                                                                       ACCEPTED
                                                                   01-15-00597-CV
                                                        FIRST COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                            12/18/2015 11:54:50 PM
                                                             CHRISTOPHER PRINE
                                                                            CLERK

               01-15-00597-CV

        IN THE COURT OF APPEALS            FILED IN
                                    1st COURT OF APPEALS
FOR THE FIRST COURT OF APPEALS DISTRICT HOUSTON, TEXAS
             HOUSTON, TEXAS        12/18/2015 11:54:50 PM
                                           CHRISTOPHER A. PRINE
                                                 Clerk

            LEVENT ULUSAL,
                    Appellant,
                   V.
         LENTZ ENGINEERING, L C
                    Appellee.


REPLY BRIEF OF APPELLANT, LEVENT ULUSAL


       ORAL ARGUMENT REQUESTED


                                            Daniel Kistler
                          Daniel Kistler, Attorney at Law
                                           Office Address:
                                   17041 El Camino Real
                                                   Ste. 204
                                   Houston, Texas 77058
                                         Mailing Address:
                                   2617C West Holcombe
                                                   No. 421
                                   Houston, Texas 77025
                              Telephone: (713) 855-0827
                              Facsimile: (866) 352-5124
                            kistlerattorney@comcast.net

                        ATTORNEY FOR APPELLANT
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... ii

INDEX OF AUTHORITIES .................................................................................... iii

ARGUMENT ............................................................................................................. 1

Ulusal Adequately Briefed All Issues on Appeal ................................................... 1

Service and Citation Were Insufficient to Support a Default Judgment
against Ulusal. ........................................................................................................... 12

The Law Regarding Amended or Corrected Returns of Citation Cannot
Be Ignored ................................................................................................................. 14

Lentz’ Pleadings Do Not Support a Judgment Against Ulusal for Fraud. .......... 16

Lentz’ Pleadings Do Not Support a Judgment Against Ulusal for
Attorney’s Fees. ......................................................................................................... 16

No Evidence Supported an Award of Damages Against Ulusal. .......................... 21

CONCLUSION AND PRAYER FOR RELIEF ..................................................... 23

CERTIFICATE OF SERVICE ............................................................................... 24

CERTIFICATE OF COMPLIANCE ............................................................... 25




                                                        ii
                                    INDEX OF AUTHORITIES


                                                       CASES
A.G. Servs., Inc. v. Peat, Marwick, Mitchell & Co., 757 S.W.2d 503, 507
  (Tex.App.-Houston [1st Dist.]1988, writ denied) ..................................... 17

Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 793-94 (Tex.
 App. – Houston [1st Dist.] 1999, no pet.) .............................................. 4, 19

Baylor University v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007) ........... 20

Border States Electric Supply of Texas, Inc. v. Coast To Coast Electric,
 LLC, Lexis 5681, May 29, 2014, 13-13-00118-CV (Tex. App. – Corpus
 Christi 2014, pet. denied) .......................................................................... 25

C. W. Bollinger Insurance Company v. Fish, 699 S.W.2d 645, 647 (Tex.
  App. – Austin 1985, no writ) ..................................................................... 12

Campdera v. Reed, 131 S.W.2d 297 (Tex. Civ. App., 1939, writ ref’d n.r.e.)
  ................................................................................................................... 12

Capitol Brick, Inc. v Fleming Mfg. Co., 722 S.W.2d at 401 (Tex. 1986).... 13,
 20

Choy v. Graziano Roofing of Texas, Inc., 322 S.W.3d 276, 282 (Tex.App.-
 Houston [1st Dist.] 2009, no pet.) ............................................................. 25

Direct Value, L.L.C. v. Stock Bldg. Supply, L.L.C., 388 S.W.3d 386 (Tex.
 App. – Amarillo 2012, no pet.) ........................................................... 24, 25

Gibson v. Cuellar, 440 S.W.3d 150, 156 (Tex.App.--Houston [14th Dist.]
 2013, no pet.) ............................................................................................. 21

Hercules Concrete Pumping Serv. v. Bencom Management & General
 Contracting Corp., 62 S.W.3d 308 (Tex. App. – Houston [1st Dist.] 2001,
 pet. denied), ................................................................................................. 9

Heritage Gulf Coast Props., Ltd. v. Sandalwood Apts., Inc., 416 S.W.3d 642
 (Tex. App. – Houston [14th Dist.] 2013, no pet.), ............................... 22, 24



                                                          iii
Hofer v. Lavender, 679 S.W.2d 470, 474 (Tex. 1984) ................................. 21

Inpetco, Inc. v. Texas American Bank/Houston, N.A., 729 S.W.2d 300 (Tex.
1987).       16

In Re: E.R., 385 S.W.3d 552, 557 (Tex. 2012) ............................................... 9

In the Interest of E.R., J.B., E.G. and C.L., Children, 385 S.W.3d 552, 556
  (Tex. 2012) .................................................................................................. 6

Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 42 (Tex. App. – Houston [14th
  Dist.] 1996, no writ) .................................................................................. 14

