a complete absence of a vital

fact; (2) rules of law or evidence bar the court from giving weight to the only

evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact

is no more than a scintilla; or (4) the evidence conclusively establishes the opposite

of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In a

restricted appeal, the sufficiency of the evidence may be challenged on the face of

the record. In reviewing a factual insufficiency of the record, the appellate court
                                         10
conducts a neutral review of all of the evidence. Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986). An appellate court reverses for factual insufficiency only if the

ruling is so against the great weight and preponderance of the evidence as to be

manifestly erroneous or unjust. Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. App.

– Houston [1st Dist.] 2003, pet. denied).

      In order to recover on an action for breach of contract, the plaintiff must

provide competent evidence of the following:

      a.     There is a valid, enforceable contract.

      b.     The plaintiff is a proper party to sue for breach of contract.

      c.     The plaintiff performed, tendered performance of, or was excused

from performing its contractual obligations.

      d.     The defendant breached the contract.

      e.     The defendant’s breach caused the plaintiff injury.

B&W Sup. v. Beckman, 305 S.W.3d 10, 16 (Tex. App. – Houston [1st Dist.] 2009,

pet. denied); Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W. 3d 808, 813-14

(Tex. App. – Dallas 2013, no pet.). Each of the plaintiffs in this case testified at

the default judgment hearing that he had entered into a written contract with

Lifetime. (R.R. at 7, 10, 12). Yet no copy of any written agreement appears in the

record, either attached to Plaintiffs’ Original Petition as an exhibit or introduced




                                            11
into evidence at the hearing on Plaintiffs’ Motion for Default Judgment. (C.R. at

3-8),(R.R. at 1-37).

      Where, as here, the testimony offered concerns the contents of a writing, the

best evidence rule comes into play. Tex. R. Evid. 1002. Plaintiffs each testified to

terms of payment contained in the written agreement each had with Lifetime, yet

no written contract appears in the record. The best evidence of the terms of

compensation and payment contained in the written agreements is the document

itself and the trial court erred in admitting hearsay evidence of the Plaintiffs

offered to prove the contents of those agreements. Aetna Ins. Co. v. Klein, 325

S.W.2d 376, 379-80 (Tex. 1959); White v. Bath, 825 S.W.2d 227, 231 (Tex. App. –

Houston [14th Dist.] 1992, writ denied); Prudential Ins. Co. of America, Inc. v.

Black, 572 S.W.2d 379, 380 (Tex. Civ. App.—Houston [14th Dist.] 1978, no writ);

Ramsey v. Jones Enterprises., 810 S.W.2d 902, 905 (Tex. App. – Beaumont 1991,

writ denied). Moreover, there is a general rule that incompetent evidence, even

when admitted without objection, has no probative force and will not support a

judgment. Prudential Ins. Co. of America, Inc., 572 S.W. 2d at 379, citing with

approval Dallas Railway and Terminal Co. v. Bankston, 51 S.W.2d 304, 309 (Tex.

1932).




                                         12
      The absence of competent proof of a critical element of Plaintiffs’ breach of

contract claim – the existence of a valid, enforceable contract - appears on the

record and merits reversal of the trial court’s judgment.

      Lifetime further contends that the evidence was either legally or factually

insufficient evidence to support the award of damages to the Plaintiffs. Plaintiffs’

Original Petition clearly states that at the time it was filed Plaintiffs were uncertain

whether they had been paid all compensation to which they allege they were

entitled and further states that damages will be based, at least in part, on

“information known or expected to be known during the course of the case.” (C.R.

at 4, ¶6; 6, ¶12). The reporter’s record certainly does not indicate whether the

Plaintiffs, testifying individually as to their alleged damages, were stating an

amount that was known as of the date of testimony or whether their testimony on

this issue was rank speculation. (R.R. at 7, 8,10, 12, 13).

      While Plaintiffs are not foreclosed from a remedy for the lack of the ability

to provide mathematical certainty as to the value of their damages, they are

required to show that certainty of the fact of damages. Pace Corp. v. Jackson, 284

S.W.2d 340, 348 (Tex. 1955). There is no such evidence, even minimal, in the

record.

      Moreover, there was no testimony offered by the Plaintiffs that they had

performed or tendered performance of any services pursuant to their written


                                          13
contracts. The only evidence on the record that might be construed as some

support for this element is the allegation in Plaintiffs’ Original Petition that

“Plaintiffs provided the services as agreed.” (C.R. at 5)       Such a conclusory

statement is hardly proof of performance.

      Plaintiffs have pleaded for damages consisting of (1) loss of income and (2)

financial loss. (C.R. at 6, ¶13). The measure of damages for breach of contract is

normally compensation for a party’s expectation interest in the contract, or “benefit

of the bargain” damages. Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App. –

Houston [14th Dist.] 2006, pet. denied); Qadurra v. Indo-European Foods, Inc. 141

S.W.3d 882, 888-89 (Tex. App. – Dallas 2004, pet. denied). However, “loss of

income” and “financial loss,” although arguably including benefit of the bargain

damages, may also include loss of production, loss of market value, loss of

investment and loss of business reputation. There is no attempt by the Plaintiffs in

their testimony to segregate each damage element and the trial court did not

specify the damage elements it was awarding. There is, therefore, no way for this

Court to determine if the trial court has awarded damages for which no evidence

was offered or damages that are not allowed by law. Therefore, this Court must

reverse the damage award and remand for a new trial. See Whitaker v. Rose, 218

S.W.3d 216, 224 (Tex. App. – Houston [14th Dist.] 2007, no pet.); Jackson v.

Gutierrez, 77 S.W.3d 898, 903-4 (Tex. App. – Houston [14th Dist.] 2002, no pet.).


                                         14
Issue No. 4 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that the evidence was legally or
alternatively factually insufficient to support an award of attorneys’ fees.

      Texas law does not allow recovery of attorneys’ fees unless authorized by

statute or contract. Polansky v. Berenji, 393 S.W.3d 362, 368 (Tex. App. – Austin

2012, no pet.).   In order to recover attorneys’ fees, a party must plead with

specificity the basis for their recovery. Absent express language in a contract or a

codified right in a statue, the trial court has no inherent authority to award

attorneys’ fees. Intercontinental Group P’ship v. KB Home Lone Star L.P., 295

S.W.3d 650 (Tex. 2009).

      Plaintiffs’ Original Petition does not designate a basis for the award of

attorneys’ fees, whether they are being sought pursuant to a provision in the absent

written contracts between Plaintiffs and Lifetime or whether they are being sought

pursuant to Tex. Civ. Pr. & Rem. Code § 38.001 et seq. The pleadings, therefore,

do not provide a legal basis for an award of attorneys’ fees.

      Nor have Plaintiffs established a right to attorneys’ fees pursuant to statute.

Although Chapter 38 of the Texas Civil Practice and Remedies Code allows for the

recovery of attorneys’ fees for (1) rendered services, or (2) if the claim is for an

oral or written contract, there was no proof offered by the Plaintiffs that they had

rendered or tendered performance of services. Tex. Civ. Pr. & Rem. Code § 38.001

(1) and (8). Further, the factual and legal insufficiency of the evidence regarding

                                         15
Plaintiffs’ claims for damages render their claims for attorneys’ fees - which are

necessarily dependent upon a sustainable award of damages - erroneous and

merits reversal of the trial court judgment.

      Chapter 38 of the Texas Civil Practice and Remedies Code specifies the

bases for recovering attorneys’ fees in the absence of an express contractual

provision or other statutory authority. Presentment of a claim to the opposing

party is required. Tex. Civ. Pr. & Rem. Code § 38.002(2). The record does not

reflect that presentment of Plaintiffs’ claims to Lifetime was made. Genender v.

USA Store Fixtures, LLC, 451 S.W.3d 916, 924-28 (Tex. App. – Houston [14th

Dist. 2014, no pet.).

                               VII.   CONCLUSION

      For the reasons stated     herein, Lifetime respectfully requests that the

Court reverse the trial court’s judgment and remand this matter to the trial court for

a new trial, and for such other and further relief at law and in equity to which it is

entitled. Further, the Appellant prays that all cost incurred related to this appeal be

granted against the Appellees.

                                 VIII.   PRAYER

      WHEREFORE, PREMISES CONSIDERED, W. Garry Waldrop, DDS, Inc.

d/b/a Lifetime Dental Care, requests that this Court reverse the trial court judgment




                                          16
and remand the case to the trial court, and for such other relief to which Lifetime

may be entitled.

                                      Respectfully submitted,

                                      ZIMMERMAN, AXELRAD,
                                      MEYER, STERN & WISE, P.C.


                                      By: /s/ Jennifer S. Wilson
                                         Jennifer S. Wilson
                                         State Bar No. 21697500
                                         3040 Post Oak Blvd., Suite 1300
                                         Houston, Texas 77056
                                         713.212.2674 (Direct)
                                         713.552.1234 (Main)
                                         713.212.2790 (Direct Facsimile)
                                         jwilson@zimmerlaw.com


                         CERTIFICATE OF SERVICE

      I hereby certify that on this 30th day of January, 2016, a true and correct

copy of Appellant’s Brief was served by eFile Texas Website upon the following

counsel of record:

Mr. Ned Gill, III
Gill, Revack, Samaan & Muller, LLP
6575 West Loop South, Suite 600
Bellaire, Texas 77401
Attorneys for Appellees

                                                /s/ Jennifer S. Wilson
                                             Jennifer S. Wilson




                                        17
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that Appellant’s Brief complies with the type and
volume requirements pursuant to Rule 9 of the Texas Rules of Appellate
Procedure:

   • This Brief contains 3,360 words, excluding the portion of the Brief
     exempted under TEX. R. APP. P. 9.4(i);

   • This Response has been prepared using Microsoft Word 2010 word-
     processing software. The typeface is a proportionally spaced typeface using
     Times New Roman 14 point font (except for footnotes which use a 12 point
     font)



                                                   /s/ Jennifer S. Wilson
                                                 Jennifer S. Wilson




                                       18
                                        In The

                            Fourteenth Court of Appeals
                              _____________________

                                NO. 14-15-00747-CV
                              _____________________

     W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,
                           Appellant

                                          V.

            GREGORY PHAM, JOHN MA AND RAYMOND DAO,
                            Appellees.

            From Cause No. 201521720; 151st Judicial District Court
                            Harris County, Texas



                                       APPENDIX




1.     Final Judgment                                      C.R. 19-20

2.     Return of Citation                                  C.R. 9

3.     Plaintiffs’ Original Petition                       C.R. 3-8

4.     Plaintiffs’ Motion for Default Judgment             C.R. 10-16

5.     Relevant Excerpts from Hearing on Plaintiffs’
       Motion for Default Judgment, June 29, 2015          R.R. 1-24

6.     Trial Court Docket Sheet                            Supp. C.R. 8-10

7.     Notice of Appeal                                    C.R. 23-25

                                          19
8.   Tex. R. App. Proc. 30

9.   Tex. R. App. Proc. 26.1(c)




                                  20
                                                                                          6/29/201511:23LM AM
                                                                       Chris Daniel - District Clerk Harris County
                                                                                          Envelope No. 5858153
                                                                                    By: VERONICA GONZALEZ
                                                                                  Fifed: 6/29/2015 11:23U4 AM

                                     NO. 2015-21720                                                    Pgs-2

                                                                                                         DC
 GREGORY PHAM, JOHN MA                         §            IN THE DISTRICT COURT                          5
 And RAYMOND DAO
 Plaintiffs,                                   §
                                               §
 V.                                            §            151ST JUDICIAL DISTRICT
                                               §
 W, GARRY WALDROP, ODS, INC.                   §
 d/fo/a LIFETIME DENTAL CARE                   §
 Defendant                                     §             HARRIS COUNTY, TEXAS




        At the hearing on this cause, Plaintiffs appeared through their attorney of record.
Defendant although duly cited to appear and answer herein, has failed to file an answer
within the time allowed by law

      The Court has considered the pleadings and records on file in this cause and the.
evidence and is of the opinion that judgment should be rendered for Plaintiffs.




                           ...
      It is accordingly ADJUDGED that GREGORY PHAM, Plaintiff, recover from W.
GARRY WALDROP, DOS, INC., d/b/a LIFETIME DENTAL CARE, Defendant, an
independent JUDGMENT for-

      1      $   58.343     as the principal amount due to GREGORY PHAM;

      2      £     2,917 _ as interest on lire principal amount to the date of judgment;
      3.    i 1,600         as reasonable and necessary attorney’s fees;

      4,     all taxable costs of court;

     5.     post-judgment interest at the rate of five percent per year on the total
judgment from the date of judgment until paid.

