                                                                               ACCEPTED
                                                                            01-14-00870-cv
                                                                FIRST COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                      4/29/2015 2:45:22 PM
                                                                     CHRISTOPHER PRINE
                                                                                    CLERK
                    No. 01-14-00870-CV


                  In the Court of Appeals                 FILED IN
                                                   1st COURT OF APPEALS
                For the First District of Texas        HOUSTON, TEXAS
                       Houston, Texas              4/29/2015 2:45:22 PM
                                                   CHRISTOPHER A. PRINE
                                                           Clerk

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

                Mark Carter and Sally Carter,
                                             Appellees


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


AMENDED REPLY BRIEF OF APPELLANTS, ELISHAH SAWYERS,
    PAX CRATE & FREIGHT, INC., AND ROBIN SAWYERS



                                  Mr. Scott Rothenberg
                                  State Bar No. 17316750
                                  Law Offices of Scott Rothenberg
                                  2777 Allen Parkway, Suite 1000
                                  Houston, Texas 77019-2165
                                  scott@rothenberglaw.com
                                  telephone: (713) 667-5300
                                  telecopier: (713) 667-0052
                                  Counsel for Appellants,
                                  Robin Sawyers,
                                  Elishah Sawyers, and
                                  Pax Crate & Freight, Inc.

                 Oral Argument Requested
                                         Table of Contents


Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Objection to the Carters’ Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . 2

Reply to the Carters’ First “Issue Presented”. . . . . . . . . . . . . . . . . . . . . . . 3

Reply to the Carters’ Second “Issue Presented”. . . . . . . . . . . . . . . . . . . . 16

Absence of Elishah Sawyers’ Signature on the Certified Mail Receipt. . . 20

No Date and Time Shown that Process was Received for Service. . . . . . 22

No Proper Service on Pax Crate - Incorrect Name and No Return. . . . . . 23

No Citation on Elishah and Robin Sawyers - Incorrect Address. . . . . . . . 25

No Accurate Description of What Pleading was Served. . . . . . . . . . . . . . 26

No File Mark on Robin and Elishah Returns of Service = No Service. . . . 28

The Order Granting Default Judgment is Interlocutory. . . . . . . . . . . . . . . 32

Legally and Factually Insufficient Evidence Supports Damages. . . . . . . . 34

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36




                                                      -i-
                                  Index of Authorities



Cases                                                                                     Page

Americo Life, Inc. v. Myer,
     356 S.W.3d 496 (Tex. 2011) (per curiam). . . . . . . . . . . . . . . . . . . . . 9

Benefit Planners, L.L.P. v. RenCare, Ltd.,
     81 S.W.3d 855 (Tex.App.—
     San Antonio 2002, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Bentley v. Bunton,
      94 S.W.3d 568 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Blackburn v. Citibank (South Dakota) N.A.,
     2006 WL 1629770, No. 05-05-01082-CV
     (Tex. App.– Dallas 2006, no pet.) (mem. op.). . . . . . . . . . . . . . 29, 30

Chandler v. Reder, 635 S.W.2d 895
    (Tex. App.– Amarillo 1982, no writ). . . . . . . . . . . . . . . . . . . . . . . . . 33

Disco Machine of Liberal Co. v. Payton,
     900 S.W.2d 71 (Tex. App.–
     Amarillo 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Frazier v. Dikovitsky,
      144 S.W.3d 146 (Tex. App.–
      Texarkana 2004, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Garcia v. Kastner Farms, Inc.,
     774 S.W.2d 668 (Tex. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gilstrap v. Calley,
      2004 WL 2812881 (Tex. App.–
      Houston [14th Dist.] 2004, no pet.) (mem. op.). . . . . . . . . . . . . . . . 7, 8


                                               -ii-
Gonzales v. Terrell, 2015 WL 1735370,
    No. 01-14-00711-CV (Tex. App.–
    Houston [1st Dist.] April 14, 2015,
    no pet. hist.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Harris County v. Miller,
      576 S.W.2d 808 (Tex.1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Hone v. Hanafin,
     104 S.W.3d 884 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Houston Precast, Inc. v. McAllen Constr., Inc.,
     No. 13–07–135–CV, 2008 WL 4352636
     (Tex.App.— Corpus Christi Sept. 25, 2008, no pet.). . . . . . . . . . . . 18

Ins. Co. of State of Pennsylvania v. Lejeune,
      297 S.W.3d 254 (Tex. 2009) (per curiam). . . . . . . . . . . . . . . . . . . . 23

Jones v. Griege, 803 S.W.2d 486
     (Tex. App.– Dallas 1991, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . 32

Landagan v. Fife,
     No. 01-13-00536-CV, 2014 WL 2809813
     (Tex. App.– Houston [1st Dist.]
     June 19, 2014, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . 17, 26

Lefton v. Griffith, 136 S.W.3d 271
      (Tex. App.– San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . . . . 31

Master Capital Solutions Corp. v. Araujo,
     2015 WL 268876, No. 08-13-00327-CV
     (Tex. App.– El Paso, January 21, 2015, no pet. hist.). . . . . 17, 18, 19

McGraw–Hill, Inc. v. Futrell,
    823 S.W.2d 414 (Tex.App.—
    Houston [1st Dist.] 1992, writ denied). . . . . . . . . . . . . . . . . . . . . . . 18



                                               -iii-
Memorial Hospital of Galveston Cty. v. Gillis,
    741 S.W.2d 364 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Meshwert v. Meshwert,
    549 S.W.2d 383 (Tex. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Min v. Avila, 991 S.W.2d 495
      (Tex.App.– Houston [1st Dist.] 1999, no pet.). . . . . . . . . . . . . . . . . 16

N. Carolina Mut. Life Ins. Co. v. Whitworth,
     124 S.W.3d 714 (Tex.App.– Austin 2003, pet. denied). . . . . . . . . . 16

Nueces Cnty. Hous. Assistance, Inc. v. M & M Res. Corp.,
    806 S.W.2d 948 (Tex.App.– Corpus Christi 1991, writ denied). . . . 17

Palavan v. McCulley,
     2015 WL 1544520,
     No. 01-14-00604-CV (Tex. App.–
     Houston [1st Dist.] April 2, 2015,
     no pet. hist.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Perry v. Cohen,
      272 S.W.3d 585 (Tex. 2008) (per curiam). . . . . . . . . . . . . . . . . . . . . 9

Primate Constr, Inc. v. Silver,
     884 S.W.2d 151 (Tex. 1994) (per curiam). . . . . . . . . . . . . . 17, 22, 28

Quaestor Invs., Inc., v. State of Chiapas,
    997 S.W.2d 226 (Tex. 1999) (per curiam). . . . . . . . . . . . . . . . . 10, 11