King v. Acker, 725 S.W.2d 750 (Tex. App. – Houston [1st Dist.] 1988, no
  writ) ........................................................................................................... 21

Kreighbaum v. Lester, No. 05-06-01333-CV, 2007 WL 1829729, at *2
 (Tex.App.-Dallas June 27, 2007, no pet.) (mem. op.)) ............................. 26



Kubovy v. Cintas Corp., 2003 WL 21299938, 01-00521-CV; (Tex. App. –
 Houston [1st Dist.] 2003, no pet.) .............................................................. 18

Mitchell v. LaFlamme, 60 S.W.3d 123 (Tex. App. – Houston [14th Dist.]
 2000, no pet.) ............................................................................................. 20

Monsanto Co. v. Milam, 494 S.W.2d 534, 536 (Tex.1973) ................... 23, 24

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)....... 9

Narmah v. Waller, 257 S.W.3d 267, 273 n. 1)(Tex. App. – Houston [1st
 Dist.] 2008, no pet.) ................................................................................... 17

Onwukwe v. Ike, 137 S.W.3d 159, 164 (Tex. App. – Houston [1st Dist.]
 2008, no pet.) ............................................................................................. 17

Paramount Pipe & Supply Co, Inc. v. Muhr, 749 S.W.2d 491 (Tex. 1988) . 14




                                                         iv
Park v. Mem. Health Sys. of E. Tex., 397 S.W.3d 283, 288 (Tex.App.-Tyler
  2013, pet. filed) ......................................................................................... 23

Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) ........................................ 7

Primate Construction, Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994)........ 10, 11

Republic Underwriters Ins. Inc. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.
  2004) ............................................................................................................ 5

Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982). ....................................... 14

Taylor Pipeline Constr., Inc. v. Directional Road Boring, Inc., 438
  F.Supp.2d 696, 715 (E.D.Tex.2006) ......................................................... 25

Transfer Product, Inc. v. Tex Par Energy, Inc., 788 S.W.2d 713 (Tex. App. –
  Corpus Christi 1990, no writ) .............................................................. 21, 22


Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997) ......................... 5, 7

Whallon v. City of Houston, 462 S.W.3d 146 (Tex. App. – Houston [1st
 Dist.] 2015, no pet.) ................................................................................... 20
                                                           		

                                                   STATUTES

§17.044(a)(3), Tex. Civ. Prac. Rem. Code ............................................... 7, 14

§38.001, et seq. Tex. Civ. Prac. Rem. Code ........................................... 18, 25

Chapter 10, Tex. Civ. Prac. Rem. Code. ....................................................... 25

Chapter 162, Tex. Prop. Code....................................................................... 28




                                                          v
                                                 RULES

Rule 118, Tex. R. Civ. P. ........................................................................ 18, 19

Rule 201, Tex. R. Evid ................................................................................... 8

Rule 30, Tex. R. App. P. ............................................................................... 17

Rule 38.1(a), Tex. R. App. P. ....................................................................... 17

Rule 38.1(i), Tex. R. App. P. ...................................................................... 5, 6

Rule 38.9, Tex. R. App. P. ............................................................................ 16

Rule 45, Tex. R. Civ. P. 47 of the Texas Rules of Civil Procedure.............. 14

Rule 47, Tex. R. Civ. P. 47 of the Texas Rules of Civil Procedure.............. 14




                                                    vi
                   ARGUMENT AND AUTHORITIES

I.  ULUSAL         ADEQUATELY             BRIEFED      ALL     ISSUES      ON
APPEAL.

      This is an appeal from a default judgment. In its response brief, first

Lentz argues that Ulusal waived certain issues on appeal (listed on pages 10

and 11 of its brief) by not providing sufficient citations to the record and to

supporting authority.

      In his opening brief, Ulusal presented five separate issues on appeal:

      I. Does the record on appeal affirmatively establish that Ulusal was
      properly served with citation pursuant to §17.044(a)(3), Tex. Civ.
      Prac. Rem. Code?

      II. Does the record on appeal affirmatively show that Ulusal was
      amenable to service of citation pursuant to 17.044(a)(3), Tex. Civ.
      Prac. Rem. Code?

      III. Does the record on appeal affirmatively show that the default
      judgment taken against Ulusal is supported by Lentz’ live pleadings?

      IV. Were any legally sufficient causes of action pled against Ulusal?

      V. Do the pleadings and proof as shown by the record on appeal
      support a judgment against Ulusal?

Imbedded in these issues on appeal, Ulusal discussed the various points

raised within these issues. Lentz cites to several instances where it claims

that some of these subsidiary points or issues were not supported by




                                      1
adequate record citations or citations to authority, as required by Rule

38.1(i), Tex. R. App. P.

      “The brief must state concisely all issues or points presented for

review. The statement of an issue or point will be treated as covering every

subsidiary question that is fairly included.” Rule 38.1(f), Tex. R. App. P.;

Fletcher v. Department of Family and Protective Services, 277 S.W.3d 58,

63 (Tex. App. – Houston [1st Dist.] 2009, no pet.).