    It is accordingly ADJUDGED that JOHN MA, Plaintiff, recover from W. GARRY
WALDROP, DOS, INC. d/b/a LIFETIME DENTAL CARE, Defendant, an independent
JUDGMENT for-

      1.     S 19,462       as the principal amount due to JOHN MA,

      2.     $   1,462      as interest on the principal amount to the date of judgment;

                                           Page t of 2

                                                                                            19
      3.                       as attorney's fees;

      A,      a![   taxable costs of court;

     5      post-judgment interest at the rate of five percent per year on the total
judgment from the date of judgment until paid,




                              ....
      it is accordingly ADJUDGED that RAYMOND DAO, Plaintiff, recover from W.
GARRY WALDROP, DDS, INC.. d/b/a LIFETIME DENTAL CARE, Defendant, an
independent JUDGMENT for-

      1.      $      26,755     as the principal amount due to RAYMOND DAO;

      2.

      3,

      4.
              $

              $
                      2,157

                      1,600 ... as interest on the principal amount to the date of judgment;

                               as attorney's fees;

              all taxable costs of court;

      5,    post-judgment interest at the rate of five percent per year on the total
judgment from the date of judgment until paid,

      it is ORDERED that each of Plaintiffs' Judgments are independent of the other
and each shall have an independent right to have all writs of execution and other
process necessary to enforce their respective judgments,

      This Final Judgment finally disposes of all parties and all claims and is
appealable,


       SIGNED on
                                                                 Signed:
                                                                                 7
                                                                7/1/2015
                                                       JUDGE PRESIDING




                                              Page 2 of 2


                                                                                       20
ul                                                                         CAUSE NO. 2 0152:172 0
s
C-J                         *
i
’v.                                                                       RECEIPT        NO ,                                   0.00                   CIV
                                                                                          **********                                     TR   # '73121915
S PLAINTIFF: PHAM,                GREGORY                                                                             in The            151st
tJ         vs „                                                                                                       Judicial District Court
3     DEFENDANT: W GARRY WALDROP DDE INC (D/B/A LIFETIME DENTAL CAR                                                   of Harris County, Texas
E                                                                                                                     15 1ST DISTRICT COURT
                                                                                                                      Houston. TX             _
                                                                          CITATION
jjj    THE STATE OF TEXAS
B      County of Harris




                                                                                                                                              2f
       TO: W GARRY WALDROP DDS INC (D/B/A LIFETIME DENTAL CARE)                                                       Time:
           570 SOUTH FRY ROAD KATY TX 77450                                                                                       Hflrrla £0urity,         9122
                                                                                                                      By.                             TolElli
                                                                                                                                              <J(>
                                                                                                                                                              c

               Attached is a copy of PLAINTIFF * S ORIGINAL PETITION

       This instrument was filed on the 15 fh day of April, 2 015. in the above cited cause number
       and court. The instrument attached describes the claim against you.

          YOU HAVE BEEN SUED,  You may employ an attorney.  If you or your attorney do not file a
      written answer with the District Clerk who issued this citation by 1Q:0D a.m. on the Monday
      next following tho expiration of 20 days after you were served this citation and petition,
      a default judgment may be taken against you,


       TO OFFICER SERVING:
           This citation was issued on 15th day of April, 201S, under my hand and
       seal of said court.
                                                 N.
                                                           /'tf H4»*<r
                                                             A.
                                                                . %r              v
       Issued at request pfi                             / gV                  VCrÿlRls fiSNIEL,        District Cleric
                                                                  _j\—\


                                                             .....
       GILL, NED III                                    i5                                      County, Texas
       6575 WEST LOOP SOUTH, SUITE                 600*;ÿ=.                              Caroline             Houston, Texas 77002
       BELLAIRE, TX 77401                               V4N                                Box 4651, Houston, Texas 77210)
       Tel: (713) 271- S 282
       Bar No. ; 7921400                                                          GENERATED BY: CHAMBERS, WANDA RENE                                 ULW/ /l       077 704


                                                        OFFICER/ AUTHOR12ED                PERSON RETURN

       Game to hand at            4 oo      o 1 clock              .M.     ,   on the                     of      A(?nl                                   ,       36 .
       Executed . a t (address)
                                                                   FrMÿ?iaa.<AJ                                                        _                              in

                     Am S                    County at            Iv.tt           o * clock        /r   ,H.i on the                     day of       npA
      /vDf Cr by delivering               toVi                                                                                   efendant, in per BOIL, a
       true copy of this citation                  together with               the ac company ing             J                       copy (iesÿ'of the
        'V12uVvV £=£ [)h       VkJifVr G
       attached thereto andi endorsed on said copy of
                                                            ir-


       To certify which l           affix my hand officially this
                                                                                         the Citation the date of delivery.
                                                                                             f   day of           fi\pn f                                 . avc          -
       Fee : $
                                                                                                        |T'
                                                                                                                        Evpneg
                                                                                                              _ of          j-ÿVfis             County, Texas



       OliUtC                     rW2
                                Affiant
                                                                                                     By       linn i<SlMn'n£yÿ _
                                                                                                                            Seput-y

       On this day,                                     UTt       , known to me to be the person whose
       signature appears on the foregoing return, personally appeared    After being by me duly sworn,            .
       he/ she stated that this citation was executed by him/her in the exact manner recited on the
       return.

                                                                                   3.1                                Apr L                                       3pl5       .
       SWORN TO AND SUBSCRIBED BEFORE ME,                         on      this              dny of
                                                                                                                            ’                                 ,


                                                                                                     Notary Public
                                          itOife      KHANGif
                                          ETTSO MY COMMISSION EXPIRES                                                                  RECORDER'S MEMORANDUM
                  W.IVT.CIH.f                  1
                                                     Pabfuaiy 4 1, BD16                                                             This HBtomedl brfpw
                                                                                                                                          ante lime d'mafling
                                                                                                                                                           9
                                                                                           4;i5r2D15 12:02:29 PM
                                                                         Chris Oaÿet - District Clerk Harris County
                                                                                            Emafope No. 469711 1
                     2015-21720 /Court: 151                                                    By: Sherry1 Dowaft
                                                                                     Filed: 4/15/201& 12:D2;29 PM



                                NO-
 GREGORY PHAM, JOHN MA                                       IN THE DISTRICT COURT
 and RAYMOND DAO                             *
                                             §
                                             §
 V,                                          §                    . JUDICIAL DESTRICT
                                             5
 W, GARRY WALDROP,         DOS, INC.         §               HARRIS COUNTY, TEXAS
 d/b/a LIFETIME DENTAL CARE                  §




                          PLAINTIFFS* ORIGINAL PETITION


70 THE HONORABLE JUDGE OF SAfD COURT:

      Comes now Plaintiffs, GREGORY PHAM, JOHN MA and RAYMOND DAOs by

and through their attorney of record, Ned QiAi, III; and files this their Original Petition
complaining of the uniawfut acts of W, GARRY WALDROP, DOS, INC; d/b/a LIFETIME

DENTAL CARE and, tor cause of action, would respectfully show the Court:

                               Discovery ControlPlan - Level 2

      1Il ls GREGORY PHAM, JOHN MA and RAYMOND DAO!s intent that discovery
in this case be conducted under T£X, R, CiV. P. 190-3, discovery control plan - ievei 2.

                                       Parties and Service
       2. GREGORY PHAM is an individual who resides in Houston, Hams County,

Texas, JOHN MA is an individual who resides in Houston, Hama County, Texas,

RAYMOND DAO is an individual who resides in Houston, Harris County, Texas

       3- Defendant, W, GARRY WALDROP, DD$, INC. ri/hfe LIFETIME DENTAL

CARE fe a tor profit Texas     Corporation, doing business    in the City of Katy, Hams

County, Texas and may be served with proceÿ by serving its registered agent as listed



                                         Page 1 offi



                                                                                                3
with the State of Texas: W> GARRY WALDROP at 902 Frostwood, No. 186, Houston,

Texas 77024 or anywhere the registered agent or a corporate officer may be located.

                                      Jurisdiction end Venue

       4,    This Court has jurisdiction over the Defendant because W. GARRY

WALDROP, DDS, ING. d/h/a LIFETIME DENTAL CARE is a Texas Corporation doing

business in the City of Katy, County of Harris and State of Texas, The Court has

jurisdiction over the controversy because the subject matter in controversy is within the

jurisdictional limits of this court
       5,   Venue is proper in Harris County, Texas, because the events underlying this
lawsuit occurred in Harris County, Texas*

                                        Factual Background

       6. The Plaintiffs were employed as contract dentists for W. GARRY WALDROP,

DDS, Inc, d/b/a     LIFETIME DENTAL CARE {hereinafter "WALOROF}. The                   parties

entered into agreements; wherein WALDROP agreed with each Plaintiff that each
Plaintiff wouid receive compensation for services provided under the agreement,

equaling 25 percent or more >of those revenues collected for the services of the Plaintfff-

dentist It is Plaintiffs' Information and belief that Plaintiffs were not paid in fuH the

amounts agreed upon by the parties,       if is further Plaintiffs1 information and belief that
Defendant engaged iri allowing discounts or fabricating discounts to patients fh an effort

to conceal collections, thereby reducing the amount WALDROP wouid he obligated

under the agreements to pay Piaintiff-dentists.

                                      Claim for FRAUD against
            W, GARRY WALDROP, DDS, iNC. d/b/a LIFETIME DENTAL CARE.

       7.     W, GARRY WALDROP, DDS, INC. d/b/a LIFETIME DENTAL CARE


                                          Page 2 of £



                                                                                              4
concealed or failed to disclose certain feds to the Plaintiffs; W. GARRY WALDROP,

PPG; INC,     mm LIFETIME: DENTAL CARE had a ddy to disclose certain facts to
Pfelhflffs, these fads were material and W, GARRY WALDROP, DDS, INC: d/b/a

LIFETIME DENTAL QARE knew or was ignorant or did not have an opportunity to

discover the facts, or W. GARRY WALDROP, DOS, INC. dtota LIFETIME DENTAL

CARE was deliberately silent when It had a duty to speak. Plaintiffs were Injured from

Defendant's conduct.

                       Claim for BREACH OF CONTRACT against
            W. GARRY WALDROP, DDS, INC.         mm
                                            LIFETIME DENTAL CARE.
       8.    GREGORY PHAM, JOHN MA and RAYMOND DAO where ell contract

employees for W. GARRY WALDROP, Dpfc INC. dfc/a               LIFETIME DENTAL CARE.
WALDROP agreed to pay compensation for services provided to WALDROP by
GREGORY PHAM, JOHN MA and RAYMOND DAO. Piainiiffs provided the services as
agreed, bpt WALDROP failed So pay td RainSffs the full amount of compensation as

agreed. As a result of said breach of eontraoh Plaintiffs have incurred damages and/or

financlanoss:
                                      Conditions Precedent

       £L All conditions precedent required of claimants under the taw have been

performed and/or have occurred.

                                           Attorney Fees

       1C. GREGORY PHAM, JOHN MA and RAYMOND DAO re-aliege and

incorporate herein, by referenceÿ the    same as if My copied and set forth at length, the
factual allegations set out in the Petition.




                                          Page $ of S



                                                                                         5
       tl. GREGORY PHAM, JOHN MA and RAYMOND DAO are entitled to attorney

fees incurred in the prosecution of this suit, and m the event of   a successful appeal of
the judgment, GREGORY PHAM, JOHN MA and RAYMOND DAO are entitled to

attorney fees for the appeal,

                                           Damages

      12. By reason erf the above and foregoing, GREGORY PHAM. JOHN MA and

RAYMOND DAO have been damaged in the sum: of up to hut no more than the

maximum Jurisdictional limits of this Court. This amount Is based on the current status

of the case and the information known or expected to be known during the course of the

case, GREGORY PHAM, JOHN           MA and RAYMOND DAO reserve the right; to adjust
this amount as the damages ate developed-

      it. As a direct or proximate result: of the occurrence made the basis of diis
lawsuit, GREGORY PHAM, JOHN MA- and RAYMOND DAO were caused to suffer

damage, loss and injury, in addition GREGORY PHAM, JOHN MA and RAYMOND

DAO. have suffered;-
      (a) Loss of income;
      fb) Finandajioss;
                                          interest

      14, GREGORY PHAM, JOHN MA and RAYMOND DAO 'Would request

prejudgmeht and post-judgment interest at the maximum legal rate compounded daily

oh both the principal and all penalties from defendants.