Royal Surplus Lines Ins. Co. v. Samaria Baptist Church,
     840 S.W.2d 382 (Tex. 1992) (per curiam). . . . . . . . . . . . . . . . . . . . 26

RSL-3B-IL, Ltd. v. Prudential Ins. Co. of Am.,
     2014 WL 3107663, No. 01-13-00933-CV
     (Tex.App.– Houston [1st Dist.] 2014, pet. dism’d). . . . . . . . . . . . . . . . 9



                                                -iv-
Saenz v. Fid. & Guar. Ins. Underwriters,
    925 S.W.2d 607 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Stephenson v. Corporate Services, Inc.,
     650 S.W.2d 181 (Tex. App.–
     Tyler 1983, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Smith v. U.S. Auto. Acceptance 1995–1, Inc.,
     No. 05–98–00061–CV, 2000 WL 375249
     (Tex.App.— Dallas April 13, 2000, no pet.) (mem. op.). . . . . . . . . . 18

Uvalde Country Club v. Martin Linen Supply Co.,
     690 S.W.2d 884 (Tex. 1985) (per curiam). . . . . . . . 17, 20, 21, 25, 26

Verburgt v. Dorner,
     959 S.W.2d 615 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 12

Weeks Marine, Inc. v. Garza,
    371 S.W.3d 157 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wray v. Papp,
     434 S.W.3d 297 (Tex. App.–
     San Antonio 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Zepeda v. Giraud,
     880 S.W.2d 833 (Tex. App.–
     San Antonio 1994, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14



Statutes and Rules                                                                              Page

Tex. R. App. P. 4.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9

Tex. R. App. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Tex. R. App. P. 26.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13


                                                  -v-
Tex. R. App. P. 26.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

Tex. R. App. P. 29.5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. CIV. P. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

TEX. R. CIV. P. 99(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TEX. R. CIV. P. 99(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. R. CIV. P. 106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

TEX. R. CIV. P. 106(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TEX. R. CIV. P. 107(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. R. CIV. P. 107(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

TEX. R. CIV. P. 107(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

TEX. R. CIV. P. 107(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 31

TEX. R. CIV. P. 108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

TEX. R. CIV. P. 108a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

TEX. R. CIV. P. 124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. R. CIV. P. 165a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. CIV. P. 306a(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 9

TEX. R. CIV. P. 306a(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9




                                                  -vi-
                          No. 01-14-00870-CV


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


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

                      Mark Carter and Sally Carter,
                                                   Appellees


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


  AMENDED REPLY BRIEF OF APPELLANTS, ELISHAH SAWYERS,
      PAX CRATE & FREIGHT, INC., AND ROBIN SAWYERS




TO THE HONORABLE FIRST COURT OF APPEALS:

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

Sawyers, file this, their Amended Reply Brief of Appellants in the above-

captioned and numbered appeal. In support thereof, Elishah Sawyers, Pax

Crate & Freight, Inc., and Robin Sawyers would respectfully show this

Honorable Court as follows:
               Objection to the Carters’ Statement of Facts

      On page 5 of their Brief of Appellees, the Carters incorrectly tell this

Court “The Appellants acknowledge that they timely e-filed answers to the

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

trial court’s record.” Brief of Appellees at 5.

      The undersigned has not found any representation by Appellants that

they “timely e-filed answers” on August 4, 2014. The Sawyers testified that

they “believed that” an answer had been e-filed on behalf of the three

defendants on August 4, 2014, because a legal assistant told them that she

had e-filed the answer on August 4, 2014. Sworn Affidavits of Elishah and

Robin Sawyers at 2-3. A representation that the Sawyers “believed that” the

answer had been e-filed is not the same as a representation that the answer

was, in fact, e-filed.

      On page 5 of their brief, the Carters tell this Court that “[t]he notice of

submission advised that the motion would be presented on September 11,

2014 without the necessity of an oral hearing unless demand for one was

made.” (emphasis added). However, the September 4, 2014 notice of

submission states that the “Motion for Default Judgment” (which was filed on

August 21, 2014, CR 36-37) would be presented to the Court for ruling and


                                       -2-
not the “Amended Motion for Default Judgment” that was filed on September

3, 2014. CR 49, 43-44.

      This is not a distinction without a difference. The Motion for Default

Judgment expressly admits that the damages sought are unliquidated, and

therefore “requests a hearing to establish the amount of damages and a court

reporter to record the proceedings.” CR 36. The Amended Motion for Default

Judgment, which was filed with the trial court but which was not submitted to

the trial court– CR 43-44, 49– omits the Carters’ admission that the damages

sought are unliquidated. Thus, the only motion submitted to the trial court

admitted that the Carters’ damages were unliquidated and required proof.

              Reply to the Carters’ First “Issue Presented”

      In their first “issue presented,” the Carters contend that this Court lacks

jurisdiction over this appeal because the Sawyers’ and Pax Crate’s notice of

appeal was untimely and their notice of restricted appeal is both untimely and

impermissible. Brief of Appellees at 8.

      The Carters presented these issues for the Court’s consideration in

their November 17, 2014 motion to strike the Sawyers’ and Pax Crate’s notice

of appeal, in their March 18, 2015 motion to strike the Sawyers’ and Pax

Crate’s notice of appeal, and their April 7, 2015 motion to strike the Sawyers’


                                       -3-
and Pax Crate’s notice of restricted appeal. The Sawyers and Pax Crate ask

the Court to take judicial notice of those three motions, which are contained

in this Court’s file in this appeal.

      This Court denied the Carters’ jurisdictional complaints in its orders

dated November 24, 2014 (stating, in relevant part, “Appellees Marc and Sally

Carter’s motion to strike appellant’s notice of appeal is DENIED.”), and April

23, 2015 (stating, in relevant part, “Please be advised that the Court today

DENIED Appellee’s Motion to Strike in the above-referenced cause.”). The

Sawyers and Pax Crate ask the Court to take judicial notice of those two

orders, which are contained in this Court’s file in this appeal.

      The Carters’ Brief of Appellee offers no new reasons for striking either

the Sawyers and Pax Crate’s notice of appeal or their notice of restricted

appeal.

      The previously-filed Sworn Affidavits of Elishah P. Sawyers, Robin

Sawyers, and Rita Curtis contain reasonable explanations why the October

27, 2014 notice of appeal was not filed within thirty (30) days of the date that

the trial court signed the September 12, 2014 “Order Granting Default

Judgment.” To refresh the Court’s recollection, the Sawyers and Pax Crate

informed the Court through sworn affidavits that the first notice of any that


                                       -4-
Elishah Sawyers, Robin Sawyers, Rita Curtis and Pax Crate & Freight, Inc.,

had regarding the signing of the Order Granting Default Judgment was

received by Elishah Sawyers by telephone and email on October 22, 2014.