      Rule 38.1(i), Tex. R. App. P. sets forth general briefing standards:

      “Argument. The brief must contain a clear and concise argument for

      the contentions made, with appropriate citations to authorities and to

      the record.”

"We have instructed the courts of appeals to construe the Rules of Appellate

Procedure reasonably, yet liberally, so that the right to appeal is not lost by

imposing requirements not absolutely necessary to effect the purpose of a

rule." Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997)).               In

Republic Underwriters Ins. Inc. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.

2004), the Texas Supreme Court reversed a finding of waiver of an issue




                                      2
based on the appellant’s citation to a single authority, and that the briefing

requirements of Rule 38.1(i), Tex. R. App. P. had been satisfied. 1

       The first objection raised by is that there is no support for any

contention that due process rights were violated because Ulusal did not

receive actual notice of the lawsuit. In response, Ulusal argues that there is

no support in the record for any contention that Ulusal received “actual

notice” of the lawsuit, the only reference being the Secretary of State’s

return which included a statement that the envelope in which notice of the

lawsuit was mailed had the following notation (“Return to Sender,

Unclaimed, Unable to Forward”). (CR-41).

       “A complete failure of service deprives a litigant of due process and a

trial court of personal jurisdiction; the resulting judgment is void and may be

challenged at any time.” In the Interest of E.R., J.B., E.G. and C.L.,

Children, 385 S.W.3d 552, 556 (Tex. 2012). So, even though Ulusal did not

cite to this authority in his brief, this case does support the principal that due

process requires proper service of citation.

       Lentz’ objection on this point, while technically accurate, runs

contrary to well established case law which requires a liberal application of

the Rules of Appellate Procedure, and disfavors waiver due to a procedural

1
 Cf., Lentz brief, page 9: “But merely claiming error and then citing a single legal
authority fails to satisfy this burden.”

                                            3
defect.    Verburgt v. Dorner, 959 S.W.3d 615, 616 – 617 (Tex. 1997).

“Appellate Rules are to be construed reasonably, yet liberally, so that the

right to appellate review is not lost by waiver.” Perry v. Cohen, 272 S.W.3d

585, 587 (Tex. 2008).

      The first eight such instances are listed on pages 10 and 11 of Lentz’

response brief. They are:

      1.     “Construction Owner’s (Ulusal’s) due process rights were

      violated because he did not receive actual notice of the lawsuit”

      2.     “Defect in return renders service improper.”

      3.     “In order for his pleadings to be effective, Draftsman was

      required to state the precise date when Construction Owner moved to

      New Jersey”

      4.     “Failure to plead trustee status deprives the district court of

      jurisdiction”

      5.     “Failure to adequately allege all elements of fraud deprives the

      district court of jurisdiction”

      6.     “Draftsman failed to adequately plead entitlement to attorney’s

      fees for contract and fraud.”

      7.     “Draftsman’s petition failed to comply with fair notice

      standard”



                                        4
        8.     “Draftsman failed to adequately prove damages.”

        Before discussing these objections to Ulusal’s arguments, it should be

noted that many of the factual allegations set forth in Lentz’ brief, that they

not supported in the record. There is nothing in the record to support Lentz’

unsupported allegations that Ulusal deliberately refused to claim his mail

(e.g., Lentz brief, pages 6 and 7) or that Ulusal fled to New Jersey to avoid

paying his or his company’s debts (e.g., Lentz brief, 5).2

        The assertion that “Solidarity Contracting (the other defendant in this

case) is no longer in business, and thus, the judgment as to them is only

worth the paper on which it is written,” (Lentz brief, page 6, footnote 2) is

not supported in the record, and is factually incorrect. Ulusal asks this court

to take judicial notice, pursuant to Rule 201, Tex. R. Evid., of the records of

the Texas Secretary of State, included in Ulusal’s Supplemental Appendix,

filed herewith. These records, which are capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned, Rule 201(b)(2), Tex. R. Evid., establish that Solidarity

Contracting has continuously been in business since it was first founded in

2008.



2
   Regarding footnote 2 to Lentz’ brief, I can assure this court that New Jersey is, indeed,
a beautiful state.

                                             5
      Returning to Lentz’ objections, taking each in its turn, beginning with

the first objection, involving constitutional rights being violated, there is no

question due process mandates that a party have “notice and opportunity for

hearing appropriate to the nature of the case.” In Re: E.R., 385 S.W.3d 552,

557 (Tex. 2012), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339

U.S. 306, 313 (1950). “When notice is a person's due, process which is a

mere gesture is not due process." Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. at 315 (1950). As for the allegation that there are no citations

to the record supporting the factual proposition, Ulusal has repeatedly cited

in the record to the returns of citation showing that he received no actual

notice of the lawsuit, as he never received the envelope served on him from

the Secretary of State.

