Opinion filed April 21, 2016




                                       In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-14-00126-CV
                                   __________

            ARTISAN INFRASTRUCTURE, INC., Appellant
                                         V.
     PREMIER FAMILY CARE I, INC. D/B/A PREMIER
               PHYSICIANS, Appellee

                 On Appeal from the County Court At Law No. 2
                               Midland County, Texas
                          Trial Court Cause No. CC-17,133


                   MEMORANDUM OPINION
       Artisan Infrastructure, Inc. brings this appeal from an adverse judgment
by which the trial court enjoined it from certain activities and required it to
perform certain other activities related to the storage and retrieval of Premier
Family Care I’s electronic patient records. We affirm.
      Premier Family Care I, Inc. is a health care provider. Premier initially
sued MedAppz, LLC; Medlink International, Inc.; Ray Vuono; Consultis
Group, LLC; and Brian Lichtlin for breach of a contract that it had with
MedAppz for the handling and storage of, and access to, Premier’s electronic
patient records. Later, when it learned that Artisan was storing its data
through some type of agreement “with Lichtlin/MedAppz/MedLink,” Premier
amended its petition to include Artisan Infrastructure, Inc. as a defendant.
      Premier alleged that Artisan had threatened to destroy its copy of
Premier’s data, and Premier sought and obtained a temporary restraining order
to prevent that. In the temporary restraining order, the trial court set a
temporary injunction hearing for July 26, 2013. By agreement of the parties,
the trial court extended that date for fourteen days. By its order entered on
July 25, 2013, the trial court reset the hearing for August 7, 2013. On
August 7, 2013, the trial court set the hearing on Premier’s request for
temporary injunction for August 19, 2013. On August 19, 2013, after the
hearing that the trial court had set, the trial court entered a temporary
injunction to essentially ensure the temporary protection of and access to
Premier’s data. Jessica A. Putonti, an attorney from the law firm of Dorsett,
Johnson & Swift, LLP, appeared for and participated in that hearing by
telephone on behalf of Artisan. None of the other defendants appeared.
During that hearing, the trial court set the final hearing for November 4, 2013.
Although Putonti appeared on behalf of Artisan, neither Artisan nor any other
defendant ever filed a written answer in this case.
      On October 10, 2013, Premier filed a motion for default judgment. The
motion contained a notice of hearing directed to Artisan in which Premier




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notified Artisan that the motion was set for a hearing on November 4, 2013,
the date for which the trial court had previously set the final hearing.
       The trial court heard the motion for default judgment on November 4,
2013. In the order that the trial court entered after that hearing, it noted that,
although the defendants were duly and properly notified of the hearing, all of
them failed to appear for the hearing. The trial court then granted permanent
injunctive relief against Artisan, as well as certain other relief against the other
defendants that is not pertinent to this appeal.
       Artisan claimed that it did not know about the judgment until it was too
late to file a motion for new trial and pursue a regular appeal. Therefore, it
filed this restricted appeal under Rule 30 of the Texas Rules of Appellate
Procedure. TEX. R. APP. P. 30.
       In this restricted appeal, Artisan maintains, as its sole ground for appeal,
that the judgment against it was entered in error because “it was taken as a
post-answer default without notice to Artisan.” In Lejeune, the court noted
that a party can prevail in a restricted appeal only if:
      (1) it filed notice of the restricted appeal within six months after the
      judgment was signed; (2) it was a party to the underlying lawsuit; (3) it
      did not participate in the hearing that resulted in the judgment
      complained of and did not timely file any postjudgment motions or
      requests for findings of fact and conclusions of law; and (4) error is
      apparent on the face of the record.

Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (quoting
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)).
       As a preliminary matter, Premier claims that Artisan did not file its
notice of restricted appeal in a timely manner. We have already answered that
question against Premier when we granted Artisan’s motion for permission to
file a late notice of appeal.

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      As we have stated, in order to prevail in this restricted appeal, Artisan
must show, among other things not relevant here, that the claimed error (lack
of notice) is apparent from the face of the record. On appeal, Artisan
maintains that notice of the hearing was sent to the wrong address and the
wrong e-mail address. Under the claims that Artisan makes here, then, it must
be apparent from the face of the record that the judgment was entered against
it without proper notice. We believe that this record shows the contrary.
There is nothing on the face of this record to show that notices were sent to
the wrong address or to an incorrect e-mail address. In fact, in its judgment,
the court found that all parties were properly notified of the hearing.
      Further, the face of the record shows that Artisan had actual notice of
the hearing. A record was made of the August 19, 2013 hearing. The
reporter’s record made of that hearing shows that Artisan did appear for the
hearing, telephonically, through its attorney.      At the conclusion of that
temporary injunction hearing, counsel for Premier brought it to the attention
of the trial court that it was necessary that the order contain a setting for the
final hearing or it would not be enforceable. When it selected a date, the trial
court commented that “we’ll say November 4th and that will just get us a date.
We can alter that whenever we need to.” The trial court “pencil[ed] in” the
trial setting for November 4, 2013, at 9:00 a.m., “understanding this date will
be changed.”
      But the date of the hearing was neither altered nor changed. The face
of the record shows that Artisan actually knew of the final hearing date and
time, and that notice of the hearing on Premier’s motion for default judgment
on that same date was also sent to Artisan. Because Artisan has not shown
any error on the face of the record—in fact the face of the record shows the


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contrary—it cannot prevail in this restricted appeal. See id. We need not
consider whether Artisan met the other elements necessary to prevail in a
restricted appeal. Artisan’s sole issue on appeal is overruled.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


April 21, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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