                                                                          ACCEPTED
                                                                     01-14-00870-cv
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                4/8/2015 12:33:22 PM
                                                                 CHRISTOPHER PRINE
                                                                              CLERK

             No. 01-14-00870-CV

                                                     FILED IN
                                              1st COURT OF APPEALS
           In the Court of Appeals                HOUSTON, TEXAS
        For the First District of Texas       4/8/2015 12:33:22 PM
               Houston, Texas                 CHRISTOPHER A. PRINE
                                                      Clerk



Elishah Sawyers; Pax Freight & Crate, 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


            APPELLEES’ BRIEF



                           Mr. Bruce C. Tough
                           State Bar No. 20151500
                           Tough Law Firm, PLLC
                           819 Crossbridge Drive
                           Spring, Texas 77373
                           btough@toughlawfirm.net
                           telephone: (281) 681-0808
                           telecopier: (281) 281-0809
                           Lead Counsel for Appellees
                           Mark Carter and Sally Carter
                                                 Table of Contents

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iv

Statement of the Case.................................................................................................1

Statement Regarding Oral Argument ........................................................................2

Statement of Issues Presented ....................................................................................2

Statement of Facts ......................................................................................................3

Summary of Argument ..............................................................................................6

Argument....................................................................................................................8


                                               First Issue Presented


         THE APPELLATE COURT LACKS SUBJECT MATTER
         JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS
         UNTIMELY AND THE RESTRICTED NOTICE OF APPEAL WAS
         UNTIMELY AND IMPERMISSIBLE………………………….8 - 15


                                            Second Issue Presented

         THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND
         RETURN OF SERVICE WERE VALID………………………15 -27


                                              Third Issue Presented


         THE JUDGMENT IS FINAL AND APPEALABLE, NOT
         INTERLOCUTORY……………………………………………27 - 34


                                                             ii
                  Fourth Issue Presented

   FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE
   AWARD OF ATTORNEY’S FEES AND MONETARY
   DAMAGES……………………………………………………..34 - 38



Prayer……………………………………………………………………………...38

Certificate of Compliance…………………………………………………………39

Certificate of Service……………………………………………………………...40

Appendix………………………………………………………………………...ante




                            iii
                          Index of Authorities

Cases                                                           Page

Adjust Video v. Nueces County,
996 S.W.2d 245
(Tex. App.-Corpus Christi 1999, no pet.)………………………………................30

Cockrell v. Estevez,
737 S.W.2d 138
(Tex. App.--San Antonio 1987, no writ)………………………………………….23

Color Smart, Inc. v. Little,
No. 04-00-00294-CV, 2001 WL 1230526, at *2
(Tex. App. – San Antonio, Oct. 17, 2001, no pet.)………………………………..15

Cont’l Cas. Co. v. Guzman,
No 04-07-00589-CV, 2009 WL 136926, at *5
(Tex. App. –San Antonio Jan. 21, 2009, pet. denied)…………………………….22

Cotton Patch Cafe, Inc. v. McCarty,
2006 WL 563307, at *6
(Tex. App. -- Fort Worth Mar. 9, 2006, no pet.)……………………………...16, 24

Daniel v. Fort Worth & Rio Grande Ry. Co.,
72 S.W. 578
(Tex. 1902)………………………………………………………………………..36

Davis v. McCray Refrigerator Sales Corp.,
150 S.W.2d 377
(Tex. 1941)………………………………………………………………………..30

Day v. Tripp,
1999 WL 546869
(Tex. App. -- Austin July 29, 1999)………………………………………………36

Dezso v. Harwood,
926 S.W.2d 371
(Tex. App.--Austin 1996, writ denied)……………………………………………16


                                   iv
Fluor Daniel, Inc. v. H.B. Zachary Co., Inc.,
2005 WL 2559773, *3
(Tex. App. – Corpus Christi Oct. 13, 2005, pet. denied) (mem. op.)……………..32

Fresh Coat, Inc. v. Life Forms, Inc.
125 S.W.3d 765
(Tex. App. – Houston [1st Dist.] 2003, no pet.)…………………...………………33

Garcia v. Kastner Farms, Inc.,
774 S.W.2d 668
(Tex.1989)………………………………………………………………………...13