      The second objection raised by Lentz, that a defect in the return of

service renders service improper, Ulusal would show that he has cited to

numerous cases (pages 11 and 12 of Ulusal’s opening brief) in support of his

contention that a return of citation, if inaccurate, was invalid. In Hercules

Concrete Pumping Serv. v. Bencom Management & General Contracting

Corp., 62 S.W.3d 308 (Tex. App. – Houston [1st Dist.] 2001, pet. denied),

cited in Ulusal’s brief on page 12, this court held:

      Because the return of citation "fails absolutely" to show service on the
      defendant, Hercules Concrete Pumping Service, Inc., the return was

                                       6
       fatally defective. See Barker CATV, 989 S.W.2d at 793; Primate, 884
       S.W.2d at 152-53. Proper service not being affirmatively shown, there
       is error on the face of the record. See Primate, 884 S.W.2d at 153.”3

This point has been adequately briefed, and is not subject to waiver.t

       Next, Lentz complains that Ulusal’s argument that a defect in return

renders service improper. This issue is extensively argued, with several

citations to authority, both in Ulusal’s opening brief, and in this reply brief.

Lentz’ objection on this point is without merit.

       The third objection raised by Lentz is that Ulusal presented no

authority in support of the argument that: “In order for his pleadings to be

effective, Draftsman was required to state the precise date when

Construction Owner moved to New Jersey.” (Lentz Brief, page 9). The

problem with this objection is that it misunderstands, and accordingly,

misstates the issue raised by Ulusal.

       On pages 13 and 14 of his opening brief, Ulusal argued that the

conflict between the statement in Plaintiff’s Original Petition that Defendant

was, at the time the suit was filed, a resident of Harris County, Texas (CR-4)

and the allegation in Lentz’ Second Amended Petition that left the state prior

to the filing of this lawsuit (CR-21) created a fatal variance or conflict in the

pleadings on file that are not rectified in the record. Ulusal has found no

3
  Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.789 (Tex. App – Houston [1st
Dist.] 1999, no pet.); Primate Construction, Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994).

                                            7
authority specifically on point. However, it is Ulusal’s contention that the

rule demanding strict compliance with the Rules of Civil Procedure

regarding the service of process to support a default judgment, Primate

Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994), must include

the process by which the Secretary of State is deemed a statutory agent for

service the time this lawsuit was filed.

         This issue is germane to Ulusal’s arguments found at pages 13 – 17

of Ulusal’s opening brief concerning whether the Texas Secretary of State

was, pursuant to §17.044(3), Tex. Civ. Prac. Rem. Code, Ulusal’s statutory

agent for service. For the Secretary of State to have been Ulusal’s statutory

agent of service, Ulusal must have been a nonresident before the lawsuit was

filed. §17.044(a)(3), Tex. Civ. Prac. Rem. Code.

         “[T]he ultimate question before us is whether the record affirmatively
         shows on its face a strict compliance with any statute by which such
         jurisdiction may be acquired through substitute service. Whitney v. L
         & L Realty Corporation, 500 S.W.2d 94 (Tex.1973); McKanna v.
         Edgar, 388 S.W.2d 927 (Tex.1965); Flynt v. City of Kingsville, 125
         Tex. 510, 82 S.W.2d 934 (1935). In this form of direct attack upon the
         judgment, no presumptions may be indulged in favor of that
         judgment. McKanna v. Edgar, supra. Moreover, we may not infer
         from a pleaded conclusion of law any fact necessary to sustain that
         conclusion. Campdera v. Reed, 131 S.W.2d 297.”4

C. W. Bollinger Insurance Company v. Fish, 699 S.W.2d 645, 647 (Tex.

App. – Austin 1985, no writ).          The record here does not make such an

4
    Campdera v. Reed, 131 S.W.2d 297 (Tex. Civ. App., 1939, writ ref’d n.r.e.)

                                             8
affirmative showing. The positions taken by Lentz in its Original Petition

and Second Amended Original Petition regarding Ulusal’s residency are in

direct conflict. This issue has been adequately briefed, and Lentz’ objection

is without merit.

      The fourth objection is that Ulusal presented no record citation or

authority supporting his argument that the failure to plead trustee status

deprived the court of jurisdiction. Argument on this issue is found on pages

17 through 20 (the last three issues on appeal were combined into one

argument). This issue has been adequately brief, both in Ulusal’s opening

brief and in this reply brief. Lentz’ objections are without merit.

      The fifth objection to the sufficiency of Ulusal’s opening brief is to

Ulusal’s issue that an improperly pled fraud claim cannot support a default

judgment. Again, as in the prior objection, this issue was argued on pages

17 through 20 of Ulusal’s opening brief. A default judgment cannot rely on

inadequately pled causes of action. Capitol Brick, Inc. v. Fleming Mfg. Co.,

722 S.W.2d at 401 (Tex. 1986). This issue has been adequately brief, both

in Ulusal’s opening brief and in this reply brief. Lentz’ objections are

without merit.

      The sixth objection centers on Lentz’ claim that Ulusal failed to

provide adequate record citations in support of his argument regarding the



                                       9
recovery of attorney’s fees.     On page 18 of his opening brief, Ulusal

specifically referenced the Second Amended Petition as being the pleading

on which an award of attorney’s fees was entered, as well as the final

judgment, which awarded joint and several attorney’s fees. Ulusal had

previously cited to both of these items from the record. (Ulusal’s opening

brief, pages 6 and 7). This issue has been adequately brief, both in Ulusal’s

opening brief and in this reply brief. Lentz’ objections are without merit.