      As a result of all of the foregoing, there are three sequential inquiries

that are appropriate for this Court.

      First, is the September 12, 2014 “Order Granting Default Judgment” a

final, appealable judgment, or an interlocutory order? This Court’s answer to

that question directly impacts its jurisdiction over this appeal.

      If the September 12, 2014 “Order Granting Default Judgment” is

determined to be an interlocutory order, then the correct disposition would be

to dismiss both the original appeal (pursuant to the October 27, 2014 notice

of appeal), and the restricted appeal (based on the March 27, 2015 notice of

restricted appeal) for lack of a final, appealable judgment. See Gonzales v.

Terrell, 2015 WL 1735370, No. 01-14-00711-CV (Tex. App.– Houston [1st

Dist.] April 14, 2015, no pet. hist.) (mem. op.); Palavan v. McCulley, 2015 WL

1544520, No. 01-14-00604-CV (Tex. App.– Houston [1st Dist.] April 2, 2015,

no pet. hist.) (mem. op.). This would allow the Sawyers and Pax Crate to file

timely and appropriate post-judgment motions in the trial court without any

concern for violating Texas Rule of Appellate Procedure 29.5(b) or otherwise


                                       -5-
infringing upon this Court’s appellate jurisdiction.

      If the September 12, 2014 “Order Granting Default Judgment” is

determined by this Court to be a final, appealable judgment, then the next

question is whether or not the Sawyers and Pax Crate provided this Court with

a “reasonable explanation” regarding the late filing of their October 27, 2014

notice of appeal. If they did, then the March 27, 2015 Notice of Restricted

Appeal is neither necessary or appropriate, and should be properly dismissed.

      The Carters contend that the Sawyers and Pax Crate cannot provide a

“reasonable explanation” for late-filing a notice of appeal if they could have,

but did not, take advantage of the procedures set forth in Texas Rule of

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

306a(5). Brief of Appellees at 8, 10-15. This argument is flawed for several

different but related reasons.

      First, neither Appellate Rule 4.2 nor Rules 306a(4) and (5) is couched

in mandatory language. That is, neither of the rules states that a litigant who

receives late notice of the signing of a judgment must or shall take

advantage of the procedures set forth therein.

      Second, the Carters’ Brief of Appellees contains misleading language.

On the bottom of page 11, the Carters state with underlined emphasis:


                                       -6-
“Compliance with the provisions of rule 306a is a jurisdictional prerequisite.”

They cite to Memorial Hospital of Galveston Cty. v. Gillis, 741 S.W.2d 364,

365 (Tex. 1987), as authority for that proposition. Brief of Appellees at 11.

      What Gillis actually says is that if a trial court dismisses a lawsuit for

want of prosecution and a litigant files a motion to reinstate under Rule 165a,

that motion must be filed in the trial court within thirty days after the date of

judgment or within the appropriate time period under Rule 306a(4) if the

proper showing is made in the trial court to entitle the litigant to Rule 306a(4)

relief: “Compliance with the time periods prescribed by these rules is a

jurisdictional prerequisite.   Unless a party establishes in the manner

prescribed by the rule that he had no notice or knowledge of the judgment,

the general rule prevails: a trial court's power to reinstate a cause after

dismissal expires thirty days after the order of dismissal is signed. Harris

County v. Miller, 576 S.W.2d 808 (Tex.1979).” Mem'l Hosp. of Galveston

Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987). The appeal before this Court

has nothing to do with motions to reinstate pursuant to Texas Rule of Civil

Procedure 165a. Therefore, Gillis simply does not apply.

      The Carters cite Gilstrap v. Calley, 2004 WL 2812881 (Tex. App.–

Houston [14th Dist.] 2004, no pet.) (mem. op.), for the proposition that a


                                       -7-
litigant’s failure to take advantage of the procedure afforded under Texas Rule

of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a(4) and (5)

automatically disqualifies that litigant from receiving an extension of time

pursuant to Texas Rule of Appellate Procedure 26.3 as a matter of law. Brief

of Appellees at 13. But that is not what Gilstrap says.

      First, in Gilstrap, the appellant filed her notice of appeal fourteen months

after the deadline for doing so, and not within the fifteen day window after

signing of the judgment. “This is an attempted appeal from a judgment,

signed June 11, 2003. No motion for new trial was filed. Appellant's notice

of appeal was filed on October 4, 2004.” Opinion at 1. Thus, even if the

Gilstrap court were inclined to do so, it could not apply the 15-day implied

request for extension of time set forth in Verburgt v. Dorner, 959 S.W.2d 615,

616 (Tex. 1997), as this court can. Opinion at 1. This fact alone establishes

that Gilstrap should not be relied upon as support for the Carters’ position in

this appeal.

      Second, the relief afforded under Rule 306a(4) and Rule 306a(5) would

have done Gilstrap no good given that she filed her notice of appeal fourteen

months too late. Therefore, the Gilstrap court’s discussion of Rule 306a(4)

is nothing more than mere dictum and should not be relied upon.


                                       -8-
      This narrow reading of Gilstrap is supported by the Supreme Court of

Texas’ recent string of repeated pronouncements that appellate courts should

construe the procedural rules in such a manner as to reach the merits of

appeals whenever possible. Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.

2008) (per curiam). See also Weeks Marine, Inc. v. Garza, 371 S.W.3d 157,

162 (Tex. 2012); Americo Life, Inc. v. Myer, 356 S.W.3d 496, 498 (Tex. 2011)

(per curiam).

      The Sawyers and Pax Crate provided this Court with a “reasonable

explanation” for why they did not file their notice of appeal within thirty days

of September 12, 2014. They did so by sworn affidavit testimony establishing

that they received no notice of the September 12, 2014 “Order Granting

Default Judgment” until October 17, 2014.

      A “reasonable explanation” is “any plausible statement of
      circumstances indicating that failure to file within the [specified]
      period was not deliberate or intentional, but was the result of
      inadvertence, mistake or mischance.” Hone v. Hanafin, 104
      S.W.3d 884, 886 (Tex. 2003) (quoting Meshwert v. Meshwert, 549
      S.W.2d 383, 384 (Tex. 1977)). We apply a liberal standard of
      review, under which “any conduct short of deliberate or intentional
      noncompliance qualifies as inadvertence, mistake or mischance.”
      Id. at 886 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d
      668, 670 (Tex. 1989)).

RSL-3B-IL, Ltd. v. Prudential Ins. Co. of Am., 2014 WL 3107663, at *2, No.

01-13-00933-CV (Tex.App.– Houston [1st Dist.] 2014, pet. dism’d). The

                                      -9-
Carters have attempted to transmute this standard into requiring the Sawyers

and Pax Crate providing a reasonable explanation for why they did not seek

trial court relief under Texas Rule of Appellate Procedure 4.2 or Texas Rule

of Civil Procedure 306a. The undersigned has found no reported authority

requiring appellants to assume or satisfy such a burden under the procedural

circumstances presented in this appeal.