Gardner v. U.S. Imaging, Inc.,
274 S.W.3d 669
(Tex. 2008)………………………………………………………………………..36

Gilstrap v. Calley,
2004 WL 2812881
(Tex. App. Houston [14th Dist.] Dec. 9, 2004)……………………………………13

Ginn v. Forrester,
282 S.W.3d 430
(Tex. 2009)………………………………………………………………………..13

Grondona v. Sutton,
991 S.W.2d 90
(Tex. App. – Austin 1998, pet. denied) (per curiam)……………………………..12

Herbert v. Greater Gulf Coast Enters., Inc.,
915 S.W.2d 866
(Tex. App.--Houston [1st Dist.] 1995, no writ)…………………………………...16

Higginbotham v. General Life & Accident Ins. Co.,
796 S.W.2d 695
(Tex. 1990)………………………………………………………………………..15

Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 80
(Tex. 1992)……………………………………………………………………..…34


                                     v
Hunt Oil Co. v. Moore,
639 S.W.2d 459
(Tex. 1982)………………………………………………………………………..29

In re Bokeloh.
21 S.W. 3d 784
(Tex. App. – Houston [14th Dist.] 2000, no pet.)………………………………….11

In re Griffith,
2003 WL 21508337, at *1
(Tex. App.-- San Antonio July 2, 2003, mandamus denied)………………….27, 28

Irlbeck v. John Deere Co.,
714 S.W.2d 54
(Tex. App. -- Amarillo 1986, no writ)...…………………………………………..37

John v. Marshall Health Servs., Inc.
58 S.W.3d 738
(Tex. 2001)………………………………………………………………………..11

Jones v. Griege,
803 S.W.2d 486
(Tex. App.--Dallas 1991, no writ)………………………………………………...29

Jones v. Rabson & Broocks, LLC,
2003 WL 302439, at *3
(Tex. App. – Houston [1st Dist.] Feb. 13, 2003, no pet.) (mem. op.)……………..32

Lefton v. Griffith,
136 S.W.3d 271
(Tex. App. San Antonio 2004, no pet.)……………………………………….26, 36

Lehmann v. Har-Con Corp.,
39 S.W.3d 191
(Tex. 2001)……………………………………………………………27, 32, 33, 36

LEJ Dev. Corp. v. Sw. Bank,
407 S.W.3d 863
(Tex. App. – Fort Worth 2013, no pet.)…………………………………………...16


                                     vi
Lucas v. Clark,
347 S.W.3d 800
(Tex. App.—Austin 2011, pet. denied)…………………………………………...34

Marquez v. Greig ex rel. Texas Stars Cheerleading,
2012 WL 3228710, No. 01-10-01118-CV, op. at 3
(Tex. App. –Houston [1st Dist.] 2012, no pet.) (mem. op.)………………………25

McClain v. USA Today Newspaper,
2010 Tex. App. 2010 WL 2404651
(Tex. App. --Dallas June 17, 2010)……………………………………………….14

McDonald v. Newmyer,
775 S.W.2d 652
(Tex. App.--Houston [1st Dist.] 1989, writ denied)………………………………..9

Mem'l Hosp. v. Gillis,
741 S.W.2d 364
(Tex. 1987)………………………………………………………………………..11

Ortiz v. Avante Villa at Corpus Christi, Inc.,
926 S.W.2d 608
(Tex. App.--Corpus Christi 1996, writ denied)………………………….........15, 23

Payne & Keller Co. v. Word,
732 S.W.2d 38
(Tex. App.--Houston [14th Dist.] 1987,writ ref'd n.r.e.)……………………...15, 23

Pena v. McDowell,
201 S.W.3d 665
(Tex. 2006)………………………………………………………………………..14

Priest v. Texas Animal Health Comm'n,
780 S.W.2d 874
(Tex. App.-Dallas 1989, no writ)…………………………………………………29

Primate Construction, Inc. v. Silver,
884 S.W.2d 151
(Tex. 1994)………………………………………………………………………..26


                                   vii
Quaestor Invs., Inc. v. State of Chiapas,
997 S.W.2d 226
(Tex. 1999)…………………………………………………………………………9

Ragsdale v. Progressive Voter League,
801 S.W.2d 880
(Tex. 1990)………………………………………………………………………..35

Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist.,
180 S.W.3d 903
(Tex. App. – Dallas 2005, pet. denied)……………………………………………22

Regalado v. State,
934 S.W.2d 852
(Tex. App.--Corpus Christi 1996, no writ)……………………………………15, 16

Rosedale Partners v. 131st Judicial Dist. Court,
869 S.W.2d 643
(Tex. App. -- San Antonio 1994)……………………………………………...28, 29

Sheik Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP,
2011 WL 3964573
(Tex. App. Dallas Sept. 9, 2011)………………………………………………….29

Sherman Acquisition II LP v. Garcia,
229 S.W.3d 802
(Tex. App. -- Waco 2007, no pet.)………………………………………………..37

Southwestern Bell Mobile Sys. v. Franco,
971 S.W.2d 52
(Tex. 1997) (per curiam)………………………………………………………….37

Stephenson v. Corporate Servs., Inc.,
650 S.W.2d 181
(Tex. App. –Tyler 1983, writ ref’d n.r.e.)………………………………………...21

Sutton v. Hisaw & Assocs. Gen. Contrs., Inc.,
65 S.W.3d 281
(Tex. App. –Dallas 2001, pet. denied)……………………………………………37


                                viii
Texas Commerce Bank, Nat'l Ass'n v. New,
 3 S.W.3d 515
(Tex. 1999)………………………………………………………………..34, 35, 37

Verburgt v. Domer,
 959 S.W.2d 615
(Tex. 1997)………………………………………………………………………..12

Whitaker v. Rose,
218 S.W.3d 216
(Tex App.—Houston [14th Dist.] 2007, no pet.)………………………………….34

Williams v. Williams,
150 S.W.3d 436
(Tex. App. –Austin 2004, pet. denied)………………………………………..15, 16

Zamarripa v. Sfuentes,
929 S.W.2d 655
(Tex. App. – San Antonio 1996, no writ)…………………………………………28

Zepeda v. Giraud,
880 S.W.2d 833
(Tex. App. – San Antonio 1994)…………………………………………………...9

Zhao v. Lone Star Engine Installation Ctr.,
No. 05-09-01055-CV, 2009 WL 3177578, at *1
(Tex. App. –Dallas Oct. 6, 2009, pet. denied)……………………………………12




                             ix
Statutes and Rules                                                                                       Page

TEX. R. APP. P.4.2 …………………………………………………7, 8, 11, 13, 14
TEX. R. APP. P. 4.2(a)(1).......................................................................................10
TEX. R. APP. P. 4.2(c)……………………………………………………………11
TEX. R. APP. P. 26.1…………………………………………………………... 6, 8
TEX. R. APP. P. 26.1(a)…………………………………………………………..10
TEX. R. APP. P. 26.1(c)………………………………………………………7, 8, 9
TEX. R. APP. P. 26.3………………………………………………………..7, 8, 12
TEX. R. APP. P. 30………………………………………………………………...9
TEX. CIV. PRAC. & REM 38.004……………………………………………….36
TEX. R. CIV. P. 99(b)………………………………………………………...16, 19
TEX. R. CIV. P. 99(b)(4)…………………………………………………………25
TEX. R. CIV. P. 99(b)(8)…………………………………………………………21
TEX. R. CIV. P. 106 ……………………………………………………………...26
TEX. R. CIV. P. 106(a)(2)………………………………………………….....20, 26
TEX. R. CIV. P. 107(b)…………………………………………………...20, 25, 26
TEX. R. CIV. P. 107(b)(4)………………………………………………………..20
TEX. R. CIV. P. 107(b)(6)………………………………………………………..23
TEX. R. CIV. P. 107(h)……………………………………………………….26, 27
TEX. R. CIV. P. 306(a)………………………………………………….........10, 11
TEX. R. CIV. P. 306(a)(4)………………………………………………………….7
TEX. R. CIV. P. 306(a)(5)…………………………………… 6, 7, 8, 10, 11, 13, 14
TEX. R. CIV. P. 683…………………………………………………………..30, 31




                                                        x
                              No. 01-14-00870-CV


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


                 Elishah Sawyers; Pax Freight & Crate, 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


                             APPELLEES’ BRIEF



TO THE HONROABLE FIRST COURT OF APPEALS:

                          STATEMENT OF THE CASE

      This was a suit for permanent injunctive relief and private nuisance

damages. CR 2-29. After Appellees Mark and Sally Carter obtained a final default

judgment on September 12, 2014 (CR 50-51), Appellants Elishah and Robyn

Sawyer and Pax Crate and Freight, Inc. filed a late notice of appeal and, recently,

a late notice of restricted appeal. (CR 60-61) The late notices fail to invoke

                                         1
Appellate Court subject matter jurisdiction and, therefore, this Court must dismiss

Appellants’ appeal irrespective of any merit of the points of error raised by

Appellants. Notwithstanding the absence of jurisdiction, service was proper, the

default judgment is a final judgment and appealable, and sufficient legal and

factual evidence has been presented via affidavits in support of the default

judgment. In summary, the trial court judgment should be confirmed.

               STATEMENT REGARDING ORAL ARGUMENT

      Appellee intends to participate in any oral hearing.

                    STATEMENT OF ISSUES PRESENTED

ISSUE ONE:    THE APPELLATE COURT LACKS SUBJECT MATTER
JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY
AND THE RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND
IMPERMISSIBLE.

      In the event the Appellate Court decides it has subject matter jurisdiction

and hears the appeal, Appellees present the following issues:

 ISSUE TWO: THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND
                RETURN OF SERVICE WERE VALID.

                (Germane to Appellants’ Issues Two through Nine)
      A review of the record shows that the proper defendants, Appellants herein,

were served.




                                         2
   ISSUE THREE:        THE DEFAULT JUDGMENT IS A FINAL JUDGMENT
                             AND APPEALABLE.
                        (Germane to Appellants’ Issue One)
      The language of the judgment, the record as a whole, and the conduct of the

parties confirm the disposition of all parties and claims and, therefore, the

judgment is final.

 ISSUE FOUR:  FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE
     AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES
                      (Germane to Appellant's Issues 1 and 3)

      Evidence in the form of affidavits attached to Appellees’ petition supports

the trial court's judgment.

                              STATEMENT OF FACTS

      As a matter of background, Mark and Sally Carter, Appellees in this matter

(also, the “Carters”), had been living on their twenty-two acres of rural land

located in Hockley, Texas since 2000 when, in September of 2013, Appellants,

husband and wife, Elishah and Robyn Sawyers (also, the “Sawyers”), purchased

the thirteen-acre property adjoining the Carters’ property. CR 2 – 29. Shortly

thereafter, large amounts of dirt fill were hauled onto the Sawyers’ property to

construct a semi-professional dirt bike track. CR 2-29. Thereafter, dirt bike activity

regularly produced excessively loud, high-pitched noise that could be heard clearly

on any part of the Sawyers’ property, including inside their home. CR 2-29. The

dirt bike activity also produced large clouds of dust, which traveled onto the

                                          3
Sawyers’ property, coating their buildings, yards, vehicles, animals and anyone

outside in dust. CR 2 – 29. The regular dirt bike riding deteriorated the quality of

life of the Appellees. CR 2 – 29.

      Appellee Mark Carter informed Appellant Elishah Sawyers of the harm

being caused by the dirt bike riding and requested that the dirt bikes be limited to

smaller, quieter bikes. Appellant Elishah Sawyers refused Mr. Carter’s request and

added that the Sawyers intended to move their business, Appellant Pax Crate &

Freight, Inc., which business uses loud air guns in its regular course of business, to

their Sawyer property along the Carters’ fence line. CR 2 – 29.

      The Carters listed their property for sale to escape the noise and dust that

had invaded their property and destroyed their quality of life that they had enjoyed

for approximately fourteen years. CR. 2 – 29. Although the Carters found a

serious buyer, the nuisance caused by the dirt bike racing activities on the

Sawyers’ property directly caused that potential buyer to revoke the offer. CR 2 –

29.

      Appellees filed their petition and request for permanent injunctive relief on

July 1, 2014 seeking to recover damages in the amount of $480,000 and a

permanent injunction against (1) the use of excessively loud dirt bikes or other

ATV's on the Sawyers’ property and (2) the construction of Pax Crate & Freight,

Inc. on the Sawyers’ property. CT 2-29.