      The seventh objection raised by Lentz to the sufficiency of Ulusal’s

briefing was with respect to fair notice. As argued in Ulusal’s opening brief:

      A plaintiff’s petition will support a default judgment if the petition:

      (1) states a cause of action within the court’s jurisdiction, (2) gives

      fair notice to the defendant of the claim asserted, and (3) does not

      affirmatively disclose the invalidity of the claim on its face. Jackson

      v. Biotectronics, Inc., 937 S.W.2d 38, 42 (Tex. App. – Houston [14th

      Dist.] 1996, no writ).

In Paramount Pipe & Supply Co, Inc. v. Muhr, 749 S.W.2d 491 (Tex. 1988),

cited in Jackson v. Biotectronics, Inc., 937 S.W.2d at 42, the Court discussed

the fair notice requirements when there has been a default judgment.

      Rules 45 and 47 of the Texas Rules of Civil Procedure require that

      pleadings give fair notice of the claim asserted. Rule 45 mandates



                                      10
      plain and concise language and provides that the fact "[t]hat an

      allegation be evidentiary or be of legal conclusion shall not be

      grounds for objection when fair notice to the opponent is given by the

      allegations as a whole." Rule 47 requires that an original pleading

      include "a short statement of the cause of action sufficient to give fair

      notice of the claim involved." The purpose of the fair notice

      requirement is to provide the opposing party with sufficient

      information to enable him to prepare a defense. Roark v. Allen, 633

      S.W.2d 804, 810 (Tex.1982).

Paramount Pipe & Supply Co, Inc. v. Muhr, 749 S.W.2d at 494.

      What Ulusal argues is that the Second Amended Original Petition did

not give fair notice, as it was inherently misleading with respect to attorney’s

fees. When, in the body of the petition, there was a request for attorney’s

fees, it was solely predicated on §38.001, et seq. Tex. Civ. Prac. Rem. Code.

(CR-25).

      An award of attorney’s fee pursuant to Chapter 38, Tex. Civ. Prac.

Rem. Code is limited to claims for (1) rendered services, (2) performed

labor, (3) furnished material, (4) freight or express overcharges, (5) lost or

damaged freight or express, (6) killed or injured stock, (7) a sworn account,

or (8) an oral or written contract. §38.001, Tex. Civ. App. Rem. Code. Two



                                      11
causes of action were alleged against Ulusal individually: violations of the

Texas Construction Trust Act, and common law fraud. (CR-23 through CR-

25). None of the Chapter 38 causes of action allowing for a recovery of

attorney’s fees were alleged against Ulusal. This issue has been adequately

brief, both in Ulusal’s opening brief and in this reply brief.          Lentz’

objections are without merit.

      Finally, Lentz objects to Ulusal’s point that damages against Ulusal

personally were unclear, unsupported by the record, and not supported by

any legal authority. Again, Ulusal refers this court to Ulusal’s opening brief,

pages 17 – 20, and Ulusal’s specific responses to Lentz’ brief, found below.

This issue has been adequately brief, both in Ulusal’s opening brief and in

this reply brief. Lentz’ objections are without merit.

      To the extent that this court finds that one or more of Lentz’

objections to the sufficiency of Ulusal’s brief, then Ulusal respectfully

requests that he be granted leave to amend his brief to correct any such

deficiencies. Rule 38.9, Tex. R. App. P.; Inpetco, Inc. v. Texas American

Bank/Houston, N.A., 729 S.W.2d 300 (Tex. 1987).

Service and Citation Were Insufficient to Support a Default Judgment
against Ulusal.

      This is a default judgment suit in which there is nothing in the record

to support any inference that Ulusal received the petition and citation in this

                                      12
lawsuit at any time prior to judgment being entered. Lentz states in its brief

that Ulusal “refused” delivery,” and that he “failed to claim his mail,”

reaching the “obvious” conclusion that “the petition and citation were sent to

Construction Owner’s correct address, Construction Owner refused to claim

his mail, and the such [sic] mail could not be forwarded because the address

was correct.”

      Ulusal concedes that Lentz’ theory is logically possible. However, it

is equally possible that petition and citation were mailed to Ulusal to the 75

Jackson Ave., Pompton Plains, New Jersey 07444, but that the mail was

delivered to another, incorrect address, that Ulusal accordingly never

received notice of the items being mailed to him, and as such was never

served.

      Both Lentz’ and Ulusal’s speculations are just that, a mind

experiment, since in this limited appeal, the court is restricted to a review of

the record on appeal. Rule 30, Tex. R. App. P.; Onwukwe v. Ike, 137 S.W.3d

159, 164 (Tex. App. – Houston [1st Dist.] 2008, no pet.); Narmah v. Waller,

257 S.W.3d 267, 273 n. 1)(Tex. App. – Houston [1st Dist.] 2008, no pet.).

There is nothing in the record that shows Ulusal refused to accept the

citation mailed to him. There is nothing in the record to show that Ulusal

had actual notice actual notice of this lawsuit.