      The Carters also attack the Sawyers’ and Pax Crate’s notice of

restricted appeal. Only one set of circumstances exists that would make it

necessary for the Court to adjudicate the restricted appeal that was perfected

from the “Order Granting Default Judgment.”

      If this Court: (a) finds that the September 12, 2014 “Order Granting

Default Judgment” is a final, appealable judgment and (b) this Court finds that

the Sawyers and Pax Crate did not provide this Court with a “reasonable

explanation” regarding the late filing of their October 27, 2014 notice of

appeal, then the March 27, 2015 Notice of Restricted Appeal would be both

necessary and appropriate.

      In seeking to strike the Sawyers’ and Pax Crate’s notice of restricted

appeal, the Carters rely upon Quaestor Invs., Inc., v. State of Chiapas, 997

S.W.2d 226, 227 (Tex. 1999) (per curiam). They rely upon Quaestor as


                                     -10-
authority for the proposition that “the six-month time limit” for the filing of a

restricted appeal “is mandatory and jurisdictional.” Brief of Appellees at 9.

The Quaestor opinion plainly does say that on its face.

      However, Quaestor is readily distinguishable from the facts presented

in this case. In Quaestor, the appellant sought to file its restricted appeal

(then called a “writ of error” under the existing procedures), more than eight

months after the six-month period for the filing of a restricted appeal/writ of

error had expired. Of course, no procedural mechanism existed at the time

of the Quaestor opinion– or even at the present time– to extend the deadline

for filing a restricted appeal/writ of error by eight months after the six-month

period for filing such an appeal had elapsed.

      But that is not what we have in this case. In this case, the Sawyers and

Pax Crate filed their notice of restricted appeal within fifteen days of the

expiration of the six-month period set forth in Texas Rule of Appellate

Procedure 26.1(c). Therefore, the Sawyers and Pax Crate have available to

them the implied motion for extension of time described by the Supreme Court

of Texas in Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). As such,

this case is procedurally far closer to Wray v. Papp, 434 S.W.3d 297 (Tex.

App.– San Antonio 2014, no pet.), than it is to Quaestor.


                                      -11-
      In Wray, the appellant filed a restricted appeal on June 14, 2013– six

months and one day after the final divorce decree had been signed. The

court of appeals noted that Tex. R. App. P. 26.3 permits an extension of time

to file a notice of restricted appeal if the notice is filed within fifteen days after

the deadline for filing a notice of restricted appeal. The court further noted

that “[a] motion for extension of time is implied when an appellant acting in

good faith files a notice of appeal beyond the time allowed by Rule 26.1, but

within the fifteen-day grace period.” Wray v. Papp, 434 S.W.3d 297, 299

(Tex. App.– San Antonio 2014, no pet.) (citing Verburgt v. Dorner, 959

S.W.2d 615, 617 (Tex.1997)).            After determining that the appellant’s

explanation for the late filing was satisfactory, the Court concluded that

Wray’s notice of appeal was timely-filed within the extension period, and

proceeded to adjudicate the merits of the appeal.

      This Court disposed of jurisdictional issues raised by the Sawyers’ and

Pax Crate’s late-filing of the October 27, 2014 notice of appeal when this

Court overruled the Carters’ November 17, 2014 motion to strike that notice

of appeal as untimely in an order dated November 24, 2014.

      The Carters’ present appellate counsel, Mr. Tough, has been counsel

of record in the case since January 15, 2015. However, it was not until more


                                         -12-
than two months after that date that Mr. Tough saw fit to reassert the

jurisdictional issue that had been put to rest by this Court’s November 24,

2014 order– more than three months earlier. Perhaps coincidentally, Mr.

Tough just happened to resurrect and reassert that jurisdictional complaint a

mere six days after the expiration of the six-month period after the trial court

signed its “Order Granting Default Judgment.”

      Simply put, if the undersigned had been aware that the Carters’ counsel

intended to belatedly attack this Court’s November 24, 2014 order overruling

the Carter’s motion to strike the October 27, 2014 notice of appeal as

untimely-filed, the undersigned would have filed the Notice of Restricted

Appeal within the time period set out in Texas Rule of Appellate Procedure

26.1(c), assuming– and this is a big assumption– that time period has even

begun to run in this case.

      The Carters’ reliance upon Zepeda v. Giraud, 880 S.W.2d 833, 834-35

(Tex. App.– San Antonio 1994, no pet.)– Brief of Appellees at 9-10– is

similarly misplaced. The Carters include a parenthetical description of what

occurred in Zepeda after the citation to that case on page 10 of their brief.

The Carters state in their explanatory parenthetical as follows: “An appeal by

writ of error from a default judgment in a civil suit was dismissed for want of


                                      -13-
jurisdiction because appellant had previously perfected an ordinary appeal,

which was dismissed by the court and not abandoned by appellant.” Brief of

Appellees at 10.

      The above-referenced language does not appear in the Zepeda opinion.

But more important than that is a fact that was present in Zepeda that may,

or may not, be present in this case.

      In Zepeda, the court of appeals was very careful to point out that the

appellant “timely perfected an ordinary appeal from the default judgment.”

Zepeda v. Giraud, 880 S.W.2d 833, 834 (Tex. App.– San Antonio 1994, no

pet.). Of course, if the appellant in Zepeda timely perfected an ordinary

appeal, there would be no need whatsoever for the filing of a restricted

appeal.

      In the present case, the Carters have contended that the Sawyers’ and

Pax Crate’s original notice of appeal from their ordinary appeal should be

dismissed because it was untimely filed. Brief of Appellants at 8, 10-15.

      The Sawyers and Pax Crate did not file their March 27, 2015 notice of

restricted appeal because they want this Court to adjudicate both their

ordinary appeal and the restricted appeal. In a perfect world, this Court would

find that the trial court’s September 12, 2014 “Order Granting Default


                                       -14-
Judgment” is an interlocutory order and not a final, appealable judgment. If

this Court were to issue such a ruling, then the Sawyers and Pax Crate would

be free to file further motions with the trial court, including but not limited to

timely post-judgment motions. It is only in the event that this Court does not

make that finding (interlocutory order vs. final, appealable judgment) that the

ordinary appeal perfected on October 27, 2014 would need to be adjudicated

by this Court.

      Further, the restricted appeal would only need to be adjudicated if this

Court: (1) decides not to dismiss this appeal on the ground that the

September 12, 2014 “Order Granting Default Judgment” is a non-appealable

interlocutory order; and (2) finds that the Sawyers and Pax Crate failed to

provide a reasonable explanation for the late-filing of their October 27, 2014

notice of appeal.