                                         Amendments




                                        Page 4 of 6



                                                                                         6
        m GREGORY PHAM, JOHN MA and RAYMOND DAO spedfioaily reserve the
right to amend and plead such other and different points as further discovery is made: in

this cause of action*
                                       dory Trial Demand
        16, GREGORY          PHAM. JOHN MA and RAYMOND DAO hereby make their
demand for trial by jury.
                                       Prayer for Relief

        17. WHEREFORE, PREMISES CONSIDERED, GREGORY PHAM, JOHN MA and

RAYMOND DAO prey that Defendant W. GARRY WALDROP, DDS, fNC. d/bm

LiFETiMEiDENTAL CARE be duty cited to appear and answer herein; and that, upon a
ftml trial of this cause, that GREGORY PHAM, JOHN MA and RAYMOND DAO
recover;

        a. judgment against Defendant for the damages as set forth above, in ah smpurti
within the jurisdictional limits of this Gourt octhe maximum amount stated hereih;

        h interest pn the judgment at the legal rate Norn date of judgment until paid in
full;

        a prejudigment interest from the date of the incident to the data of Judgment on
the; damagesas ajowed bylaw;

        4 exemplary damages;
        e. costs of court;

        f. reasonable and necessary attorney fees; and




                                        Page'S pfe



                                                                                        7
       g. such other and further relief, both general and spedal, at law or in equity, to

which GREGORY PHAM, JOHN MA and RAYMOND DAO may show himself to be

justly entitled.

                                         Respectfully submitted,

                                         GILL REVACK SAMAAN & MULLER, LLP
                                         6575 West Loop South, Suite 600
                                         Bellaire, Texas 77401
                                         Tel: (713) 271-8282
                                         Fax: (713) 271-2112


                                          £
                                         By:.
                                            NED GILL, M
                                            State Bar No. 07921400
                                            Attorney for Plaintiffs GREGORY PHAM,
                                            JOHN MA and RAYMOND DAO




                                       Page 6 of 6



                                                                                        8
                                                                                              5ÿ1 a'2015 2:15-42 PM
                                                                         Chris Daniel - Dlslriol Clerk Harris Coenly
                                                                                            EnvalopE JJo. 5341703
                                                                                          By: JIMMY RODRIGUEZ
                                                                                      Fifed; 5/1a'2G15 2:15:42 PM


                                    NO. 2015-31720

 GREGORY PHAM, JOHN MA                      §               IN THE DISTRICT COURT
 And RAYMOND DAO
 Plaintiffs,                                §
                                            §
 V,                                         §              151ST JUDICIAL DISTRICT
                                            §
 W, GARRY WALDROP, DDS, INC.                §
 d/b/a LIFETIME DENTAL CARE                 §
 Defendant.                                 §                HARRIS COUNTY, TEXAS


                          MOTION FOR DEFAULT JUDGMENT


NOW COMES GREGORY PHAM, JOHN MA and RAYMOND DAO, hereinafter
Plaintiffs, and file this Motion for Default Judgment, and in support hereof, shows the
court the following:

      1„    Plaintiffs filed suit agamst Defendant, W, GARRY WALDROP, DDS, INC.
D/B/A LIFETIME DENTAL CARE on April 15, 2015, seeking damages for fraud and
breach of contract,

        2.      Defendant, W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME DENTAL
CARE, was served with citation on April 17, 2015. Defendant, W. GARRY WALDROP,
DDS, INC. D/8/A LIFETIME DENTAL CARE, has failed to appear or file an answer
within the time allowed by law and has wholly made default. The citation with proof of
service of Defendant has been on file with the clerk of the court ten days, exclusive of
the day of filing and the day of judgment.

      3,       The following documents are attached to this Motion:

               1,     Certificate of Last Known Maiimg Address
               2.     Nonmilitary Affidavit
       WHEREFORE, premises considered, Plaintiffs pray that the Court enter
judgment against Defendant, W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME
DENTAL CARE; that Plaintiffs recover costs expended in filing this suit; that Plaintiffs
recover prejudgment and postjudgment interest; and that Plaintiffs have such other and
further relief at law or in equity to which Plaintiffs may be justly entitled.


                                         Respectfully submitted,

                                         GILL REVACK SAMAAN & MULLER, LLP

                                        Page 1 of 2
                                                                                             10
  6575 West Loop South, Suite 600
  Beiiaire, Texas 77401
  Tel (713)271-8282
  Fax. (713) 271-21ÿ

         /
  By: J
  NED GILL, til
  Texas Bar No, 07921400
  Email: nedgiij 3 j®qrslegaL com
  Attorney for Plaintiffs




Pago t of 2
                                    11
                                                                                              5/19/2015 2:15-42 PM
                                                                         Chris Daniel - DIslricL Clerii Hamis County
                                                                                             Envelope Na. 5341703
                                                                                          By: JtMMY RODRIGUEZ
                                                                                      Filed; 5/19/2015 2:15:42 PM


                                     NO. 2015-21720

 GREGORY PHAM, JOHN MA                     §                   IN THE DISTRICT       COURT
 And RAYMOND DAO
 Plaintiffs,                               §
                                           §
 V,                                        §                   151ST JUDICIAL DISTRICT
                                           §
 W, GARRY WALDROP, DPS, INC.               §
 d/b/a LIFETIME DENTAL CARE                §
 Defendant                                 §                   HARRIS COUNTY, TEXAS


                                 NONMILITARY AFFIDAVIT


       BEFORE MEr the undersigned authority, on this day personally appeared NED
GILL, III, who swore on oath that the following facts are true;

      "My name is NED GILL, III. I am over 18 years of age, of sound mind, and fully
competent to make this affidavit, i have personal knowledge of the facts stated herein
and they are aI! true and correct.

        NTo the best of my belief and knowledge, W. GARRY WALDROP, DDS, INC.,
d/b/a LIFETIME DENTAL CARE is not currently in military service and has not been in
military service since this suit was filed.”

      SIGNED on          1   /
                     /       /

                                        Respectfully submitted,

                                         GILL REVACK SAMAAN & MULLER, LLP
                                         6575 West Loop South, Suite 600
                                        Betlaire, Texas 7/401
                                        Tel. (713} 271-8282
                                        Fax. (713) 271,2.} 12
                                                        :ÿÿÿ



                                        By:
                                        NED GILL, III
                                        Texas Bar No. 07921400
                                        Email: nedgili3@orsiegai.com
                                        Attorney for Plaintiffs



                                       Page 1of 2

                                                                                             12
                             SWORN TO BEFORE ME on
                                                          OV/ÿ,14 d&i*!       .
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           REBECCA SMITH
jÿdLÿ'Q 1UY COMMISSION EXPIRES
          JANUARY 20, 2019
                                  =ÿbjjik2£e                ’>TYyi,uC)
                                      Notary Public, State of te xn >




                                  Page 2 of 2

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                                                            I                                      -
                                                                                         5/19/2015 3:21:59 PM
                                                                     Chris Daniel - Dislricl Clerk Harris Counly
                                                                                        Envelope No. 5344962
                                                                                      By: JIMMY RODRIQUEZ
                                                                                  Filed; 5/19/2015 3:21:59 PM


                                  NO. 2015-21720

 GREGORY PHAM, JOHN MA                    §                IN THE DISTRICT COURT
 And RAYMOND DAO
 Plaintiffs,                              §
                                          §
 V.                                       §               151ST JUDICIAL DISTRICT
                                          §
 W, GARRY WALDROP, DOS, INC.              §
mid LIFETIME DENTAL CARE                  §
 Defendant,                               §                HARRIS COUNTY, TEXAS


                               NOTICE OF HEARING


      PLEASE TAKE NOTICE that a hearing has been set on the Motion for Default
Judgment for June 29, 2015 at S:00 a.m. in the 151st Judicial District Court of Harris
County, Texas.

                                       Respectfuliysubmitted,

                                       GILL, REVACK, SAMAAN & MULLER, LLP
                                       6575 West Loop South, Suite 600
                                       Bellaire, Texas 77401
                                       Tel. (713)271"8282
                                       Fax (713)271-2112



                                       By;
                                       NED GILL, Ell
                                       Texas Bar No 07921400
                                       Nedglll3@grsle.aai.com
                                       Attorney for Plaintiffs




                                      Page 1 of1




                                                                                         15
                                                                                     5/19/2015 2:15:42 PM
                                                                 Chris Daniel - Dislricl Clerk Harris Courtly
                                                                                    Envelope No. 5341703
                                                                                  By: JIMMY RODRIGUEZ
                                                                              Filed: 5/19/2015 2:15:42 PM
                                 NO, 2015-21720

 GREGORY PHAM, JOHN MA                  §              IN THE DISTRICT COURT
 And RAYMONO DAO
 Plaintiffs,                            §
                                        §
 V.                                     §              151ST JUDICIAL DISTRICT
                                        §
 W, GARRY WALDROP. DDS, INC.            §
 d/b/a LIFETIME DENTAL CARE             §
Defendant                               §               HARRIS COUNTY, TEXAS


        PLAINTIFFS’ CERTIFICATE OF LAST KNOWN MAILING ADDRESS


       I CERTIFY that the last known mailing address of Defendant W. GARRY
WALDROP, DDS, INC., d/b/a LIFETIME DENTAL CARE, against whom judgment is
taken in the above-entitled and -numbered cause, is 970 South Fry Road, Katy, Texas
77450.


                                      Respectfully submitted,

                                      GILL REVACK SAMAAN & MULLER, LLP
                                      6575 West Loop South, Suite 600
                                      Bellatre, Texas 77401
                                      Tel, (713) 271-8282
                                      Fax. (713) 271-2122


                                      By:
                                      NED GILL, III
                                      Texas Bar No. 07921400
                                      Email: nedqil]3@qr$fecta[. com
                                      Attorney for Plaintiff s




                                                                                      16
 1                        REPORTER'S RECORD
 2                       VOLUME 1 OF 1   VOLUME
                                                    FILED IN
                                             14th COURT OF APPEALS
 3                       CAUSE NO. 2015-21720 HOUSTON, TEXAS
                                             9/11/2015 5:53:21 PM
 4           COURT OF   APPEALS CASE NO. 14-15-00747-CV
                                             CHRISTOPHER A. PRINE
                                                      Clerk
 5
     GREGORY PHAM, JOHN MA,        ) IN THE DISTRICT COURT
 6   and RAYMOND DAO,              )
                     Plaintiffs,   )
 7                                 )
     VS.                           ) HARRIS COUNTY, TEXAS
 8                                 )
     W GARRY WALDROP, DDS, INC.,   )
 9   DBA LIFETIME DENTAL CARE,     )
                    Defendant.     ) 151ST JUDICIAL DISTRICT
10

11

12

13               *********************************
14                        MOTION FOR DEFAULT
15               *********************************
16

17                   On the 29th day of     June , 2015, the
18   following proceedings came on to be heard in the
19   above-entitled and numbered cause before the Honorable
20   Mike Engelhart,    Judge Presiding, held in Houston,
21   Harris County, Texas.
22                   Proceedings reported by      Certified
23   Shorthand Reporter and Machine
24   Shorthand/Computer-Aided      Transcription.
25


           GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                  Carolyn Ruiz Coronado, CSR, RPR
                                                               2


 1                     A P P E A R A N C E S
 2
     Mr. Ned Gill, III
 3   State Bar No. 07921400
     nedgill3@grslegal.com
 4   GILL REVACK SAMAAN & MULLER, LLP
     6575 West Loop South, Suite 600
 5   Bellaire, Texas 77401
     Telephone: (713) 271-8282
 6   Telecopier: (713) 271-2112
     COUNSEL FOR THE PLAINTIFFS
 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                               3


 1                      VOLUME 1 OF 1 VOLUME
 2                       MOTION FOR DEFAULT
 3                       CHRONOLOGICAL   INDEX
 4   JUNE 29, 2015                               PAGE
 5   Appearances . . . . . . . . . . . . . . . . . 2

 6   Chronological Index . . . . . . . . . . . . . 3

 7   Alphabetical Witness Index . . . . . . . . . .4

 8   Proceedings . . . . . . . . . . . . . . . . . 5

 9   PLAINTIFFS' WITNESSES      DIRECT      CROSS

10   Pham, Gregory
         By Mr. Gill              6
11
     Ma, John
12       By Mr. Gill              9

13   Dao, Raymond
         By Mr. Gill             11
14
     Gill, III, Ned
15       By Mr. Gill             13

16   Plaintiffs Rest . . . . . . . . . . . . . . .14

17   Court's Findings . . . . . . . . . . . . . . 14

18   Adjourned . . . . . . . . . . . . . . . . . .16

19   Court Reporter's Certificate . . . . . . . . 17

20   Word Index . . . . . . . . . . . . . . . . . 18

21              (No exhibits)

22

23

24

25


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                               4


 1                        VOLUME 1 OF 1 VOLUME
 2                         MOTION FOR DEFAULT
 3                     ALPHABETICAL WITNESS INDEX
 4   WITNESSES                DIRECT        CROSS