                                       13
      In footnote 4 of Lentz’ brief (page 14 of the Lentz brief), Lentz

appears to be implying that Ulusal is trying to hide his real address by

violating Rule 38.1(a), Tex. R. App. P. by not providing Ulusal’s address in

the brief. Ulusal is not trying to hide his true address by failing to include it

in his brief, in violation of Rule 38.1(a), for the simple reason that Rule

38.1(a) does not require Ulusal to state his address.

      “(a) Identity of parties and counsel. The brief must give a complete

      list of all parties to the trial court’s judgment or order appealed from,

      and the names and addresses of all trial and appellate counsel, except

      as otherwise provided in Rule 9.8.”

The Law Regarding Amended or Corrected Returns of Citation Cannot
be ignored.

      On page 12 of Ulusal’s opening brief, Ulusal describes how the return

of citation was amended. In doing so Ulusal properly cited to the citation

return as originally filed, but not to the amended citation that is the subject

of this argument. Lentz pointed this out at page 16 of its brief. The omitted

item, the amended return, is found at CR-40.

      Lentz relies on Kubovy v. Cintas Corp., 2003 WL 21299938, 01-

00521-CV; (Tex. App. – Houston [1st Dist.] 2003, no pet.) for the

proposition that an amended citation was effective though there was no court

order authorizing any such amendment. Ulusal reads Kubovy differently.

                                       14
       In Kubovy, the sole issue on appeal was lack of jurisdiction over the

defendant due to defective service of process. While in the recitation of the

case history the court did state that the citation was amended, there was no

issue raised and no discussion of the propriety of the return. The fact that

the citation had been amended had no bearing on the outcome of the case,

since it was not challenged. It was, at best, dicta.

       Lentz argues that its Motion to Retain was a de facto Rule 118, Tex.

R. Civ. P. motion requesting permission to amend the return. Lentz also

argues that through the order granting the Motion to Retain, the trial court

was “implicitly agreeing that such correction would be permitted.     (Lentz

Brief, page 18). In the motion to retain, Lentz asked the court to retain the

case on the court’s trial docket in order to allow Lentz time to obtain

certificates from the Secretary of State on both defendants, and to have

Ulusal’s return amended by the process server.         Lentz did not request

permission to amend the return, and the trial court did not grant permission

to amend the return. The requirements of Rule 118, Tex. R. Civ. P. were not

met. “Where there is no proof that the trial court allowed the return to be

amended, the amended return is disallowed.” Barker CATV Constr., Inc. v.

Ampro, Inc., 989 S.W.2d 789, 793-94 (Tex. App. – Houston [1st Dist.] 1999,

no pet.).



                                       15
Lentz’ Pleadings Do Not Support a Judgment Against Ulusal for Fraud.

      Lentz claims that the business records affidavit of Jarrod Aden (CR-

46 through CR-58) adequately supported damages under its fraud theory.

Ulusal claims, to the contrary, that not only are Lentz’ pleadings inadequate

to support its fraud claim, but the records it offered to support its damages

claim disprove the viability of the fraud claim. The invoices attached to Mr.

Aden’s affidavit total $48,903.38, while Mr. Aden testifies in his affidavit

that the amount due and owing to Lentz, after all just and lawful payments

and credits have been allowed, is $38,353.38.

      This is clearly an action on a contractual debt that Lentz artfully pled,

in the alternative, as a fraudulent inducement claim. As the Court has stated,

      “The viability of Sonnichsen's fraud claim depends upon the nature of

      the damages he seeks to recover. This analysis is consistent with our

      holdings that focus the legal treatment of claims on the true nature of

      disputes rather than allow artful pleading to morph contract claims

      into fraud causes of action to gain favorable redress under the law.”

Baylor University v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007).

Lentz’ Pleadings Do Not Support a Judgment Against Ulusal for
Attorney’s Fees.

      As discussed above, a default judgment cannot rely on inadequately

pled causes of action or award damages in excess of those specifically pled.

                                      16
Capitol Brick, Inc. v Fleming Mfg. Co., 722 S.W.2d at 401 (Tex. 1986).

Lentz argues that it sufficiently pled a claim for attorney’s fees. The cases

which Lentz cites to, Whallon v. City of Houston, 462 S.W.3d 146 (Tex.

App. – Houston [1st Dist.] 2015, no pet.), Bancservices Group, Inc. v. Strunk

& Associates, L.P., 2005 WL 2674985 (Tex. App. – Houston [14th Dist.]

2005, no pet.), Mitchell v. LaFlamme, 60 S.W.3d 123 (Tex. App. – Houston

[14th Dist.] 2000, no pet.) all involve situations in which an answer was filed

and the case proceed to judgment; none involved a default judgment.

