                                                                                                ACCEPTED
                                                                                            01-15-00863-CV
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                      11/19/2015 7:49:13 PM
                                                                                      CHRISTOPHER PRINE
                                                                                                     CLERK

                           01-15-00863-CV

                         In the Court of Appeals                   FILED IN
                                                            1st COURT OF APPEALS
                 For the First District of Texas at Houston     HOUSTON, TEXAS
__________________________________________________________________
                                                            11/19/2015 7:49:13 PM
                                                                   CHRISTOPHER A. PRINE
                                                                          Clerk
                           ELIZABETH THOMAS,
                                        Appellant,
                                       v.

MERITAGE HOMES OF TEXAS, LLC f/k/a MERITAGE HOMES OF
TEXAS, L.P. f/k/a LEGACY MONTEREY HOMES, L.P.;
MTH LENDING GROUP, L.P. f/k/a MERITAGE LANDING SERVICE
PRIMARY RESIDENTIAL MORTGAGE, INC. d/b/a f/k/a
FLAGSTONE LENDING GROUP STEWART TITLE COMPANY;
MTH TITLE COMPANY;
                               Appellees.

              On appeal from the 61st Judicial District Court
                         of Harris County, Texas
               The Honorable Erin Lunceford, Presiding
                     Cause number: 2014-54729
__________________________________________________________________

        APPELLANT ELIZABETH THOMAS REPLY
       TO APPELLEE CODILIS & SAWIARSKI, PC’S
        OBJECTION TO APPELLATE MEDIATION
__________________________________________________________________

                    Attorney for Appellant
                    ELIZABETH THOMAS

                                                By:/s/James M. Andersen
                                                James M. Andersen Attorney
                                                Texas State Bar No. 01165850
                                                P. O. Box 58554
                                                Webster, Texas 77598-8554
                                                Tel. (218)488-2800
                                                Fax. (281)480-1190
                                                E-Mail:jandersen.law@gmail.com
                                            1
                                 01-15-00863-CV

                                 In the Court of Appeals
                      For the First District of Texas at Houston
__________________________________________________________________

                          ELIZABETH THOMAS,
                                                          Appellant,
                                       v.

MERITAGE HOMES OF TEXAS, LLC f/k/a MERITAGE HOMES OF TEXAS,
L.P. f/k/a LEGACY MONTEREY HOMES, L.P.; MTH LENDING GROUP, L.P.
f/k/a MERITAGE LANDING SERVICE PRIMARY RESIDENTIAL
MORTGAGE, INC. d/b/a f/k/a FLAGSTONE LENDING GROUP STEWART
TITLE COMPANY; MTH TITLE COMPANY
                                                            Appellees.

                   On appeal from the 61st Judicial District Court
                               of Harris County, Texas
                       The Honorable Erin Lunceford, Presiding
                           Cause Number: 2014-54729
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS

    On November 5, 2015, this court issued a Memorandum Order of Referral to Mediation

Appellant files this reply in response to Appellee’s objection to mediation on the grounds that

Appellee was not properly served and thus, this court lacks jurisdiction. This allegation is

without merit as shown by the following facts.

A. Service on Codilis & Stawiarski P.C., and its employee Mary M. Speidel

    On August 31, 2015, the Appellant moved before the Honorable Michael Landrum of the

113th Judicial District Court in Harris County, for a Temporary Restraining Order (“TRO”)

pursuant to Tex. R. Civ. P. 680, restraining the Appellee from attempting to conduct a

foreclosure sale upon Appellant property for the collection of a debt that was discharged in
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bankruptcy. The order was signed bond ordered and posted in the amount of $100.00 pursuant to

Tex. R. Civ. P. 684. An injunction hearing scheduled for September 11, 2015, at 1:30 p.m., in

the 61st District Court of Harris, Texas located at 201 Caroline Street, Houston, TX 77002,

Appellees was commanded to appear at that time and show cause, if any exist, why a temporary

injunction should not be issued against them. (CR 4.)

     On August 31, 2015, the Harris County District Clerk issued a citation for a writ of

execution pursuant to Tex. R. Civ. P. 687. Appellant Counsel thereinafter retained the services of

licensed process server Karl W. Waters of “Same Day Services” to serve Codilis & Stawiarski

P.C., and/or its employee Mary M. Speidel at their respective law offices with (i) Writ of

Execution for TRO (ii) the Temporary Restraining Order; and (iii) a copy of the Third Amended

Petition restraining their conduct of conducting the September 1, 2015, foreclosure sale. (CR. 6 )

.

      On September 1, 2015, licensed process server Mr. Karl W. Waters filed an affidavit of

drop service on Appellees employee Mary M. Speidel, for Writ, Temporary Restraining Order

and Petition” by with the District Clerk of Court pursuant to Tex. R. Civ. P. 689. (CR.6)

       On November 11, 2015, licensed process servicer Karl W. Waters of “Same Day Process

Service”, has since prepared another sworn to affidavit attesting to the fact that a drop service on

Appellees employee Mary M. Speidel, was necessary because after she identifying herself she

refused to except service after Mr. Waters made known his purpose Mr. Waters dropped all the

documents at her feet. See: Exhibit A.

     “Rule 103 of the rules of civil procedure provides, among other things, that the citation

shall be served by any person authorized by rule 103 by “delivering to the defendant, in person, a

true copy of the citation with the date of delivery endorsed thereon with a copy of the petition

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attached thereto.” Tex. R. Civ. P. 106(a)(1). Generally, a person within the jurisdiction has the

obligation to accept service of process when it is reasonably attempted. See Dosamantes v.

Dosamantes, 500 S.W.2d 233, 237 (Tex. Civ. App.—Texarkana 1973, writ dism’d).