 5   Dao, Raymond
         By Mr. Gill           11
 6
     Gill, III, Ned
 7       By Mr. Gill           13

 8   Ma, John
         By Mr. Gill            9
 9
     Pham, Gregory
10       By Mr. Gill            6

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                                     5


 1                     P R O C E E D I N G S

 2   06/29/2015      (At the bench, on the record)

 3                   THE COURT:    This is 2015-21720, Pham,
 4   P-H-A-M, versus    W Garry, with two R's, Waldrop,
 5   W-A-L-D-R-O-P , DDS, Inc.     We're here for what I'm
 6   guess ing is a prove-up of a final default judgment.
 7                   MR. GILL:    Yes, Judge.
 8                   THE COURT:    Final meaning it would
 9   resolve all the claims and all the parties.
10                   MR. GILL:    All the claims, controversies
11   and parties.
12                   THE COURT:    All right.   Nice and slow
13   and loud because Carolyn is taking down what you say.
14   Counsel, would you tell us     who you are and who you
15   represent .
16                   MR. GILL:    My name is Ned Gill , III .    I
17   represent the Plaintiffs in the case.      That's     Gregory
18   Pham, P-H-A-M ; John Ma, M-A ; and Raymond Dao, D -A-O.
19                   THE COURT:    All right.   And these are
20   the three gentlemen that are here today?
21                   MR. GILL:    That's correct, Judge.
22                   THE COURT:    All right.   I assume they're
23   gentlemen .    The Court should not assume such things .
24                   (Laughing)
25                   THE COURT:    All right.   Would you please


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                                      6


 1   raise your right hand so I can swear you in.           They're
 2   doing so.
 3                    (Oath administered to the witnesses)
 4                    THE COURT:     All right.    All three have
 5   answered in the affirmative .       Very good .    Mr. Gill.
 6                    MR. GILL:    Yes, sir.
 7                    THE COURT:     Who do you wish to call
 8   first?
 9                    MR. GILL:    I'm going to call Plaintiff
10   number one, Gregory Pham.
11                    THE COURT:     All right.    Mr. Pham, listen
12   carefully to the questions .       Only answer the question
13   that you are asked .     And please answer nice and loud
14   and slow so Carolyn can take down what you're saying.
15   Okay?
16                    THE WITNESS:    Okay.
17                    THE COURT:   Please proceed.
18                    MR. GILL:    Thank you, Judge.
19                           GREGOR Y PHAM ,

20   having been first duly sworn, testified as follows:

21                         DIRECT EXAMINATION

22   BY MR. GILL:
23           Q.   Mr. Pham, state your name       for the record    and
24   spell your last name .
25           A.   Gregory Pham , P as in Paul , H-A-M.


             GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                        06/29/2015 MOTION FOR DEFAULT
                       Carolyn Ruiz Coronado, CSR, RPR
                                                                  7


 1          Q.    And are you the Plaintiff in the case , in
 2   Cause N umber 2015 -21720 ?
 3          A.    Yes.
 4          Q.    And are you familiar with the    Defendant in
 5   the case?
 6          A.    Yes.
 7          Q.    And what is your relationship with the
 8   Defendant?
 9          A.    I was an employer -- employee with the
10   Waldrops .
11          Q.    And are you a licensed dentist?
12          A.    Yes.
13          Q.    Are you in good standing with the State of
14   Texas?
15          A.    Yes.
16          Q.    And did you have an agreement with the
17   Defendant in the case to provide a dental service to
18   him?
19          A.    His patient, yes.
20          Q.    And do you know the   terms of that agreement?
21          A.    It's 25 percent of production.
22          Q.    Okay.   Was that a written or verbal contract
23   with the Defendant?
24          A.    A written contract.
25          Q.    Okay.   And did he pay you all the amount


            GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                       06/29/2015 MOTION FOR DEFAULT
                      Carolyn Ruiz Coronado, CSR, RPR
                                                                    8


 1   that were due to you under that agreement?
 2        A.   No.
 3        Q.   And do you know the amount that he was
 4   insufficient in paying you?
 5        A.   Yes.
 6        Q.   And could you tell the        Court what that
 7   amount was?
 8        A.   It's $58,343.
 9        Q.   Are you asking this Court to grant you a
10   judgment in the amount of $58,343 against the
11   Defendant in this case?
12        A.   Yes.
13        Q.   And to pursue the judgment in this case , did
14   you have to hire an attorney?
15        A.   Yes.
16        Q.   Did you hire me to represent you in pursuing
17   this judgment?
18        A.   Yes.
19        Q.   And did you believe       it was necessary for you
20   to hire me to pursue this judgment?
21        A.   Yes.
22                    MR. GILL:    Judge , I'll pass this witness
23   and ask that I may call the next witness.
24                    THE COURT:    Okay .   Very good .   Sure .
25   Who do you wish to call next?


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                                            9


 1                          MR. GILL:     John Ma.
 2                          THE COURT:     All right.     Please change
 3   place s and please remember my instruction to speak
 4   loud and slow .
 5                                  JOHN MA,
 6   having been previously duly sworn, testified as
 7   follows:
 8                             DIRECT EXAMINATION
 9   BY   MR. GILL :
10        Q.          Mr. Ma, could you state your full name for
11   the court reporter and             spell your last name, please.
12            A.      Yes.    John Ma .    Last name is M-A.
13            Q.      Are you a Plaintiff in Cause N umber
14   2015-21720?
15            A.     Yes.
16            Q.      Do you know the Defendant in this case?
17            A.     Yes.
18            Q.      What is your relationship to the Defendant
19   in this case?
20            A.      He is my employer.
21                          THE COURT:     Slow down .    You're doing
22   fine .        I need you to slow down just a little.
23                          MR. GILL:     Sorry, Judge.
24            Q.      (By Mr. Gill )      What is your    relationship to
25   the Defendant in this case?


              GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                         06/29/2015 MOTION FOR DEFAULT
                        Carolyn Ruiz Coronado, CSR, RPR
                                                               10


 1        A.   He was my employer.
 2        Q.   And how were you so employed with the
 3   Defendant in this case?
 4        A.   I was an associate dentist at his practice.
 5        Q.   And did you have an agreement with the
 6   dentist in this case for you to get paid?
 7        A.   Yes.
 8        Q.   And do you know the terms of that agreement?
 9        A.   Yes .   It was 25 percent of any production
10   completed at the office.
11        Q.   Was that a written agreement?
12        A.   Yes.
13        Q.   And do you know the amount of money he
14   actually paid you and the amount of money he actually
15   should have paid you?
16        A.   Yes.
17        Q.   And what is the difference in that amount?
18        A.   $19,462.
19        Q.   Are you asking this Court to grant you a
20   judgment against the Defendant for $19,462?
21        A.   Yes.
22        Q.   To pursue that judgment , did you have to
23   hire an attorney in that case?
24        A.   Yes.
25        Q.   Did you hire me   to help you pursue this


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                                       11


 1   judgment?
 2         A.     Yes.
 3         Q.     Did you think       it was necessary for you to
 4   hire an attorney to pursue that judgment?
 5         A.     Yes.
 6                       MR. GILL:    Judge , at this time I will
 7   pass this witness and call another witness.
 8                       THE COURT:    Very good .   Who do you wish
 9   to call?
10                       MR. GILL:    Raymond Dao.
11                       THE COURT:    All right.    Mr. Dao, same
12   instruction , right?       Nice and loud.
13                             RAYMOND DAO,
14   having been previously duly sworn, testified as
15   follows:
16                          DIRECT EXAMINATION
17   BY   MR. GILL :

18         Q.     Mr. Dao , could you state your full name for
19   the court reporter,       spelling your last name, please.
20         A.     Raymond Dao, D -A-O.
21         Q.     Are you a Plaintiff in Cause Number
22   2015 -21720?
23         A.     Yes.
24         Q.     And are you familiar with the        Defendant in
25   this case?


           GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                      06/29/2015 MOTION FOR DEFAULT
                     Carolyn Ruiz Coronado, CSR, RPR
                                                               12


 1        A.   Yes.
 2        Q.   Did you -- tell the Court what your
 3   relationship with the Defendant was?
 4        A.   I was an associate dentist at his practice.
 5        Q.   And did you have an agreement with the
 6   Defendant on amount of money that he would     pay you as
 7   an associate dentist?
 8        A.   Yes.
 9        Q.   And was that agreement in writing?
10        A.   Yes.
11        Q.   And do you know the terms of that agreement?
12        A.   Yes.
13        Q.   And could you state briefly for the Court
14   what the terms was?
15        A.   25 percent of production.
16        Q.   Do you know the amount of production that
17   you incurred and the amount that he paid you?
18        A.   Yes.
19        Q.   And do you know the amount that he should
20   have paid you?
21        A.   Yeah.
22        Q.   Is there a difference?
23        A.   Yes.
24        Q.   And could you tell the Court the difference
25   in that amount?


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                                         13


 1           A.     $26,759.
 2           Q.     Are you asking the Court to grant you a
 3   judgment against Mr. Waldrop , the Defendant in this
 4   case , in the amount of $26,759?
 5           A.    Yes.
 6           Q.     Did you have to hire an attorney to pursue a
 7   judgment in th at case?
 8           A.    Yes.
 9           Q.     And did you hire me to pursue that judgment?
10           A.    Yes.
11           Q.     Do you believe     hiring me was necessary to
12   pursue that judgment?
13           A.    Yes.
14                        MR. GILL:    I have no other questions ,
15   Judge .      I would like to call myself for attorney 's
16   fees.
17                        THE COURT:    Okay.   Switch place s,
18   please .
19                           DIRECT EXAMINATION

20                        MR. GILL:    My name is Ned Gill , III.
21   I'm a licensed attorney in the state of Texas .              I've
22   been practicing for over 24 year s.           I practice in
23   Harris County,        Fort Bend County , Liberty County , other
24   counties .      I practice primarily civil laws, criminal
25   laws, and family law.


             GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                        06/29/2015 MOTION FOR DEFAULT
                       Carolyn Ruiz Coronado, CSR, RPR
                                                                      14


 1                     I have been hired by these three
 2   Plaintiffs in the case to pursue a judgment against
 3   the Defendant in this case .        I have been paid
 4   approximately      $8,000 to pursue five judgments in this
 5   case .     But these are three Plaintiffs in the case .
 6                     And for these three Plaintiffs in the
 7   case I anticipate that it was necessary for me to
 8   incur approximately      $1,600 for each of these
 9   particular Plaintiffs in the case .
10                     I believe the time I spent on this case
11   was necessary to get a judgment in this case and I
12   believe an award of attorney 's fees against the
13   Defendant in this case and in favor of the Plaintiffs
14   of $1,600 each is reasonable and necessary .
15                     THE COURT:    Okay .   Anything further ?
16                               PLAINTIFFS REST
17                     MR. GILL:    That's all, Judge .    We rest.
18                     THE COURT:    All right .    Very good .    Then
19   I will -- I find that the Defendant has -- let me
20   double -check something .
21                               COURT'S FINDINGS
22                     THE COURT:    All right .    I find that the
23   Defendant W Garry Waldrop, DDS, Inc.,          DBA Lifetime
24   Dental Care , has failed to appear despite having been
25   served with citation and process .


              GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                         06/29/2015 MOTION FOR DEFAULT
                        Carolyn Ruiz Coronado, CSR, RPR
                                                                    15


 1                     And I find in favor of the Plaintiffs in
 2   the amounts stated , including actual damages ,
 3   prejudgment interest , the attorney 's fees request ed by
 4   Mr. Gill , and all taxable costs of court , as well as
 5   postjudgment interest at the rate of 5 percent from
 6   the date after judgment until collected .
 7                     If you would make the change in this
 8   proposed judgment , take out the number for cost of
 9   court on each of the thre e Plaintiffs and just write
10   it as Number Four, all taxable costs of court , I would
11   appreciate that .      And the rest of the language looks
12   okay .
13                      On the postjudgment interest language ,
14   if you could make it clear that it's interest at the
15   rate of 5 percent per year on the total judgment .            It
16   doesn't say postjudgment interest .        Just include the
17   word "postjudgment " so that it's clear it starts
18   accruing --
19                     MR. GILL:    Got it, Judge.
20                     THE COURT:    -- after the judgment .
21                     And then you have the language in there
22   that it's final .      If you would make in the title of
23   the judgment if you would put the word "final " up here
24   as well .     Anytime you have a final -- I mean, every
25   judgment is either final or partial, right ?          So it is


              GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                         06/29/2015 MOTION FOR DEFAULT
                        Carolyn Ruiz Coronado, CSR, RPR
                                                                     16


 1   very helpful to the clerks if you make it clear up
 2   here which it is so they don't have to scour the
 3   judgment looking for that language.
 4                    So if it's interlocutory, mark it        as
 5   interlocutory .     If it's final , mark it final.
 6                    MR. GILL:     I will , Judge .   Do you want
 7   me to e-file that ?
 8                    THE COURT:     And if you would e-file
 9   that , that would be great .      That way I could
10   electronically     sign it.
11                    MR. GILL:     Perfect.   I will, Judge.
12                    THE COURT:     All right.   I'll make a
13   note.     Is there anything else?
14                    MR. GILL:     That's all, Judge.
15                    THE COURT:     All right.   Very good.
16   Congratulations, gentlemen.        Good luck to you.
17                    MR. GILL:     Thank you , Your Honor .
18                    THE COURT:     Now the hard part begins.
19                    (Laughing)
20                     (Recessed)
21

22

23

24

25


             GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                        06/29/2015 MOTION FOR DEFAULT
                       Carolyn Ruiz Coronado, CSR, RPR
                                                               17


 1   THE STATE OF TEXAS )

 2   COUNTY OF HARRIS )
 3        I, Carolyn Ruiz Coronado, Official Court Reporter
     in and for the 151st Civil District Court of Harris
 4   County, State of Texas, do hereby certify that the
     above and foregoing contains a true and correct
 5   transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the
 6   parties to be included in this volume of the
     Reporter's Record, in the above-styled and numbered
 7   cause, all of which occurred in open court or in
     chambers and were reported by me.
 8
          I further certify that this Reporter's Record of
 9   the proceedings truly and correctly reflects the
     exhibits, if any, admitted, tendered in an offer of
10   proof or offered into evidence.

11       I further certify that the total cost for the
     preparation of this Reporter's Record is $180.00 and
12   will be paid by Zimmerman, Axelrad, Meyer, Stern &
     Wise, P.C.
13

14        WITNESS MY OFFICIAL HAND this the     8th day of
15   September , 2015.
16            /s/Carolyn Ruiz Coronado
              Carolyn Ruiz Coronado, Texas CSR#7113
17            Expiration Date: 12/31/2016
              Official Reporter, 151st Civil District Court
18            Harris County, Texas
              201 Caroline, Houston, Tx 77002
19            (713) 398-3548
20

21

22

23

24

25


          GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                     06/29/2015 MOTION FOR DEFAULT
                    Carolyn Ruiz Coronado, CSR, RPR
                                                          18