      Ulusal agrees that a claim for attorney’s fees found in a prayer for

relief is sufficient to support an award of attorney’s fees, Whallon v. City of

Houston, 462 S.W.3d 146 (Tex. App. – Houston [1st Dist.] 2015, no pet.),

Ulusal also agrees that a plaintiff need not plead the specific statute under

which attorney’s fees are sought, provided the party pleads facts which, if

true, entitle him to the relief sought. Id, at 165; Gibson v. Cuellar, 440

S.W.3d 150, 156 (Tex.App.--Houston [14th Dist.] 2013, no pet.).

      As discussed above, Ulusal was sued under two specific causes of

action: Breach of the Texas Construction Trust Fund Act, §162.001, et seq,

Tex. Prop. Code, and common law fraud. Turning first to the fraud claims,

Lentz cites to Transfer Product, Inc. v. Tex Par Energy, Inc., 788 S.W.2d

713 (Tex. App. – Corpus Christi 1990, no writ) and King v. Acker, 725



                                      17
S.W.2d 750 (Tex. App. – Houston [1st Dist.] 1988, no writ) in support of his

claim that attorney’s fees were properly awarded in this case.

      Attorney’s fees formed a separate element of damages awarded in this

case. (CR- 81). After the award of actual damages and prejudgment interest,

Lentz was additionally awarded $5,000.00 in attorney’s fees, with

conditional additional awards in the even of an appeal.

      Exemplary damages exist “as an example for the good of the public

and to compensate for inconvenience and attorney's fees.”          Hofer v.

Lavender, 679 S.W.2d 470, 474 (Tex. 1984). As such, attorney’s fees may

be added into an award of exemplary damages, if there was such an award.

In this case, no exemplary damages were awarded.

      In Transfer Product, Inc. v. Tex Par Energy, Inc., Supra, the Corpus

Christi Court of Appeals recognized the general rule that when requesting an

award for exemplary damages, evidence can be presented on the amount of

attorney’s fees for consideration as to the amount of exemplary damages.

Transfer Product does not stand for the proposition that a finding of fraud

supports a separate award of attorney’s fees. As stated above, it is only

applicable in the context of the amount of an award of exemplary damages.

Since no exemplary damages were awarded, there is no basis for inclusion of

attorney’s fees as damages arising from the alleged fraud.



                                     18
      Lentz also argues that by generally pleading for attorney’s fees in its

prayer for relief, it met the basic requirements for a valid request for

attorney’s fees. Such would be the case if that was the only basis on which

attorney’s fees were sought. Lentz also, specifically, pled for attorney’s fees

under §38.001, Tex. Civ. Prac. Rem. Code.

      In Heritage Gulf Coast Props., Ltd. v. Sandalwood Apts., Inc., 416

S.W.3d 642 (Tex. App. – Houston [14th Dist.] 2013, no pet.), the counter-

plaintiff pled for attorney’s fees under three specific theories of recovery: (1)

pursuant to Chapter 38 of the Civil Practice and Remedies Code, (2)

pursuant to Chapter 10 of the Civil Practice and Remedies Code, and (3) as

an element of punitive damages. Additionally, the counter-plaintiff sought

attorney’s fees generally. The counter-plaintiff did not prevail on any of the

specific theories that authorized an award of attorney’s fees, but did not

prevail on any of those specific claims. However, the contract that was at

issue contained a prevailing party or “loser pays” provision. The counter-

plaintiff argued that since the “loser pays” provision would support an award

of attorney’s fees, fees were recoverable under the general request for fees.

      The court rejected this argument, and held:

      Although a general pleading is sufficient to support recovery of fees

      under any applicable theory, " ‘ [w]hen a party pleads a specific



                                       19
      ground for recovery of attorney's fees, the party is limited to that

      ground and cannot recover attorney's fees on another, unpleaded

      ground.’ " Id. at 916 (quoting Kreighbaum v. Lester, No. 05-06-

      01333-CV, 2007 WL 1829729, at *2 (Tex.App.-Dallas June 27, 2007,

      no pet.) (mem. op.)). Additionally, in a petition, " [t]he specific

      allegation controls over the general allegation." Monsanto Co. v.

      Milam, 494 S.W.2d 534, 536 (Tex.1973); see Park v. Mem. Health

      Sys. of E. Tex., 397 S.W.3d 283, 288 (Tex.App.-Tyler 2013, pet.

      filed); A.G. Servs., Inc. v. Peat, Marwick, Mitchell & Co., 757

      S.W.2d 503, 507 (Tex.App.-Houston [1st Dist.]1988, writ denied).

Heritage Gulf Coast Props., Ltd. v. Sandalwood Apts., Inc., 416 S.W.3d at

659 – 660). The specific allegation controls over the general allegation.”

Monsanto Co. v. Milam, 494 S.W.2d 534, 536 (Tex.1973).

      In the case at bar, Lentz did not plead any causes of action against

Ulusal under which recovery of attorney’s fees could be had pursuant to

Chapter 38, Tex. Civ. Prac. Rem. Code. No other authority was stated in

support of an award of attorney’s fees. The Texas Construction Fund Trust

Act is not one of the enumerated bases for an award of attorney’s fees

pursuant to §38.001, Tex. Civ. Prac. Rem. Code. The general prayer for




                                   20
attorney’s fees is disregarded, in favor of the specifically pled grounds. It

was error to award Lentz attorney’s fees from Ulusal.