    Under the Rule, Codilis & Stawiarski P.C., and its employee Attorney Mary M. Speidel are

held to have been personally served if they physically refused to accept the citation and said

citation is then deposited in an appropriate place in their presence or near them where they are

likely to find it, if they were also informed of the nature of the process and that service is being

attempted. Id.; see also Texas Industries, Inc. v. Sanchez, 521 S.W.2d 133, 135 (Tex.Civ.App.-

Dallas), writ ref’d n.r.e., 525 S.W.2d 870 (Tex.1975). Rogers v. Moore, 2006 WL 3259337, 1

(Tex. App.—Dallas, 2006). Appellees argument that this court lack jurisdiction because they

have not been personally or properly served fails.

   B. Codilis & Stawiarski P.C., has already Appeared in the Case

      September 1, 2015, Appellee Codilis & Stawiarski P.C., and its employee Attorney Mary

M. Speidel, complied with the Temporary Restraining Order (“TRO”) issued by Honorable

Michael Landrum of the 113th Judicial District Court in Harris County. Specifically, the TRO

restrained Codilis & Stawiarski P.C., and its employee Attorney Mary M. Speidel, and other

defendants from taking any action against the Appellant’s property. However Appellees failed

to appear before trial court the 61st Judicial District Court in Harris County on September 11,

2015, for scheduled injunction hearing.

     On September 11, 2015, trial Court, out of an abundance of caution, due to an inadvertent

scheduling error, issued another order for Appellee Codilis & Stawiarski P.C., to appear at an

injunction hearing rescheduled for September 18, 2015.



                                                 4
     On September 18, 2015, Attorney Jeffrey B. Hardaway of the law of Codilis & Stawiarski

P.C., made a general appearance at the injunction hearing; and before trial court gave notice that

he represented Codilis & Stawiarski P.C. By making a general appearance, the Appellee agreed

that trial court had the power to bind them by its actions and waived the right to raise any

jurisdictional defects (e.g., by claiming that the service of process was improper).

      On September 18, 2015, Attorney Jeffrey B. Hardaway’s sole argument before trial court

centered only on the sole issue that Appellee was not a proper party and sought to invoke trial

court’s jurisdiction by seeking trial court render a decision that (i) the law firm was not a proper

party and (ii) to dismiss the Law Firm from the pending suit.

       The ultimate focus of the inquiry is whether acts by the Appellee amounts to an implicit

recognition of the court's jurisdiction over the parties to decide a question other than the

existence of jurisdiction itself. See Smith, 672 S.W.2d at 617; accord Rojas v. Scharnberg, No.

01–9–01039, 2011 Tex.App. LEXIS 1975, at *7–8 (Tex.App.-Houston [1st Dist.] Mar. 17, 2011,

no pet.) (mem.op.).

     In the context of disputes over whether a defendant has waived prior or prospective

challenges to personal jurisdiction by special appearance through actions impliedly recognizing

the court's jurisdiction to decide broader questions (i.e., by making a “general appearance”), see

Tex. R. Civ. P. 120a(1). The Texas Supreme Court has distilled the inquiry into the following

alternative considerations:

      [A] party enters a general appearance when it (1) invokes the judgment of the court on any

question other than the court's jurisdiction, (2) recognizes by its acts that an action is properly

pending, or (3) seeks affirmative action from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d

302, 304 (Tex.2004) (per curiam) (citing Dawson–Austin v. Austin, 968 S.W.2d 319, 322

                                                 5
(Tex.1998)); see also St. Louis & San Francisco R.R. Co. v. Hale, 206 S.W. 75, 75 (Tex.1918).

(“It seems to be almost uniformly held that a general appearance is entered whenever the

defendant invokes the judgment of the court, in any way, on any question other than that of the

court's jurisdiction, without being compelled to do so by previous rulings of the court sustaining

the jurisdiction.”).

      The Appellees have satisfied all elements outlined by the Texas Supreme Court in

determining if they have made a general appearance in the case (1) clearly Appellee invoked the

judgment of the court when seeking a ruling that they were not the proper parties; (2) Appellee

recognize by their acts that an action was properly pending by invoking the court jurisdiction

seeking a dismissal from said action; and (3) Clearly Appellee invoking the court’s power for a

dismissal of the pending suit is an affirmative action. See: Exito Elecs. Co. v. Trejo, 142 S.W.3d

302, 304 (Tex.2004) (per curiam).

                                         PRAYER

        Appellant asks the Court to find that the Appellee was served with process in the

underlying case, which this court has jurisdiction over the Appellees and this appeal and for any

further relief this court deems proper and just.

                                                       Respectfully submitted,


                                                       By:/s/James M. Andersen
                                                       James M. Andersen Attorney
                                                       Texas State Bar No. 01165850
                                                       P. O. Box 58554
                                                       Webster, Texas 77598-8554
                                                       Tel. (218)488-2800
                                                       Fax. (281)480-4851
                                                       E-Mail:jandersen.law@gmail.com

                                 CERTIFICATE OF SERVICE

                                                   6
  Pursuant to Texas Rule of Appellate Procedure 9.5(e), the undersigned hereby certifies that a
true and correct copy of the foregoing Reply to Appellees Objection to Mediation was served on
the following parties vie eService on November 19, 2015:



Bryan Rutherford and Clayton E. Devin
MACDONALD DEVIN, PC.,
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attorneys for Appellees
Codilis & Stawiarski P.C.


Allan D. Goldstein
MORRIS, LENDIAS, HOLLRAH & SNOWDEN
1980 Post Oak Blvd., Suite 700
Houston, Texas 77056
Attorneys for non-appeal party Defendants in the underlying case:
Stewart Title Company, MTH Title Company.



                                                   By:/s/James M. Andersen
                                                   James M. Andersen Attorney




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