 1                       WORD INDEX
 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


     GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
                06/29/2015 MOTION FOR DEFAULT
               Carolyn Ruiz Coronado, CSR, RPR
        - 0 -            6575 [1]    2:4      17;   12:6, 16,       because        [1]
                                              17,  19,   25;        5:13
                               - 7 -          13:4                  been   [7]   6:20;
07921400         [1]
                                              amounts    [1]        9:6;       11:14;
2:3
                         7113 [1]             15:2                  13:22;    14:1, 3,
                                     17:16
                                              another       [1]     24
        - 1 -            77002       [1]
                                              11:7                  before [1] 1:19
                         17:18
                                              answer        [2]     begins       [1]
                         77401 [1]     2:5
1,600 [2]  14:8,                              6:12, 13              16:18
14                                            answered       [1]    believe    [4]
14-15-00747-CV                 - 8 -
                                              6:5                   8:19;    13:11;
[1] 1:4                                       anticipate      [1]   14:10, 12
151ST [1] 1:9            8,000 [1]     14:4   14:7                  Bellaire   [1]
151st [2]  17:3,                              Anything       [1]    2:5
17                             - A -          14:15                 bench [1] 5:2
180.00    [1]                                 anything       [1]    Bend [1] 13:23
17:11                    above [1] 17:4       16:13                 briefly   [1]
19,462    [2]                                 Anytime       [1]     12:13
                         above-entitled
10:18, 20                                     15:24
                         [1] 1:19
                         above-styled         APPEALS        [1]           - C -
        - 2 -            [1] 17:6             1:4
                         accruing      [1]    appear      [1]       call [7]  6:7, 9;
2015    [4]      1:17;   15:18                14:24
                                                                    8:23, 25;   11:7,
3:4;            5:2;     actual [1] 15:2      Appearances
                                                                    9; 13:15
17:15                    actually     [2]     [1] 3:5               came [1] 1:18
2015-21720     [5]       10:14                appreciate [1]
                                                                    CARE [1] 1:9
1:3;  5:3;   7:2;        Adjourned      [1]   15:11                 Care [1] 14:24
9:14; 11:22              3:18                 approximately
                                                                    carefully    [1]
2016 [1] 17:17           administered         [2] 14:4, 8
                                                                    6:12
26,759     [2]           [1] 6:3              asked [1] 6:13
                                                                    Caroline       [1]
13:1, 4                  admitted      [1]    asking [3] 8:9;
                                                                    17:18
271-2112         [1]     17:9                 10:19; 13:2           Carolyn    [5]
2:6                      affirmative [1]      associate     [3]
                                                                    5:13;     6:14;
271-8282         [1]     6:5                  10:4; 12:4, 7
                                                                    17:3, 16
2:5                      after [2]    15:6,   assume      [2]       CASE [1] 1:4
29th [1]      1:17       20                   5:22, 23              case [24] 5:17;
                         against      [5]     attorney     [5]
                                                                    7:1,   5,   17;
        - 3 -            8:10;     10:20;     8:14;    10:23;
                                                                    8:11, 13;   9:16,
                         13:3; 14:2, 12       11:4; 13:6, 21
                                                                    19, 25;     10:3,
                         agreement      [9]   attorney's    [3]
398-3548         [1]                                                6, 23;    11:25;
                         7:16, 20;     8:1;   13:15;   14:12;
17:19                                                               13:4, 7;    14:2,
                         10:5,   8,    11;    15:3
                                                                    3, 5, 7, 9, 10,
                         12:5, 9, 11          award      [1]
        - 5 -                                                       11, 13
                         ALPHABETICAL         14:12                 CAUSE [1] 1:3
                         [1] 4:3              Axelrad      [1]      Cause [3]    7:2;
58,343 [2]        8:8,   Alphabetical         17:12
                                                                    9:13; 11:21
10                       [1] 3:7                                    cause [2] 1:19;
                         amount      [13]           - B -           17:7
        - 6 -            7:25;     8:3, 7,                          Certificate [1]
                         10;   10:13, 14,                           3:19
Certified      [1]   COUNSEL       [1]     Defendant     [19]   employed           [1]
1:22                 2:6                   1:9; 7:4, 8, 17,     10:2
certify       [3]    Counsel       [1]     23;       8:11;      employee           [1]
17:4, 8, 11          5:14                  9:16,   18,   25;    7:9
chambers       [1]   counsel       [1]     10:3,     20;        employer        [3]
17:7                 17:5                  11:24;   12:3, 6;    7:9;         9:20;
change        [2]    counties      [1]     13:3;   14:3, 13,    10:1
9:2; 15:7            13:24                 19, 23               Engelhart          [1]
CHRONOLOGIC          COUNTY        [2]     DENTAL [1] 1:9       1:20
AL [1] 3:3           1:7; 17:2             Dental      [1]      every [1]        15:24
Chronological        County       [6]      14:24                evidence          [2]
[1] 3:6              1:21;     13:23;      dental [1] 7:17      17:5, 10
citation    [1]      17:4, 18              dentist      [5]     EXAMINATION
14:25                COURT       [26]      7:11;   10:4, 6;     [4]  6:21;  9:8;
Civil [2]   17:3,    1:4, 5;   5:3, 8,     12:4, 7              11:16; 13:19
17                   12, 19, 22, 25;       despite      [1]     exhibits   [2]
civil [1] 13:24      6:4, 7, 11, 17;       14:24                3:21; 17:9
claims [2]    5:9,   8:24;   9:2, 21;      difference     [3]   Expiration [1]
10                   11:8,      11;        10:17;      12:22,   17:17
clear     [3]        13:17;      14:15,    24
15:14, 17; 16:1      18, 22;    15:20;     DIRECT       [6]              - F -
clerks [1] 16:1      16:8, 12, 15, 18      3:9; 4:4; 6:21;
collected    [1]     Court     [12]        9:8;     11:16;      failed           [1]
15:6                 3:19;      5:23;      13:19
                                                                14:24
completed     [1]    8:6, 9;    10:19;     DISTRICT      [2]    familiar   [2]
10:10                12:2,   13,    24;    1:5, 9
                                                                7:4; 11:24
Computer-Aide        13:2; 17:3, 17        District     [2]     family    [1]
d [1] 1:24           court [6]    9:11;    17:3, 17
                                                                13:25
Congratulation       11:19;   15:4, 9,     doesn't      [1]     favor    [2]
s [1] 16:16          10; 17:7              15:16
                                                                14:13; 15:1
contains     [1]     COURT'S       [1]     doing [2]     6:2;   fees [3] 13:16;
17:4                 14:21                 9:21
                                                                14:12; 15:3
contract       [2]   Court's      [1]      double-check
                                                                Final [1] 5:8
7:22, 24             3:17                  [1] 14:20            final [7]  5:6;
controversies        criminal      [1]     down [4]     5:13;
                                                                15:22,   23,   24,
[1] 5:10             13:24                 6:14; 9:21, 22
                                                                25; 16:5
Coronado    [3]      CROSS [2] 3:9;        duly [3]     6:20;   find [3]   14:19,
17:3, 16             4:4                   9:6; 11:14
                                                                22; 15:1
correct    [2]                                                  FINDINGS      [1]
5:21; 17:4                 - D -                 - E -          14:21
correctly   [1]                                                 Findings     [1]
17:9                 D-A-O [2]             e-file [2]
                                   5:18;               16:7,    3:17
cost [2]   15:8;
                     11:20                 8                    fine [1] 9:22
17:11                damages               each [3]             first [2]
                                 [1]                   14:8,                  6:8,
costs [2]  15:4,
                     15:2                  14; 15:9             20
10                   Date [1] 17:17        either               five [1] 14:4
                                                      [1]
could [7]   8:6;     date [1] 15:6         15:25                following    [1]
9:10;    11:18;      DEFAULT               electronically
                                 [3]                            1:18
12:13,    24;
                     1:14; 3:2; 4:2        [1] 16:10
15:14; 16:9          default [1] 5:6       else [1] 16:13
follows        [3]     guessing         [1]    included        [1]   JUDICIAL       [1]
6:20;          9:7;    5:6                     17:6                  1:9
11:15                                          including       [1]   JUNE [1]   3:4
foregoing       [1]            - H -           15:2                  June [1]   1:17
17:4                                           incur [1]      14:8
Fort [1]    13:23                              incurred        [1]          - K -
                       H-A-M [1] 6:25
Four  [1]   15:10                              12:17
                       HAND [1] 17:14
from  [1]   15:5                               INDEX [3]    3:3;
                       hand [1] 6:1                                  know [8]   7:20;
full [2]     9:10;                             4:3; 18:1
                       hard [1] 16:18                                8:3;     9:16;
11:18                                          Index [3]    3:6,
                       HARRIS       [2]                              10:8,    13;
further      [3]                               7, 20
                       1:7; 17:2                                     12:11, 16, 19
14:15;    17:8                                 instruction [2]
                       Harris     [4]
                                               9:3; 11:12
                       1:21;     13:23;                                     - L -
       - G -                                   insufficient [1]
                       17:3, 18
                       having                  8:4
                                   [4]                               language
                                               interest    [5]                    [4]
GARRY [1]       1:8    6:20;      9:6;
                                               15:3, 5, 13, 14,      15:11, 13, 21;
Garry [2]       5:4;   11:14; 14:24
                                               16                    16:3
14:23                  heard [1] 1:18
                                               interlocutory         Last [1] 9:12
gentlemen      [3]     held [1] 1:20
                                               [2] 16:4, 5           last [3]   6:24;
5:20, 23; 16:16        help [1] 10:25
                                               into [1] 17:10        9:11; 11:19
GILL [24]     2:4;     helpful     [1]
                                               It's [2]  7:21;       Laughing     [2]
5:7, 10, 16, 21;       16:1
                                               8:8                   5:24; 16:19
6:6, 9, 18, 22;        here [4]      5:5,
                                               it's [5]  15:14,      laws [2] 13:24,
8:22;    9:1, 9,       20;      15:23;
                                               17, 22; 16:4, 5       25
23;    11:6, 10,       16:2                                          Liberty    [1]
17;   13:14, 20;       hereby      [1]
                                                                     13:23
14:17;    15:19;       17:4                           - J -
                                                                     licensed     [2]
16:6, 11, 14, 17       hire [8]     8:14,
                                                                     7:11; 13:21
Gill [16]     2:2;     16, 20;    10:23,       JOHN   [2]    1:5;    LIFETIME      [1]
3:10,   12,     13,    25;       11:4;         9:5
                                                                     1:9
14, 15;   4:5, 6,      13:6, 9                 John [5]     3:11;    Lifetime    [1]
7, 8, 10;   5:16;      hired [1] 14:1          4:8; 5:18; 9:1,
                                                                     14:23
6:5;      9:24;        hiring     [1]          12                    like [1] 13:15
13:20; 15:4            13:11                   Judge      [13]       listen [1] 6:11
going [1] 6:9          Honor      [1]          1:20;   5:7, 21;      little [1] 9:22
Good [1] 16:16         16:17                   6:18;      8:22;      looking     [1]
good [6]      6:5;     Honorable      [1]      9:23;      11:6;
                                                                     16:3
7:13;      8:24;       1:19                    13:15;     14:17;     looks [1] 15:11
11:8;     14:18;       Houston      [2]        15:19;       16:6,    Loop [1] 2:4
16:15                  1:20; 17:18             11, 14                loud [4]   5:13;
grant [3]     8:9;                             judgment     [22]
                                                                     6:13;      9:4;
10:19; 13:2                    - I -           5:6;   8:10, 13,
                                                                     11:12
great [1] 16:9                                 17, 20;     10:20,    luck [1] 16:16
GREGORY       [2]                              22;    11:1, 4;
                       I'll [2]        8:22;
1:5; 6:19                                      13:3, 7, 9, 12;
                       16:12                                                - M -
Gregory      [5]                               14:2, 11;    15:6,
                       I've [1]   13:21
3:10;       4:9;       include                 8, 15, 20, 23,
                                    [1]                              Machine
5:17; 6:10, 25                                 25; 16:3                             [1]
                       15:16
grslegal.com                                   judgments      [1]    1:23
[1] 2:3                                        14:4
make    [5]      15:7,   Oath [1] 6:3         Perfect      [1]      proceedings [3]
14,    22;       16:1,   occurred     [1]     16:11                 1:18; 17:5, 9
12                       17:7                 PHAM    [2]    1:5;   process     [1]
mark    [2]      16:4,   offer [1] 17:9       6:19                  14:25
5                        offered     [1]      Pham [8]      3:10;   production [4]
mean [1]        15:24    17:10                4:9;    5:3, 18;      7:21;     10:9;
meaning          [1]     office     [1]       6:10, 11, 23, 25      12:15, 16
5:8                      10:10                places [2]     9:3;   proof [1] 17:10
Meyer           [1]      OFFICIAL     [1]     13:17                 proposed     [1]
17:12                    17:14                Plaintiff     [4]     15:8
Mike [1]  1:20           Official    [2]      6:9; 7:1; 9:13;       prove-up     [1]
money      [3]           17:3, 17             11:21                 5:6
10:13, 14; 12:6          Okay [7]    6:15,    PLAINTIFFS [3]        provide     [1]
MOTION      [3]          16;    7:22, 25;     2:6;         3:9;     7:17
1:14; 3:2; 4:2           8:24;     13:17;     14:16                 pursue     [10]
MULLER      [1]          14:15                Plaintiffs [10]       8:13,     20;
2:4                      okay [1] 15:12       1:6;        3:16;     10:22,    25;
myself     [1]           Only [1] 6:12        5:17;    14:2, 5,     11:4;   13:6, 9,
13:15                    open [1] 17:7        6, 9, 13;     15:1,   12; 14:2, 4
                         other      [3]       9                     pursuing     [1]
        - N -            13:14, 23; 17:5      Please       [2]      8:16
                         over [1] 13:22       6:17; 9:2
                                              please       [6]              - Q -
name [9]   5:16;
                               - P -          5:25;       6:13;
6:23, 24;  9:10,
                                              9:3, 11;    11:19;    question
11, 12;   11:18,                                                                    [1]
                         P-H-A-M              13:18
19; 13:20                              [2]                          6:12
                                              portions      [1]
necessary   [6]          5:4, 18                                    questions        [2]
                         P.C. [1] 17:12       17:5
8:19;         11:3;                                                 6:12;    13:14
                                              postjudgment
13:11;         14:7,     PAGE [1] 3:4
                         paid [7]             [4]    15:5, 13,
11, 14                                10:6,                                 - R -
nedgill3                                      16, 17
                 [1]     14, 15;    12:17,
                                              practice      [4]
2:3                      20;      14:3;                             raise [1] 6:1
need [1] 9:22                                 10:4;       12:4;
                         17:12                                      rate [2]
                                              13:22, 24                          15:5,
next [2]   8:23,         part [1] 16:18
                                              practicing      [1]   15
25                       partial     [1]
                                              13:22                 RAYMOND       [2]
Nice [2]   5:12;         15:25
                                              prejudgment           1:6; 11:13
11:12                    particular    [1]
                                              [1] 15:3              Raymond      [5]
nice [1] 6:13            14:9
                                              preparation [1]       3:13;      4:5;
note [1] 16:13           parties     [3]
                                              17:11                 5:18; 11:10, 20
Number     [4]           5:9, 11; 17:6
                                              Presiding      [1]    reasonable [1]
7:2;     9:13;           pass [2]    8:22;
                                              1:20                  14:14
11:21; 15:10             11:7                                       Recessed
                                              previously [2]                      [1]
number     [2]           patient     [1]
                                              9:6; 11:14            16:20
6:10; 15:8               7:19                                       RECORD
                                              primarily      [1]                 [1]
numbered    [2]          Paul [1] 6:25
                                              13:24                 1:1
1:19; 17:6               paying [1] 8:4
                                              proceed       [1]     Record      [3]
                         percent      [5]
                                              6:17                  17:6, 8, 11
        - O -            7:21;     10:9;                            record [2]
                                              Proceedings                         5:2;
                         12:15; 15:5, 15
                                              [2] 1:22; 3:8         6:23
reflects        [1]   service        [1]     taxable      [2]       three [6]  5:20;
17:9                  7:17                   15:4, 10               6:4; 14:1, 5, 6;
relationship [4]      Shorthand       [2]    Telecopier     [1]     15:9
7:7;    9:18, 24;     1:23, 24               2:6                    time [2]   11:6;
12:3                  should        [3]      Telephone      [1]     14:10
remember       [1]    5:23;        10:15;    2:5                    title [1] 15:22
9:3                   12:19                  tell [4]  5:14;        today [1] 5:20
reported      [2]     sign [1] 16:10         8:6; 12:2, 24          total [2] 15:15;
1:22; 17:7            Slow [1] 9:21          tendered   [1]         17:11
Reporter      [3]     slow [4]    5:12;      17:9                   Transcription
1:23; 17:3, 17        6:14; 9:4, 22          terms [4] 7:20;        [1] 1:24
reporter     [2]      something      [1]     10:8; 12:11, 14        transcription
9:11; 11:19           14:20                  testified     [3]      [1] 17:5
REPORTER'S            Sorry [1] 9:23         6:20;       9:6;       true [1] 17:4
[1] 1:1               South [1] 2:4          11:14                  truly [1] 17:9
Reporter's [4]        speak [1] 9:3          TEXAS [2]      1:7;
3:19;    17:6, 8,     spell [2]   6:24;      17:1                        - U -
11                    9:11                   Texas [7] 1:21;
represent      [3]    spelling     [1]       2:5;      7:14;        under [1] 8:1
5:15, 17; 8:16        11:19                  13:21;        17:4,    until [1] 15:6
requested      [2]    spent      [1]         16, 18
15:3; 17:5            14:10                  Thank      [2]
                                                                         - V -
resolve [1] 5:9       standing     [1]       6:18; 16:17
REST [1] 14:16        7:13                   That's      [4]
Rest [1] 3:16         starts     [1]         5:17,     21;          verbal [1] 7:22
rest [2]    14:17;    15:17                  14:17; 16:14           versus [1]  5:4
15:11                 STATE [1] 17:1         Then [1] 14:18         Very [5]   6:5;
REVACK       [1]      State [3]     2:3;     then [1] 15:21         8:24;    11:8;
2:4                   7:13; 17:4             there      [3]         14:18; 16:15
right      [15]       state [5]   6:23;      12:22;    15:21;       very [1] 16:1
5:12,    19,    22,   9:10;     11:18;       16:13                  VOLUME     [6]
25;   6:1, 4, 11;     12:13; 13:21           these [5] 5:19;        1:2; 3:1; 4:1
9:2;   11:11, 12;     stated [1] 15:2        14:1, 5, 6, 8          volume    [1]
14:18,      22;       Stern [1] 17:12        they [1] 16:2          17:6
15:25;      16:12,    such [1] 5:23          They're [1] 6:1
15                    Suite [1] 2:4          they're      [1]            - W -
Ruiz [3]     17:3,    Sure [1] 8:24          5:22
16                    swear [1] 6:1          things [1] 5:23        W-A-L-D-R-O-P
                      Switch      [1]        think [1] 11:3         [1] 5:5
        - S -         13:17                  This [1] 5:3           WALDROP     [1]
                      sworn      [3]         this [27]      8:9,    1:8
SAMAAN                6:20;       9:6;       11, 13, 17, 20,        Waldrop    [3]
           [1]
                      11:14                  22;    9:16, 19,       5:4;     13:3;
2:4
same [1] 11:11                               25;     10:3,     6,   14:23
saying [1] 6:14              - T -           19, 25;       11:6,    Waldrops    [1]
scour [1] 16:2                               7, 25;      13:3;      7:10
September [1]         take                   14:3, 4, 10, 11,       want [1] 16:6
                             [2]     6:14;
                                             13;       15:7;        We're [1] 5:5
17:15                 15:8
served                taking [1]             17:6, 8, 11, 14        well [2]   15:4,
                [1]                  5:13
14:25                                                               24
were  [3]  8:1;
10:2; 17:7                   - Z -
West [1] 2:4
which [2] 16:2;
                     Zimmerman       [1]
17:7
                     17:12
will [5]    11:6;
14:19;       16:6,
11; 17:12
Wise [1] 17:12
wish [3]      6:7;
8:25; 11:8
WITNESS       [3]
4:3;      6:16;
17:14
Witness      [1]
3:7
witness      [4]
8:22, 23; 11:7
WITNESSES [2]
3:9; 4:4
witnesses      [1]
6:3
WORD [1] 18:1
Word [1] 3:20
word       [2]
15:17, 23
Would [1] 5:25
would [10] 5:8,
14;       12:6;
13:15;       15:7,
10,   22,    23;
16:8, 9
write [1] 15:9
writing     [2]
12:9; 17:5
written     [3]
7:22, 24; 10:11


       - Y -


year [1] 15:15
years [1] 13:22
You're [1] 9:21
you're [1] 6:14
Your [1] 16:17
your [11]   6:1,
23, 24;     7:7;
9:10,   11,   18,
24;   11:18, 19;
12:2
Office of Harris County District Clerk Chris Daniel    -                                                                                             Page 1 of 3




 HCDistrictclerk.com                   PHAM, GREGORY vs. W GARRY WALDROP DDS INC                                                          11/10/2015
                                       (D/B/A LIFETIME DENTAL CAR
                                       Cause: 201 521720  CDI: 7  Court: 1 5 1

 COST STATMENTS
 No Cost Statments found.

 TRANSFERS
 No Transfers found.

 NOTICES
 No Notices found.

 SUMMARY
 CASE DETAILS                                                                  COURT DETAILS
  Kile Date                   4/15/2015                                        Court               up'

  Case (Cause) Location       Civil Intake 1st Floor                           Address            201 CAROLINE (Floor. 1 1)
                                                                                                  HOUSTON. TX 77002
  Case (Cause) Status                           -
                              Case On Appeal Civil
                                                                               w*                 Phone; 7133686222
  Case (Cause) Type           HOMEOWNERS ASSOCIATION                                              untPM»Hf«T
  N.\,/lÿist Selling   Date   NA
                                                                               Cr. T».             CM   '
  Judgment For                DEFAULT JUDGMENT SIGNED                               ''vr--   •
                                                                                                 "• ' '
                                                                                                   ••




  Judgment Date               7/1/2015
  Jury Fee Paid Date          N/A



 APPEALS
 Action Type*                                         Action
 Court Assignment                                     Assigned to 14th Court of Appeals                               9/1/2015            $0.00
                                                                                                                      9/1/2015            $0.00
                                            A,;/;;'
 Notice of Appeal Has Been Filed                      Notice of Appeal Given                                          9/1/2015            S 0,00
                                                      McMMonWv..                                             .A.-..