No Evidence Supported an Award of Damages Against Ulusal.

       No contract or quasi-contractual claims were alleged against Ulusal.

Under both of Lentz’ causes of action -- fraud and a violation of the Texas

Construction Trust Fund Act the damages were unliquidated.

       Lentz claims that the Texas Construction Trust Fund Act’s measure of

damages are identical to the breach of contract damages that it submitted

with its Motion for Default (Affidavit of Jarrod Aden, CR-46 through CR-

58). In this, Lentz relies on Direct Value, L.L.C. v. Stock Bldg. Supply,

L.L.C., 388 S.W.3d 386 (Tex. App. – Amarillo 2012, no pet.). However, the

court in Direct Value did not address the proper measure of damages in a

Chapter 162, Tex. Prop. Code case.

       For that matter, neither did the legislature when it enacted Chapter

162.

       “The Act was specifically enacted to serve as a special protection for

       subcontractors and materialmen when contractors refuse to pay a

       subcontractor or materialman for labor and materials. Choy v.

       Graziano Roofing of Texas, Inc., 322 S.W.3d 276, 282 (Tex.App.-

       Houston [1st Dist.] 2009, no pet.) (citing Taylor Pipeline Constr., Inc.



                                      21
      v. Directional Road Boring, Inc., 438 F.Supp.2d 696, 715

      (E.D.Tex.2006)”

Direct Value, L.L.C. v. Stock Bldg. Supply, L.L.C., 388 S.W.3d at 391. In

Choy, cited above, the trial court awarded damages based on the amount of

trust funds that had been received by the defendant as applied to the amount

due and payable to the plaintiff. Id., at 295. In Border States Electric

Supply of Texas, Inc. v. Coast To Coast Electric, LLC, Lexis 5681, May 29,

2014, 13-13-00118-CV (Tex. App. – Corpus Christi 2014, pet. denied), the

Corpus Christi Court of Appeals found that damages under the TCFTA had

not been proved, as there was no evidence of the amount of payments or

loans that would constitute trust funds. Id., at 4.

      From these cases it is clear that the measure of damages under the

TCFTA is the amount of trust funds, up to the amount of the claim, as

opposed to the amount of the claim. Since no evidence was presented on the

amount of trust funds to which the TCFTA would apply, no damages can be

awarded against Ulusal on that theory of recovery.

      Inasmuch as fraud cannot stand as a cause of action given the nature

of this case, no actual damages can be awarded under that theory of

recovery, either.




                                       22
               CONCLUSION AND PRAYER FOR RELIEF

       In this reply brief, Ulusal has not reargued all of his issues on appeal.

To the extent that any issues raised in his opening brief have not been

addressed in this reply, Ulusal has not abandoned any of said claims, and

reasserts them in their entirety herein. The default judgment entered in this

cause was fundamentally defective as the rules governing service and return

of citation were not strictly complied with. Lentz’ fraud claims are nothing

more than an attempt to wrongfully morph a breach of contract claim into a

fraud claim, so that defendants and damages not otherwise reachable might

be reached. Any claim for damages under the TCFTA was not supported by

relevant evidence. Accordingly, Ulusal prays that this court reverse the final

judgment entered in this lawsuit, and remand this case to the district court

for a trial on the merits.

                                                      Respectfully submitted,

                                                               Daniel Kistler
                                             Daniel Kistler, Attorney at Law
                                                              Office Address:
                                                      17041 El Camino Real
                                                                      Ste. 204
                                                     Houston, Texas 77058
                                                            Mailing Address:
                                                     2617C West Holcombe
                                                                      No. 421
                                                     Houston, Texas 77025
                                                 Telephone: (713) 855-0827
                                                 Facsimile: (866) 352-5124

                                       23
                                          kistlerattorney@comcast.net

                                      ATTORNEY FOR APPELLANT




                  CERTIFICATE OF SERVICE

   On this 18th day of December, 2015, a true and correct copy of

the foregoing Reply Brief of Appellant Levant Ulusal was served

on all counsel of record and pro se parties by certified mail, return

receipt requested, facsimile transmission, electronic transmission

and/or hand delivery.


Timothy R. Ploch          via facsimile: (713) 862-7575 and
Linda M. Talbot           email: lawplochstaff@flash.net
Timothy R. Ploch, P.C.
730 N. Post Oak Rd., Ste 100
Houston, Texas 77024

Keith Livesay
Livesay Law Office
Brazos Suites No. 9
McAllen, TX. 78504
Via email to: RGVAppellateLaw@yandex.com

                                               /s/ DANIEL KISTLER




                                 24
                 CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief is computer generated, utilizing

Microsoft Word for Mac 2011. This brief contains 6,010 words, all in 14

pt. type, with the exception of footnotes, which are in 12 pt. type.

                                                   /s/ DANIEL KISTLER




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