                                          4
      The Appellants acknowledge that they timely e-filed answers to the petition

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

clerk’s record. Appellees filed a motion for default judgment on August 21, 2014

that included a request for an oral hearing; Appellees then filed an amended motion

for default judgment on September 3, 2014 and a notice of submission on

September 4, 2014. CR 36 – 49. The 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. CR 49.

      The motion for default judgment was supported by affidavits, as well as

default admissions, which resulted in the trial court signing a default judgment on

September 12, 2014 that awarded permanent injunctive relief and the amount of

$480,000.00 in damages, plus costs of court, post-judgment interest, and attorney’s

fees. CR 50-51. The damages award stemmed from the fact that the Carters

incurred personal damages as well as property damages, including the loss of a

serious buyer who retracted an offer to purchase the Carters’ property, and

damages for discomfort and annoyance in the amount of $480,000.00 because of

the nuisance created by the Sawyers’ dirt bike racing activities. CR 51.

      On October 27, 2014, Appellants filed their notice of appeal. CR 60. On

November 24, 2014, this Court instructed the Sawyers to file a reasonable

explanation for their untimely filing of notice of appeal. On December 14, 2014,


                                         5
the Sawyers filed a Response to the Court’s Inquiry Regarding Jurisdiction (also,

“Response”) that concedes that the court does not have jurisdiction and blames

their late filing of the notice of appeal on the trial clerk for the failure to send a

notice of the default judgment to Appellants. See Response, pp. 2-3, 8 – 10, 17 –

19 and the Affidavits attached to the Response. (also, “Response Affidavits”)

      In the Affidavits to their Response, Appellants Robyn and Elishah Sawyers

acknowledge that they e-filed an answer in a timely manner on August 4, 2014 to

the July 1, 2014 petition in their pro se status and attached a copy to their Affidavit

of the answer that they purportedly e-filed, but the answers are not part of the

record, hence the default judgment. Both Robyn and Elishah Sawyers also

acknowledge that had they learned of the default judgment within thirty (30) days

of it being signed, they would have timely filed a post-judgment motion or notice

of appeal. See Affidavits attached to the Response.

      Appellants did not file a post-judgment motion or a Texas Rule of Civil

Procedure 306(a)(5) motion in the trial court. Appellants also filed a notice of

restricted appeal on March 18, 2015.

                           SUMMARY OF ARGUMENT

      The Appellate Court lacks subject matter jurisdiction of this appeal and must

dismiss it because Appellants did not file their notice of appeal timely pursuant to

Texas Rules of Appellate Procedure 26.1 or provide a “reasonable explanation” for


                                          6
their late filing of the notice of appeal pursuant to Texas Rules of Appellate

Procedure 26.3, nor did Appellants certify in the trial court the date on which they

acquired actual notice of the default judgment pursuant to Texas Rules of

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

jurisdictional prerequisite.

      Their “reasonable explanation” for their late filing of the notice of appeal, to

wit – they acquired knowledge of the default judgment too late to timely file a

motion for new trial or notice of appeal within 30 days of the default judgment -

should have been presented at the trial court in a Texas Rules of Civil Procedure

306(a)(5) hearing prior to filing their notice of appeal. The Texas Rules of Civil

Procedure 306(a)(5) hearing is a prerequisite to subject matter jurisdiction of the

appellate court.

      Appellants also filed their notice of restricted appeal late pursuant to Texas

Rules of Appellate Procedure 26.1(c) and did so without first abandoning their

ordinary appeal.

      The legal missteps of Appellants cannot be excused because of their pro se

status. However, should the appellate court decide that it has subject matter

jurisdiction, the default judgment should nevertheless be confirmed:          (1) the

service of process should not be invalidated for defective service because the

record as a whole, including the petition, citation, and return, shows that citation


                                          7
was indeed served on the proper defendants ( “Appellants” herein) in the suit; (2)

after Appellants’ recognition and treatment of the default judgment as final by their

filing of a notice of appeal, and restricted notice of appeal, Appellants have now

reversed their opinion and claim that the judgment is interlocutory, but a review of

the default judgment, record and conduct of the parties provides a distinct mark of

finality to the default judgment and all parties and claims were disposed of in the

default judgment; and, (3) the affidavit evidence attached to Appellees’ petition is

legally and factually sufficient to support the amounts awarded as damages and

attorney’s fees.