 Notice of Appeal Has Been Filed                      Appeal Final Judgment                                           9/1/20)5            $0,00
 Mandate Issued on Appeal
 Transcript Action
 .
                         ----                         Transcript Completed
                                                                                                                      9/22/201 5
                                                                                                                       00«»Av«W<yÿM*lÿ
                                                                                                                      9/30/2015
                                                                                                                                         S 0.00
                                                                                                                                          $37.00



 POST TRIAL WRITS
 Description
 Writ of Execution                                                                  8/3/2015      8/3/2015            8/10/2015          11/9/2015


 ABSTRACTS
 Description                                                                                                                                         i
 File Assigned                                                                                                                       7/2/2015


                                                                                                                                                                   m
                                                                                                                                                     8
http://www.hcdistrictcIerk.com/edocs/public/CaseDetailsPrinting.aspx?Get=80-i-VR0ti6Iqkyr5Io7h9A5...                                                 I i/10/2015
Office of Harris County District Clerk - Chris Daniel                                                                                                                                                                       Page 2 of 3


 Abstract Requested                                                                                                                                                                                        7/2/20 1 5
 File Assigned                                                                                                                                                                                             7/2/2015
 Abstract Requested                                                                                                                                                                                        7/2/2015
 File Assigned
 •   '•

          -------
          --•



 Abstract Requested
                      "•f •
                               •'•••                                                                           "> '/S-Ov.


                                                                                                                                    "•vz/y/'ÿ/WZ/Wr/W'/' •v/y   f/jvo
                                                                                                                                                                                                           7/2/20 IS
                                                                                                                                                                                                           7/2/2015
 Abstract Picked UO                                                                                                                                                                                        7/29/2015
                                                                                                               vV                                       yrffWW/Wi'/’W'«'.('.



 Abstract Picked UO                                                                                                                                                                                        7/29/2015         '
                                                                                                                                                                    •   . ,v/>s\'A\v.w.'



 Abstract Picked UO                                                                                                                                                                                        7/29/2015
                 y.yO.t::*‘y<J. Y                                           ........
                                                                                 .   •
                                                                                     "      •ÿ•.-.•.y.W.'           W-      •   .


 ACTIVE PARTIES
 No active parties found.

 INACTIVE PARTIES
 Name        Type                                                                                                                                                                          Post    Attorney
                                                                                                                                                                                           Jdgm
 PHAM, GREGORY                            PLAINTIFF - CIVIL                                           •>.
                                                                                                                                                                                                  Gll.L, NED 111
                                                      VAWSrMyV*                          r.-s.ss.yy.rs.r/sv.                                                                                                   .••>.   -

 W GAR.RY                                 DEFENDANT -CIVIL
 WALDROP DDS INC
 (D/B/A         LIFETIME
 DENTAL, CARE)

           970 SOUTH FRY ROAD, KATY, TX 77450
                                                  ....     ....
 DAO, RAYMOND                             PLAINTIFF - CIVIL                                                                                                                                       GJ.CL» NED III
 MA. JOHN                                 PLAINTIFF -CIVIL                                                                                                                                        GILL, NED IU
                                                                                                                                                                                                     .r.W.,AWy,r.y,,   .,



 JHDGMENT/EVENTS
 Date  Description                                                                                          Order                       Post Pgs Volume Filing                                    Person
                                                                                                            Signed                      Jdgm     /Page Attorney                                   Filing
 7/1/2015
 7/1/2015
                        DEFAULT JUDGMENT SIGNED
                         /.v.-.v.v.v.vv.x'r«vcw rrrrrrrr


                         DEFENDANT COSTS
                                                           •r'r‘rr/r       **«*»ÿ»
                                                                                                            7/1/2015
                                                                                                                                                 m
                                                                                                                                                 0
 4/15/2015              ORIGINAL PETITION                                                                                                        0                      GILL, NED III             PHAM, GREGORY
 4/15/2015              ORJGINAI PETITION                                                                                                        0                      GILL, NED Ilf             DAO, RAYMOND
 4/15/2015              ORIGINAL PETITION                                                                                                        0                      GILL., NED III            MA, JOHN
                                                                       -     -



 SETTINGS
 Date                      Court Post Docket Type                                                      Reason                                               Results Comments                       Requesting
                                                                                                                                                                                                                                          I
                                 Jdgm                                                                                                                                                              Party                                  I
 6/29/2015                  151                        Law Day Docket                                  DEFAULT MOTION FOR Granted   -                                          SEE O/S 7-1-15      GILL, NED III
 09:00 AM                                                                                              (TRCP 239)
           wwlv/w/'y y.Lv.- w-kvwjl/M'y




 SERVICES
 Type   Status                                               Instrument Person Requested Issued Served Returned Received Tracking Deliver
                                                                                                                                  To
 CITATION                                                                                                           4/15/2015                    4/15/2015 4/21/2015                                73121918



                                                                                                                                                                                                                            9
http://wvw.hcdistriciclerk.com/edocs/public/CaseDelailsPrinting.aspx7Get~8CH-VR0ti6Iqkyr51o7h9A5...                                                                                                                         1 1/10/2015
Office of Harris County District Clerk - Chris Daniel                                                                                                                                               Page 3 of 3


                             SERVICE         ORIGINAL                                                                                                                                        CIV AGCY-
                             RETURN/EXECUTED PETITION                                                                                                                                        C1VILIAN
                                                                                                                                                                                             SERVICE
                                                                                                                                                                                             AGENCY
                                                                                                          s>'                             s      ••           > ••   ••
  EXECUTION SERVICE                          WRIT OF                                              8/3/20 IS     8/10/2015 1 1/9/201S 11/9/2015   *                        73155065           ATTORNEY
                             RETURN/EXECUTED EXECUTION                                                                                                                                       PICK-UP


  DOCUMENTS
 Number                                   Document                                                                                                    MPbst Date                  fill        Pgs
                                                                                                                                              W?ww:                                  i
 67280496                                 Fourteenth court of appeals (Abatement Order)                                                                              09/22/2015               7
 pMMM
 66997309                                 Fourteenth court of appeals (Correspondence)                                                                               09/04/2015               I
 66862676                                 Notice of Appeal                                                                                                           09/01/2015               2
    >66862677                             Local Rule Notice of and Assignment of Related Case in Appeals                                                             09/01/2015               I
 66862678                                 Letter to Clerk                                                                                                            09/01/2015               2
 66862679                                 Letter to Reporter                                                                                                         09/01/2015               r
 66457457                                 Request for Civil/Family Post Judgment Writs                                                                               08/03/2015               I
 66075484                                 Request for Abstract of Judgment                                                                                           07/02/2015               J
 ‘&¥S&t5$lF?f999XXttXXX‘/rAY/‘y/'?'‘‘i

 66075485                                 Request for Abstract of Judgrat8»\,                                                                                        07/02/2015               1
             '/‘».VPP.V.v



 66075486                                 Request for Abstract of Judgment                                                                                           07/02/2015               $

 66049904                                DEFAULT JUDGMEN T SIGNED                                                                                                    07/01/2015               2
                                         DEFENDANT COSTS                                                                                                             Q7/0I/2015
               ty£ÿ//AttYY//YrXfoiXXrXryXX/5i‘rt:r‘X‘ft‘rirYrY/iS'f‘r‘i

 66009060                                 Proposed Final Judgment                                                                                                    06/29/2015              2
 65485098                                 Motion for Default Judgment                                                                                                05/19/2015#
                                                                                                                                                      »0d6i




                                                                            _ _ _ _ _ _________
   •s 65485099                           Nonmilitary Affidavit                                                                                                       05/19/2015              3



                                                                                            ________
    >65485100                            PlaintifTs’ Certificate of Last Known Mailing Address                                                                       05/19/2015              1


                                                                                       _
                      WMmSS9SWQttoM&0Witftmt9i64&i4iMSWG$fC4M<&

 65485871
 65141847
                                       Notice of Hearing
                                       .....  ,


                                         Citation          --  ,•;•


                                                                      ..ÿ
                                                                            •   •




                                                                                    . . ...                                  .......
                                                                                                                                _                :
                                                                                                                                  04/21/2015 ... _...,
                                                                                                                                                                     05/19/2015
                                                                                                                                                                                  ...
                                                                                                                                                                                              1

                                                                                                                                                                                                    .

 65034468                                Plaintiffs Original Peilition                                                                                               04/15/2015              6
    >65034470                            Civil Case Information Sheet :                       v                                                                      04/15/2015              2
    >65034469                            Civil Process Request                                                                                                       04/15/2015              2
 65G4I353                                Civil Process Request                                                                                                       04/15/2015              2
 65176921                                Civil Process Pick-Up Form                                                                                                  04/15/2015          .    I.


                                                                                                                                                                                                                  !
                                                                                                                                                                                                                  !




                                                                                                                                                                                                                  I




                                                                                                                                                                                                   10
http://www.hcdistrictclerk.com/edocs/public/CaseDetailsPrinting.aspx?Get=80+VR0ti6Iqkyr5Io7h9A5...                                                                                                  1 1/10/2015
                                                                                                          9j"t.'2015 5:01 31 PM
                                                                                      Cims Daniel - Distnci Clerk Harris County
                                                                                                         Envolopo No. 6753 1 10
                                                                                                         By: Phyllis Washington
                                                                                                    filed: 9.'1.'201 5 5:01 31 PM

                                          NO. 2015-21720

GREGORY HIAM, JOHN MA                                      §     IN THE DISTRICT COURT OF
AND RAYMOND DAO                                            S
                                                           $
V.                                                         §     HARRIS COUNTY, TEXAS
                                                           §
W, GARRY     WALDROP, UDS, INC.                            §
(l/ti/a LIFETIME DENTAL        CARE                        §     151ST JUDICIAL DISTRICT


                                      NOTICE OF APPEAL


       Pursuant   to   Texas Rules of Appellate Procedure 25.1 and 26.1(c). W. Garry Waldrop.

DDS. Inc. d/b/a Lifetime Denial Care (“Defendant" or “Appellant'’) files this nolice of appeal lo

ihe First or Fourteenth Couri of Appeals,             Defendant desires   to   appeal from the judgment

rendered against ll by (his court on luly 1, 2015.

       Appellant is a party affected by the trial court’s judgment. Appellant did not participate,

either in person or through counsel, in the hearing resulting in the judgment complained of. In

addition. Appellant did not timely file   a   postjudgmenf motion, a request for findings of fact and

conclusions of law or a Rule 26.1(a) notice of appeal.

                                              Respectfully submitted,


                                               By;.      A/ Jennifer S. Wilson _
                                                       Jennifer S. Wilson
                                                       Slate Bar No. 21697500
                                                       3040 Post Oak Blvd., Suite 1300
                                                       Houston, Texas 77056
                                                       Telephone: (713) 212-2674 (Direct)
                                                       Telephone: (713) 552-1234 (Main)
                                                       Facsimile: (713) 212-2790 (Direct Facsimile)




                                                       1

                                                                                                         23
                              CERTIFICATE OF SERVICE

       I hereby certify that on September 1, 2015, a copy of this Notice of Appeal has been
served on counsel for Plaintiffs as follows:

Mr. Ned Gill, III                         Via Certified MailNo. 9314 8699 0430 0016 2073 74
Gill, Revack, Samaan & Muller, LLP
6575 West Loop South, Suite 600
Bellaite, Texas 77401


                                                   /s/ Jennifer S. Wilson
                                                Jennifer S. Wilson




                                            2

                                                                                       24
                                                                   9/1/2015 5:01:31 PM
                                                                               -
                                                                   Chris Daniel District Clerk
                                                                   Harris County
                                                                   Envelope No: 6753110
                                                                   By: WASHINGTON, PHYLLIS
                                                                   Filed: 9/1/2015 5:01:31 PM

   Local Rule Notice of and Assignment of Related Case in Appeals
                (sample; file as part of notice of appeal]

     As required by the Local Rules Relating to Assignment of Related
Cases to and Transfers of Related Cases between the First and Fourteenth
Courts of Appeals, I certify that the following related appeal or original
proceeding has been previously filed in either the First or Fourteenth Court of                      ;
Appeals:

            None                                                                                     =
      W

            Caption:

            Trial court
            case number:

            Appellate court
            case number:


                                                                                                 i




                              [S i gna ture o f cerHfying attorney or pro se party]



                                Qg-P                   V   SL O \ 'ST
                              [Date]
                                                                                                 ;


Note: See Local Rules for the definitions of ‘underlying case,” ‘‘related,” and                  :
"previously filed.”                                                                              i


                                                                                                 i


                                                                                                 i

                                                                                                 :


                                                                                      25         :
Page 30                                                                                 TEXAS RULES OF APPELLATE PROCEDURE


      Comment to 2002 change: Rule 29.5 is amended to                       31.2. Hearing
acknowledge that a trial court may be prohibited by law from
proceeding to trial during the pendency of an interlocutory                        An appeal in a habeas corpus or bail proceeding will be
appeal, as for example by section 51.014(b) of the Texas Civil              heard at the earliest practicable time. The applicant need not
Practice and Remedies Code.                                                 personally appear, and the appeal will be heard and determined
                                                                            upon the law and the facts shown by the record. The appellate
        Comment to 2008 change: Rule 29.5 is amended to be                  court will not review any incidental question that might have
consistent with Section 51.014(b) of the Civil Practice and                 arisen on the hearing of the application before the trial court. The
Remedies Code, as amended in 2003, staying all proceedings in               sole purpose of the appeal is to do substantial justice to the
the trial court pending resolution of interlocutory appeals of class        parties.
certification orders, denials of summary judgments based on
assertions of immunity by governmental officers or employees,               31.3. Orders on Appeal
and orders granting or denying a governmental unit’s plea to the
jurisdiction.                                                                      The appellate court will render whatever judgment and
                                                                            make whatever orders the law and the nature of the case require.
                                                                            The court may make an appropriate order relating to costs,
          Rule 30. Restricted Appeals to Court                              whether allowing costs and fixing the amount, or allowing no
                of Appeals in Civil Cases                                   costs.