      In order to determine whether the Sawyers’ and Pax Crate’s notice of

appeal was untimely filed, this Court must first determine whether or not a

final and appealable judgment was ever signed by the trial court. For if it was

not– and the September 12, 2014 “Order Granting Default Judgment” is an

interlocutory order– then the Sawyers’ and Pax Crate’s notice of appeal and

notice of restricted appeal could never be late. This is true because the


                                       -15-
deadlines for filing a notice of appeal and the deadline for filing a notice of

restricted appeal are both tethered to signing of a final, appealable judgment,

which has not yet occurred in the underlying case.

            Reply to the Carters’ Second “Issue Presented”

      On pages 15 and 16 of their Brief of Appellees, the Carters provide this

Court with a lengthy string citation to opinions– some of which are a quarter-

century old– from other intermediate courts of appeals. In the aggregate,

these cases arguably support a standard of review in default judgment cases

that ‘close enough is good enough to support entry of a default judgment.’

But this Court knows that is not the correct standard of review for service of

process in cases disposed by no-answer default.

      The Sawyers and Pax Crate rely upon this Court’s statement of the

applicable standard of review from less than one year ago:

      A trial court cannot render a judgment against a defendant unless
      he has been properly served, he has accepted or waived service
      of process, or he has made an appearance. See Tex.R. Civ. P.
      124; Sozanski, 394 S.W.3d at 604. There is no presumption of
      proper service on direct appeal. Sozanski, 394 S.W.3d at 604;
      Min v. Avila, 991 S.W.2d 495, 499 (Tex.App.– Houston [1st Dist.]
      1999, no pet.). Instead, the record must affirmatively show strict
      compliance with the rules for service of process. Sozanski, 394
      S.W.3d at 604; N. Carolina Mut. Life Ins. Co. v. Whitworth, 124
      S.W.3d 714, 719 (Tex.App.– Austin 2003, pet. denied) (“[A]
      default judgment should stand only if the plaintiff has strictly
      complied with all requirements for service.”). Failure to

                                     -16-
     affirmatively show strict compliance with the rules of civil
     procedure governing service of citation renders the attempted
     service of process “invalid and of no effect.” Uvalde Country Club
     v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per
     curiam); Nueces Cnty. Hous. Assistance, Inc. v. M & M Res.
     Corp., 806 S.W.2d 948, 949 (Tex.App.– Corpus Christi 1991, writ
     denied) (“The failure of the record to show strict compliance with
     the rules governing issuance, service, and return of citation will
     generally void attempted service and require the default judgment
     to be set aside.”); see also Primate Constr, Inc. v. Silver, 884
     S.W.2d 151, 152 (Tex. 1994) (per curiam) (stating that return of
     service is not “a trivial, formulaic document”). “Virtually any
     deviation from the statutory requisites for service of process will
     destroy a default judgment.” Frazier v. Dikovitsky, 144 S.W.3d
     146, 149 (Tex.App.– Texarkana 2004, no pet.).

Landagan v. Fife, No. 01-13-00536-CV, 2014 WL 2809813, at *3 (Tex. App.–

Houston [1st Dist.] June 19, 2014, no pet.) (mem. op.).

     The Carters contend that the Sawyers’ admission that they “thought”

they had timely e-filed an answer on August 4, 2014 for the three Appellants

creates an “irrefutable inference that Appellants, without stating in so many

words, had been served and did not dispute the propriety of service on them.”

Brief of Appellees at 17. Well-established Texas law holds otherwise.

     In Master Capital Solutions Corp. v. Araujo, 2015 WL 268876, No. 08-

13-00327-CV (Tex. App.– El Paso, January 21, 2015, no pet. hist.), the

plaintiffs obtained a default judgment against Master Capital Solutions Corp.

(“Master Capital”). Master Capital filed a motion for new trial in which it


                                    -17-
acknowledged that it “was served, but did not timely answer.” Opinion at 1.

The Appellees contended that Master Capital “waived its complaint of

defective service because it judicially admitted in its motion for new trial and

at the hearing on the motion that it was duly served.” Opinion at 3.

      The El Paso Court of Appeals disagreed:

             Here, Master Capital did not waive its complaint concerning
      defective service by conceding the issue because. . . .Master
      Capital admitted receipt of the lawsuit, not that it was “duly
      served.” Although Master Capital stated in its motion for new trial
      that it was “served,” it did not admit any of the underlying facts
      that would show that it was served in accordance with the rules
      of civil procedure or applicable law. . . . Houston Precast, Inc. v.
      McAllen Constr., Inc., No. 13–07–135–CV, 2008 WL 4352636, at
      *2 n. 21 (Tex.App.— Corpus Christi Sept. 25, 2008, no
      pet.)(counsel's statement at hearing that his client “was served on
      November 2nd” was not a judicial admission that defendant was
      duly served); Benefit Planners, L.L.P. v. RenCare, Ltd., 81
      S.W.3d 855, 861 (Tex.App.— San Antonio 2002, pet.
      denied)(statements in affidavit that agent for service of process
      “was served with process” and “was personally served” were not
      judicial admissions of proper service); Smith v. U.S. Auto.
      Acceptance 1995–1, Inc., No. 05–98–00061–CV, 2000 WL
      375249, at *1–*2 (Tex.App.— Dallas April 13, 2000, no pet.)
      (statements in affidavit that defendant “was served” were not
      judicial admissions of proper service because defendant did not
      admit to any of the underlying facts that would show service
      complied with the rules); McGraw–Hill, Inc. v. Futrell, 823 S.W.2d
      414, 417–18 (Tex.App.— Houston [1st Dist.] 1992, writ
      denied)(statements in motion removing case to federal court that
      defendant “was served with process” and received a copy of the
      initial pleading were not judicial admissions of being “duly
      served”).


                                      -18-
              The statements made in Master Capital's motion for new
      trial, in Ferrice's affidavit, and at the hearing on the motion reflect
      actual knowledge of the pendency of the suit, and the actions
      taken by Ferrice on Master Capital's behalf were consistent with
      that knowledge. But these actions are irrelevant in the absence of
      proper service. This is because actual notice to a defendant,
      without proper service, is not sufficient to convey upon the court
      jurisdiction to render a default judgment. Wilson, 800 S.W.2d at
      836–37. Accordingly, the trial court erred in granting a default
      judgment against Master Capital.

Master Capital Solutions Corp. v. Araujo, 2015 WL 268876, No. 08-13-00327-

CV at *4 (Tex. App.– El Paso, January 21, 2015, no pet. hist.).

      The facts in the present case are even more favorable to the Sawyers

and Pax Crate than the facts present in Master Capital. As quoted by the

Carters, the Sawyers testified only that they “found out” that the Carters “filed

the Lawsuit through their attorney.” Brief of Appellees at 17-18. This is not

an admission of having been “duly served” in compliance with applicable

Texas Rules of Civil Procedure, or even of having been served at all. The

quoted-language is equally consistent with a trip down to the courthouse and

discovering the lawsuit in question as it is a representation of having been

duly served in accordance with all applicable rules. In case any doubt exists,

the Sawyers and Pax Crate deny that they were duly served in accordance

with the applicable Texas Rules of Civil Procedure.

      Based upon the foregoing, the Sawyers and Pax Crate did not waive

                                       -19-
any contention regarding inadequacy of service in this appeal.

 Absence of Elishah Sawyers’ Signature on the Certified Mail Receipt

      In the second issue on appeal, the Sawyers and Pax Crate informed the

Court that valid certified mail service on Elishah Sawyers is not demonstrated

by the record in this appeal. This is so because Elishah Sawyers did not sign

the certified mail green card that was addressed to him. Brief of Appellants

at 24, CR 34. Texas Rule of Civil Procedure 107(c) states that when a

citation is served by registered or certified mail, the return by the officer “must

also contain the return receipt with the addressee’s signature.” Tex. R. Civ.

P. 107(c).

      In response, the Carters suggest that the trial court and this Court may

“presume” that Robin Sawyers “intended to sign as her husband’s agent.”

Brief of Appellees at 19. However, such a presumption is prohibited both as

a matter of well-established Texas law, and as a matter of the record in this

appeal.

      In contrast to the usual rule that presumptions will be made in support

of a judgment, when examining a default judgment, courts accord no

presumption of valid issuance, service, or return of citation. Uvalde Country

Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per


                                       -20-
curiam).

      Based upon the foregoing, the Carters’ invitation to this Court to

presume that Robin Sawyers signed “as her husband’s agent” is improper as

a matter of law.

      Three additional reasons negate any possible presumption that Robin

Sawyers signed “as her husband’s agent.” First, the record contains no

evidence whatsoever that on the date of the alleged service by certified

mail Robin Sawyers was married to Elishah Sawyers.                    No such

representation is found in the Carters’ live pleading or the documents

attached thereto, or otherwise in the trial court record. Second, the certified

mail citation in this appeal does not purport to serve Elishah Sawyers, “by and

through his agent, Robin Sawyers.” CR 32. It purports to serve Elishah

Sawyers, individually, by certified mail. CR 32. Finally, when service is

performed by certified mail, Texas Rule of Civil Procedure 107(c) requires that

the officer’s return contain “the return receipt with the addressee’s signature.”

The rule does not say, “the signature of the addressee or his agent.”

      The Carters contend that Elishah Sawyers’ failure to dispute “his wife’s

authority to sign as his authorized agent” somehow turns invalid service into

valid service. That argument incorrectly turns the applicable burden of proof


                                      -21-
on its head. The party prevailing in the trial court bears the burden to prove

service of process was proper. Primate Constr., Inc. v. Silver, 884 S.W.2d

151, 153 (Tex. 1994) (per curiam).            If the record fails to show strict

compliance with the applicable requirements relating to the issuance, service,

and return of citation, the attempted service of process is invalid and of no

effect. Wilson, 800 S.W.2d at 836. Thus, Elishah Sawyers’ alleged failure to

dispute “his wife’s authority to sign as his authorized agent” is irrelevant for

purposes of establishing the Carters’ failure to establish proper service on

Elishah Sawyers by certified mail.

   No Date and Time Shown that Process was Received for Service

      In the third issue on appeal, the Sawyers and Pax Crate informed the

Court that valid certified mail service was not obtained on Elishah Sawyers or

Robin Sawyers because the two returns of service addressed to them fail to

state on their face the date and time that the process was received for service

as expressly required by Texas Rule of Civil Procedure 16 and 107(b)(4).

Brief of Appellants at 26-27. CR 32-34.

      The Carters respond that based upon other documents in the clerk’s

record, “[i]t is irrefutable that the clerk delivered the service documents to the

US Mail Service between July 11th and 14th.” Brief of Appellant at 20.


                                       -22-
      The Carters cite to no authority whatsoever to demonstrate adequacy

of service through application of this so-called “irrefutable presumption.” The

Sawyers and Pax Crate cite to the plain wording of Texas Rule of Civil

Procedure 16, Texas Rule of Civil Procedure 107(b)(4), and the Supreme

Court of Texas’ opinion in Ins. Co. of State of Pennsylvania v. Lejeune, 297

S.W.3d 254, 256 (Tex. 2009) (per curiam) to demonstrate the inadequacy of

the Carters’ alleged service on Elishah Sawyers and Robin Sawyers by

certified mail in this case (“Here, although Lejeune served Insurance Co. by

certified mail, the record shows that the return of citation lacks the required

notation showing the hour of receipt of citation. Lejeune's default judgment,

therefore, cannot stand.”).

   No Proper Service on Pax Crate - Incorrect Name and No Return

      In the fourth and fifth issues on appeal, the Sawyers and Pax Crate

informed the Court that valid service was not obtained on Pax Crate & Freight,

Inc., because no return of service demonstrates service on any defendant

other than Elishah Sawyers or Robin Sawyers, and the only citation

addressed to any defendant other than Elishah Sawyers and Robin Sawyers

is directed to Pax Crate & Freight, and not Pax Crate & Freight, Inc. Brief of

Appellants at 27-30.


                                     -23-
      In response, the Carters rely upon Stephenson v. Corporate Services,

Inc., 650 S.W.2d 181 (Tex. App.– Tyler 1983, writ ref’d n.r.e.). On page 21

of their Brief of Appellees, the Carters purport to quote language from the

Stephenson opinion. The language purportedly quoted does not exist in the

Stephenson opinion.

      Even if the quoted-language did appear therein, Stephenson is plainly

distinguishable from the facts presented in this case. In Stephenson, the

petition and citation were both addressed to the proper defendant: Franklin

National Corp., Ltd. The return of service showed service upon Franklin

National Corp (without no “Ltd.”). The Stephenson court held that where the

citation and petition were addressed to the properly named defendant, it was

of no consequence that the return of service failed to include “Ltd.,” at the end

of the corporate defendant’s name. Stephenson v. Corporate Services, Inc.,

650 S.W.2d 181, 183 (Tex. App.– Tyler 1983, writ ref’d n.r.e.).

      That is entirely different than the situation presented in this case, where

the live pleading refers to Elishah Sawyers, individually and d/b/a PAX

CRATE & FREIGHT, INC.– CR 3– along with PAX CRATE & FREIGHT, INC.,

CR 4, the citation is addressed to Pax Crate & Freight (but not Pax Crate &

Freight, Inc.)– CR 35, and the return of service shows service only on Elishah


                                      -24-
Sawyers (with no reference at all to either Pax Crate & Freight or Pax Crate

& Freight, Inc.). CR 35. The errors and inconsistencies throughout the live

pleading, the citation and the return of service plainly create confusion as to

who was sued, in what capacity, who was served, and in what capacity. In

that regard, this case is factually closer to Uvalde Country Club v. Martin

Linen Supply Co., 690 S.W.2d 884, 884 (Tex. 1985), wherein the Supreme

Court of Texas invalidated a default judgment because the petition identified

the registered agent as “Henry Bunting, Jr.,” but the citation and return

referred to “Henry Bunting.” The Sawyers’ and Pax Crate’s fourth and fifth

issues should be sustained.