        A party who did not participate—either in person or                 31.4. Stay of Mandate
through counsel—in the hearing that resulted in the judgment
complained of and who did not timely file a postjudgment                          (a)    When Motion for Stay Required. Despite Rule 18 or
motion or request for findings of fact and conclusions of law, or                        any other of these rules, in the following
a notice of appeal within the time permitted by Rule 26.1(a), may                        circumstances a party who in good faith intends to
file a notice of appeal within the time permitted by Rule 26.1(c).                       seek discretionary review must — within 15 days
Restricted appeals replace writ of error appeals to the court of                         after the court of appeals renders judgment — file
appeals. Statutes pertaining to writ of error appeals to the court                       with the court of appeals clerk a motion for stay of
of appeals apply equally to restricted appeals.                                          mandate, to which is appended the party's petition
                                                                                         for discretionary review showing reasons why the
                     Notes and Comments                                                  Court of Criminal Appeals should review the
                                                                                         appellate court judgment:
       Comment to 1997 change: This is former Rule 45. The
appeal by writ of error procedure is repealed. A procedure for an                        (1)   when a court of appeals affirms the judgment
appeal filed within 6 months — called a restricted appeal — is                                 of the trial court in an extradition matter and
substituted. This rule sets out who may take a restricted appeal.                              thereby sanctions a defendant's extradition; or
Rules 25.1 and 26.1 set out the method of perfection and the time
for perfecting the appeal.                                                               (2)   when a court of appeals reverses the trial
                                                                                               court’s judgment in a bail matter — including
                                                                                               bail pending appeal under Code of Criminal
          Rule 31. Appeals in Habeas Corpus,                                                   Procedure article 44.04(g) — and thereby
           Bail, and Extradition Proceedings                                                   grants or reduces the amount of bail.
                   in Criminal Cases
                                                                                  (b)    Determination of the Motion. The clerk must
                                                                                         promptly submit the motion and appendix to the
31.1. Filing the Record; Submission
                                                                                         court of appeals, or to one or more judges as the
                                                                                         court deems appropriate, for immediate
        When written notice of appeal from a judgment or order in
                                                                                         consideration and determination.
a habeas corpus or bail proceeding is filed, the trial court clerk
must prepare and certify the clerk’s record and, if the appellant
                                                                                         (1)   If the motion for stay is granted, the clerk will
requests, the court reporter must prepare and certify a reporter’s
                                                                                               file the petition for discretionary review and
record. The clerk must send the clerk’s record and the court
                                                                                               process the case in accordance with Rule 68.7.
reporter must send the reporter’s record to the appellate court
within 15 days after the notice of appeal is filed. On reasonable
                                                                                         (2)   If the motion is denied, the clerk will issue a
explanation, the appellate court may shorten or extend the time
                                                                                               mandate in accordance with the court of
to file the record. When the appellate court receives the record,
                                                                                               appeals' judgment.
the court will — if it desires briefs — set the time for filing
briefs, and will set the appeal for submission.


                                                                       30
      Page 26                                                                                  TEXAS RULES OF APPELLATE PROCEDURE


                  Rule 34.5(c)(2). The appeal must be dismissed if a               or nolo contendere, and received a punishment that did not
                  certification that shows the defendant has the right of          exceed what the defendant agreed to in a plea bargain, the rule is
                  appeal has not been made part of the record under                amended to make clear that regardless of when the alleged error
                  these rules.                                                     occurred, an appeal must be based on a jurisdictional defect or a
                                                                                   written motion ruled on before trial, or be with the permission of
            (e)   Clerk's Duties. The trial court clerk must note on the           the trial court.
                  copies of the notice of appeal and the trial court’s
                  certification of the defendant’s right of appeal the                    Comment to 2002 change: Rule 25.2, for criminal cases,
                  case number and the date when each was filed. The                is amended. Subdivision 25.2(a) states the parties’ rights of
                  clerk must then immediately send one copy of each                appeal that are established by Code of Criminal Procedure article
                  to the clerk of the appropriate court of appeals and,            44.01 and by article 44.02, the proviso of which was repealed
                  if the defendant is the appellant, one copy of each to           when rulemaking power was given to the Court of Criminal
                  the State's attorney.                                            Appeals. Subdivision 25.2(b) is given the requirement that a
                                                                                   notice of appeal be in “sufficient” form, which codifies the
            (f)   Amending the Notice or Certification. An amended                 decisional law. The requirement in former subdivision
                  notice of appeal or trial court’s certification of the           25.2(b)(3) that a plea-bargaining appellant’s notice of appeal
                  defendant’s right of appeal correcting a defect or               specify the right of appeal is replaced by a requirement in
                  omission in an earlier filed notice or certification,            subdivision 25.2(d) that the trial court certify the defendant’s
                  including a defect in the notification of the                    right of appeal in every case in which a judgment or other
                  defendant’s appellate rights, may be filed in the                appealable order is entered. The certificate should be signed at
                  appellate court in accordance with Rule 37.1, or at              the time the judgment or other appealable order is pronounced.
                  any time before the appealing party's brief is filed if          The form of certification of the defendant’s right of appeal is
                  the court of appeals has not used Rule 37.1. The                 provided in an appendix to these rules. If the record does not
                  amended notice or certification is subject to being              include the trial court’s certification that the defendant has the
                  struck for cause on the motion of any party affected             right of appeal, the appeal must be dismissed. If a sufficient
                  by the amended notice or certification. After the                notice of appeal or certification is not filed after the appellate
                  appealing party’s brief is filed, the notice or                  court deals with the defect (see Rules 34.5(c) and 37.1),
                  certification may be amended only on leave of the                preparation of an appellate record and representation by an
                  appellate court and on such terms as the court may               appointed attorney may cease.
                  prescribe.

            (g)   Effect of Appeal. Once the record has been filed in                           Rule 26. Time to Perfect Appeal
                  the appellate court, all further proceedings in the trial
                  court - except as provided otherwise by law or by                26.1. Civil Cases
                  these rules - will be suspended until the trial court
                  receives the appellate-court mandate.                                 The notice of appeal must be filed within 30 days after the
                                                                                   judgment is signed, except as follows:
(h)         (h)   Advice of Right of Appeal. When a court enters a
                  judgment or other appealable order and the                             (a)    the notice of appeal must be filed within 90 days
                  defendant has a right of appeal, the court (orally or                         after the judgment is signed if any party timely files:
                  in writing) shall advise the defendant of his right of
                  appeal and of the requirements for timely filing a                            (1)   a motion for new trial;
                  sufficient notice of appeal.
                                                                                                (2)   a motion to modify the judgment;
                            Notes and Comments
                                                                                                (3)   a motion to reinstate under Texas Rule of Civil
             Comment on 1997 change: This is former Rule 40. In civil                                 Procedure 165a; or
      cases, the requirement of an appeal bond is repealed. Appeal is
      perfected by filing a notice of appeal. A notice must be filed by                         (4)   a request for findings of fact and conclusions of
      any party seeking to alter the trial court’s judgment. The                                      law if findings and conclusions either are
      restricted appeal — formerly the appeal by writ of error — is                                   required by the Rules of Civil Procedure or, if
      perfected by filing a notice of appeal in the trial court as in other                           not required, could properly be considered by
      appeals. The contents of the notice of appeal is prescribed. The                                the appellate court;
      notice of limitation of appeal is repealed. In criminal cases, the
      rule is amended to apply to notices by the State, and to refer to                  (b)    in an accelerated appeal, the notice of appeal must be
      additional statutory requirements for the State’s notice. In felony                       filed within 20 days after the judgment or order is
      cases in which the defendant waived trial by jury, pleaded guilty                         signed;

                                                                              26
TEXAS RULES OF APPELLATE PROCEDURE                                                                                                      Page 27


      (c)   in a restricted appeal, the notice of appeal must be                   (b)   Criminal Cases. In a criminal case, a prematurely
            filed within six months after the judgment or order is                       filed notice of appeal is effective and deemed filed
            signed; and                                                                  on the same day, but after, sentence is imposed or
                                                                                         suspended in open court, or the appealable order is
      (d)   if any party timely files a notice of appeal, another                        signed by the trial court. But a notice of appeal is not
            party may file a notice of appeal within the                                 effective if filed before the trial court makes a
            applicable period stated above or 14 days after the                          finding of guilt or receives a jury verdict.
            first filed notice of appeal, whichever is later.
                                                                             27.2. Other Premature Actions
26.2. Criminal Cases
                                                                                    The appellate court may treat actions taken before an
      (a)   By the Defendant. The notice of appeal must be                   appealable order is signed as relating to an appeal of that order
            filed:                                                           and give them effect as if they had been taken after the order was
                                                                             signed. The appellate court may allow an appealed order that is
            (1)    within 30 days after the day sentence is                  not final to be modified so as to be made final and may allow the
                   imposed or suspended in open court, or after              modified order and all proceedings relating to it to be included
                   the day the trial court enters an appealable              in a supplemental record.
                   order; or
                                                                             27.3. If Appealed Order Modified or Vacated
            (2)    within 90 days after the day sentence is
                   imposed or suspended in open court if the                        After an order or judgment in a civil case has been
                   defendant timely files a motion for new trial.            appealed, if the trial court modifies the order or judgment, or if
                                                                             the trial court vacates the order or judgment and replaces it with
      (b)   By the State. The notice of appeal must be filed                 another appealable order or judgment, the appellate court must
            within 20 days after the day the trial court enters the          treat the appeal as from the subsequent order or judgment and
            order, ruling, or sentence to be appealed.                       may treat actions relating to the appeal of the first order or
                                                                             judgment as relating to the appeal of the subsequent order or
26.3. Extension of Time                                                      judgment. The subsequent order or judgment and actions
                                                                             relating to it may be included in the original or supplemental
      The appellate court may extend the time to file the notice             record. Any party may nonetheless appeal from the subsequent
of appeal if, within 15 days after the deadline for filing the notice        order or judgment.
of appeal, the party:
                                                                                                  Notes and Comments
      (a)   files in the trial court the notice of appeal; and
                                                                                   Comment to 1997 change:This rule is new and
      (b)   files in the appellate court a motion complying with             combines the provisions of former Rules 41(c) and
            Rule 10.5(b).
                                                                             58.
                      Notes and Comments

       Comment to 1997 change: This is former Rule 41. All                        Rule 28. Accelerated Appeals in Civil Cases
times for perfecting appeal in civil cases — including the time
for perfecting a restricted appeal — are stated. An extension of             28.1. Accelerated Appeals
time is available for all appeals. The provisions of former Rule
41(c) regarding prematurely filed documents are moved to Rule                      (a)   Types of Accelerated Appeals. Appeals from
27. Nonsubstantive changes are made in the rule for criminal                             interlocutory orders (when allowed as of right by
cases.                                                                                   statute), appeals in quo warranto proceedings,
                                                                                         appeals required by statute to be accelerated or
                                                                                         expedited, and appeals required by law to be filed or
                  Rule 27. Premature Filings                                             perfected within less than 30 days after the date of
                                                                                         the order or judgment being appealed are accelerated
27.1. Prematurely Filed Notice of Appeal                                                 appeals.

      (a)   Civil Cases. In a civil case, a prematurely filed                      (b)   Perfection of Accelerated Appeal. Unless otherwise
            notice of appeal is effective and deemed filed on the                        provided by statute, an accelerated appeal is
            day of, but after, the event that begins the period for                      perfected by filing a notice of appeal in compliance
            perfecting the appeal.                                                       with Rule 25.1 within the time allowed by Rule


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