    No Citation on Elishah and Robin Sawyers - Incorrect Address

      In the sixth issue on appeal, the Sawyers and Pax Crate informed the

Court that valid service was not obtained on Robin Sawyers and Elishah

Sawyers because the return of service contained an incorrect zip code in the

Sawyers’ address. Brief of Appellants at 30-31.

      In response, the Carters cite to a 2006 Fort Worth Court of Appeals

memorandum opinion holding that a minor variation in the address for service

contained in the return of service is insufficient to invalidate service. Brief of

Appellees at 24.


                                       -25-
      In venturing back 9 years and 250 miles to the north-northwest, the

Carters ignored an opinion from this very Court less than one year ago:

      A typographical error concerning the defendant's address in the
      return of service does not constitute strict compliance with the
      rules governing service and is grounds for setting aside a default
      judgment. See Royal Surplus Lines Ins. Co. v. Samaria Baptist
      Church, 840 S.W.2d 382, 383 (Tex. 1992) (per curiam) (affirming
      court of appeals' reversal of default judgment when citation was
      sent to “1201 Bassie” when registered agent's correct address
      was “1201 Bessie”); see also Uvalde Country Club, 690 S.W.2d
      at 885 (holding no strict compliance when original petition stated
      entity could be served by serving its registered agent “Henry
      Bunting, Jr.” and return of service stated that sheriff served
      “Henry Bunting”).

Landagan v. Fife, No. 01-13-00536-CV, 2014 WL 2809813, at *4 (Tex. App.–

Houston [1st Dist.] June 19, 2014, no pet.) (mem. op.).

      Based upon this Court’s opinion in Landagan, valid service was not

obtained on Robin Sawyers and Elishah Sawyers. The address on the return

of service was incorrect due to the presence of an incorrect zip code. Brief

of Appellants at 30-31, CR 32-33. Accordingly, the Sawyers’ and Pax Crate’s

sixth issue on appeal should be sustained.

        No Accurate Description of What Pleading was Served

      In the seventh and eighth issues on appeal, the Sawyers and Pax Crate

establish that valid service was not obtained because “an accurate description

of what pleading was served” is absent from all three returns of service in

                                     -26-
violation of Texas Rule of Civil Procedure 107(b)(3), and absent from all three

citations in violation of Texas Rule of Civil Procedure 99(b)(4).

      In response, the Carters inexplicably tell this Court that “the citation,

return of service, and petition provide the required description of the pleading

served as “Plaintiffs’ Original Petition and Request for Permanent Injunction.”

Brief of Appellees at 25.

      The certified mail citation addressed to Elishah Sawyers plainly states

that the pleading accompanying it is “Plaintiff’s ORIGINAL PETITION”

(capitalized emphasis in original), and not “Plaintiffs’ Original Petition and

Request for Permanent Injunction.” CR 32. The same is true of the certified

mail citation addressed to Robin Sawyers. CR 33. The citation addressed to

“Pax Crate & Freight” (and not Pax Crate & Freight, Inc.), expressly states

that “Plaintiff’s Original Petition” accompanies the citation, and not “Plaintiffs’

Original Petition and Request for Permanent Injunction.”           CR 35.     The

Sheriff’s Return pertaining to alleged service on Elishah Sawyers refers to the

served pleading only as “Plaintiff’s Petition.”         CR 35.      The Carters’

representation to this Court that “the citation, return of service, and petition

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

Petition and Request for Permanent Injunction,” is both inaccurate and


                                       -27-
disappointing. Brief of Appellees at 25.

      The return of service is not a trivial, formulaic document. It has long

been considered prima facie evidence of the facts recited therein. Primate

Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). “The officer's return

does not cease to be prima facie evidence of the facts of service simply

because the facts are recited in a form rather than filled in by the officer. It is

the responsibility of the one requesting service, not the process server, to see

that service is properly accomplished. Tex.R.Civ.P. 99(a). This responsibility

extends to seeing that service is properly reflected in the record.” Primate

Const., Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994).

      In this case, the only alleged service reflected in the three returns of

service is “the petition,” CR 32, 33 or “Plaintiff’s Petition,” CR 35, but not

“Plaintiffs’ Original Petition and Request for Permanent Injunction.”

Accordingly, the record does not reflect valid service on the Sawyers or Pax

Crate.

         No File Mark on Sawyers Returns of Service = No Service

      In the ninth issue presented, Robin Sawyers and Elishah Sawyers

advised the Court that the absence of any clerk’s file mark on the returns of

service addressed to Robin Sawyers and Elishah Sawyers there is no proper


                                       -28-
service by certified mail on Robin Sawyers or Elishah Sawyers. Tex. R. Civ.

P. 107(h). Brief of Appellants at 34-35.

      The Carters advise the Court that Rule 107(h) merely requires proof of

service to be on file with the clerk for at least 10 days under factual

circumstances not present in this case. Brief of Appellees at 26-27. The

Carters are mistaken.

      Rule 107(h) states that “no default judgment shall be granted in any

cause until proof of service as provided by this rule or by Rules 108 or 108a,

or as ordered by the court in the event citation is executed by an alternate

method under Rule 106, shall have been on file with the clerk of the court ten

days exclusive of the day of filing and the day of judgment.” Rule 108 and

Rule 108a pertain to service of process in another state (Rule 108) or in a

foreign country (Rule 108a). The Carters sought service on the Sawyers and

Pax Crate in the State of Texas. CR 32, 33, 35. Therefore, the clause

addressing Rules 108 and 108a should not be considered for purposes of

analysis in this case. Further, the clause addressing “an alternative method

under Rule 106" also does not apply since the Carters did not seek service

upon the Sawyers or Pax Crate pursuant to Texas Rule of Civil Procedure

106(b). See Blackburn v. Citibank (South Dakota) N.A., 2006 WL 1629770,


                                     -29-
No. 05-05-01082-CV (Tex. App.– Dallas 2006, no pet.) (mem. op.)

(“alternative method” means substituted service under Rule 106(b)). As a

result, the Carters were obligated to ensure that the record establishes proof

of service on file for at least ten days exclusive of the day of filing and the day

of judgment. Tex. R. Civ. P. 107(h).

      The Carters inform this Court that the Sawyers were served on July 14,

2014, citing the date on the certified mail green cards for that proposition.

Brief of Appellees at 26. They conclude that since “the default judgment was

granted almost two months later on September 12, 2014, CR 50-51, “the

required 10-day period was met.” Brief of Appellees at 26. However, the

Carters’ conclusion cannot be drawn from the facts available on the face of

the record.

      What if the United States Postal Service misplaced the certified mail

receipts and they were not found and delivered to the Waller County District

Clerk’s office until September 5, 2014? That period from September 5, 2014

to September 12, 2014, is insufficient to comply with the ten-day requirement

set forth in Rule 107(h). A clerk’s file mark on the certified mail receipt,

showing the date that the receipt came back into possession of the Waller

County District Clerk, could certainly establish the date that proof of service


                                       -30-
(the certified mail receipts) came into the Waller County District Clerk’s

possession for the requisite period prior to default judgment. But the absence

of any such file stamp on the returns of service makes it impossible to know

whether or not the returns of service were “on file for at least ten days

exclusive of the day of filing and the day of judgment.” Tex. R. Civ. P. 107(h).

      Lefton v. Griffith, 136 S.W.3d 271 (Tex. App.– San Antonio 2004, no

pet.) provides no support for the Carters’ position. In Lefton, the defendants

complained that although the returns of service bore file marks showing the

date that the returns of service were filed, the file stamp had not been signed

by a representative of the District Clerk's Office. Lefton, 136 S.W.3d at 280.

In the present case, the Sawyers and Pax Crate make no complaint about

any missing “signature.” Complaint is made about the missing file mark.

Therefore, Lefton simply does not apply.

      For all of the foregoing reasons, the Carters’ failure to ensure

compliance with Texas Rule of Civil Procedure 107(h) for the requisite period

prior to entry of default judgment establishes that service, if any, failed to

comply with the applicable Texas Rules of Civil Procedure as a matter of law.




                                      -31-
           The Order Granting Default Judgment is Interlocutory

      The Carters cite no authority for their proposition that the unilateral act

of the Waller County District Clerk in preparing an abstract of judgment that

does not contain prejudgment interest somehow constitutes a “waiver” of

prejudgment interest by the Carters.          Brief of Appellees at 29.       The

undersigned has found no authority of any kind, despite diligent search,

standing for the proposition that a district clerk’s ministerial completion of her

duties somehow constitutes a waiver of remedy by one of the parties to the

lawsuit.

      The only case cited in this section of the Carters’ brief– Jones v. Griege,

803 S.W.2d 486, 487-88 (Tex. App.– Dallas 1991, no writ), addresses a

party’s intentional and knowing conduct in filing a written waiver with the clerk

of a court. No such written waiver exists in this case. Therefore, Griege

provides no authority for the proposition that a clerk’s preparation of an

abstract of judgment constitutes some sort of intentional and knowing “waiver”

of a remedy by a party to the lawsuit.

      The trial court’s failure to grant any relief on the Carters’ request for two

permanent injunctions also makes the Order Granting Default Judgment

interlocutory. The Court need only compare the Carters’ injunction pleadings


                                       -32-
to the Order Granting Default Judgment to see that.

      The Carters pleaded for a permanent injunction against the “use of

excessively loud dirt bikes or other ATV’s on the Defendants’ property,” and

on the moving of Pax Crate to the real property in question. CR 6-7. The trial

court did not grant any permanent injunction whatsoever. CR 50-51. The

word “permanent” or “permanently” never appears in the Order Granting

Default Judgment. CR 50-51. The so-called injunction does not state who is

enjoined from taking what action, for what period of time. As a result, it lacks

the necessary certainty to finally resolve the pleaded issues between the

Carters and the Sawyers. CR 6-7, 50-51.

      The language used by the trial court is almost identical to the language

used in Chandler v. Reder, 635 S.W.2d 895 (Tex. App.– Amarillo 1982, no

writ) and Disco Machine of Liberal Co. v. Payton, 900 S.W.2d 71 (Tex. App.–

Amarillo 1995, writ denied), and declared to be insufficient to constitute a final

judgment.

      In those cases, the trial courts issued orders stating that motions for

summary judgment were granted, but failed to include decretal language

expressly resolving the pleaded dispute between the parties. In each case,

the court of appeals concluded that an order granting a particular motion, but


                                       -33-
failing to expressly set forth the relief awarded, made the order in question

interlocutory, and not a final, appealable judgment.

    Legally and Factually Insufficient Evidence Supports Damages

      The record in this appeal lacks legally and factually sufficient evidence

to support the amount of damages awarded by the court. Evidence must be

provided to establish both the existence of compensable damages and to

justify the amount awarded. Saenz v. Fid. & Guar. Ins. Underwriters, 925

S.W.2d 607, 614 (Tex. 1996). See also Bentley v. Bunton, 94 S.W.3d 568,

605 (Tex. 2002).

      In this case, no evidence establishes how the trial court determined that

actual damages of $480,000 were appropriate and supported. As a result,

that award cannot stand.

      WHEREFORE, PREMISES CONSIDERED, Appellants, Elishah

Sawyers, Pax Crate & Freight, Inc., and Robin Sawyers pray that the Court

grant the relief sought in their Brief of Appellants in this appeal.




                                      -34-
                              Respectfully submitted,

                              LAW OFFICES OF SCOTT ROTHENBERG

                                 /s/ Scott Rothenberg
                              SCOTT ROTHENBERG
                              scott@rothenberglaw.com email
                              State Bar No. 17316750
                              2777 Allen Parkway, Suite 1000
                              Houston, Texas 77019-2165
                              (713) 667-5300 telephone
                              (713) 667-0052 telecopier
                              COUNSEL FOR APPELLANTS,
                              ELISHAH SAWYERS,
                              PAX CRATE & FREIGHT, INC.,
                              and ROBIN SAWYERS



                        Certificate of Compliance

      Based upon the word counting function of Wordperfect X4 for Windows,
this Amended Reply Brief of Appellants contains 7,483 words excluding the
portions of the brief excluded in Texas Rule of Appellate Procedure 9.4(i)(1).

                                       /s/ Scott Rothenberg
                                    SCOTT ROTHENBERG




                                     -35-
                           Certificate of Service

      I hereby certify that a true and correct copy of the foregoing document
has been forwarded by e-filing and e-service to all lead counsel of record, on
this 29th day of April, 2015, as follows:

Mr. Bruce C. Tough
The Tough Law Firm
819 Crossbridge Drive
Spring, Texas 77373
(281) 681-0808 telephone
(281) 681-0809 fax
btough@toughlawfirm.net - email


                                              /s/ Scott Rothenberg
                                            SCOTT ROTHENBERG




                                     -36-