                                    ARGUMENT

                            FIRST ISSUE PRESENTED

   THE APPELLATE COURT LACKS SUBJECT MATTER JURISDICTION
     BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY AND THE
       RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND
                       IMPERMISSIBLE.

      This Court does not have subject matter jurisdiction to hear Appellants’ case

and must dismiss the appeal. Appellants are not entitled to additional time to file

their notice of appeal because they did not satisfy the jurisdictional prerequisites of

Texas Rules of Appellate Procedure 4.2, 26.1, 26.1(c), 26.3 and Texas Rules of

Civil Procedure 306(a)(5). Irrespective of the reversibility of the default judgment

on the basis of any other points of error asserted by Appellants, this Court simply

does not have authority to entertain the appeal because it was not timely perfected
                                          8
and, therefore, must grant Appellees' motion to dismiss. See McDonald v.

Newmyer, 775 S.W.2d 652, 653 (Tex. App.--Houston [1st Dist.] 1989, writ

denied).

       Restricted Notice of Appeal:         In addition to their filing of a notice of

appeal on October 27, 2014, the Appellants have now also filed a restricted notice

of appeal. However, the restricted notice of appeal was required to be filed no later

than 6 months after the default judgment was signed on September 12, 2014. Tex.

R. Civ. P. 26.1(c). The six-month time limit is mandatory and jurisdictional.

Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)1. The

deadline for the filing of the restricted notice of appeal was March 12, 2015, six

months after the date on which the judgment was signed on September 12, 2014.

Appellants did not file their restricted notice of appeal until March 27, 2014. As

such, regardless of the reversibility of the default judgment on the basis of any

other points of error, the Appellate Court does not have jurisdiction over this

appeal and can do nothing but dismiss the appeal.              McDonald v. Newmyer, 775

S.W.2d at 653. Furthermore, Appellants were required to first abandon their

ordinary appeal as both an ordinary appeal and restricted appeal may not be

pursued simultaneously. Zepeda v. Giraud, 880 S.W.2d 833, 834 - 835 (Tex. App.

1 This case concerned a writ of error proceeding filed in 1996 under the former Texas Rules of
Appellate Procedure. “Writ of error” appeals have been replaced by “restricted” appeals under
the current Texas Rules of Appellate Procedure. See Tex. R. App. P. 30.


                                               9
San Antonio 1994) (An appeal by writ of error from a default judgment in a civil

suit was dismissed for want of jurisdiction because appellant had previously

perfected an ordinary appeal, which was dismissed by the court and not abandoned

by appellant.) Because of the late notice of restricted appeal, even the

abandonment of the ordinary appeal would not preserve this appeal.

      Notice of Appeal: The timely filing of a notice of appeal is jurisdictional. A

notice of appeal must be timely filed within thirty days after a judgment is signed

unless the appellant files a motion for new trial, motion to modify the judgment,

motion to reinstate, or request for findings of fact and conclusions of law. Tex. R.

App. P. 26.1 (a). The Appellants did not file a post-judgment motion to extend the

plenary power of the trial court.

      The default judgment in this case was signed on September 12, 2014. CR

50- 51. Because Appellants did not file a motion for new trial, the trial court’s

plenary jurisdiction therefore ended on October 12, 2014 and their notice of appeal

was due on October 12, 2014. Appellants filed their notice of appeal on October

27, 2014. CR 60.

      Texas Rules of Appellate Procedure. 4.2(a) (1) allows post-judgment

deadlines to be extended if the requirements of Texas Rules of Civil Procedure

306(a) are met. Rule 306(a)(5) provides that a party who did not have notice or

knowledge of a judgment or order may be afforded 30 days from the date he


                                        10
acquired such notice or knowledge in order to invoke the trial court's plenary

jurisdiction, provided that he can prove in the trial court, on sworn motion and

notice, the date on which the party or his attorney first either received a notice of

the judgment or acquired actual knowledge of the signing and that this date was

more than twenty days after the judgment was signed. Tex. R. Civ. P. 306(a)(5).

After hearing the motion, the trial court must sign a written order that certifies the

date when the party or the party's attorney first either received notice or acquired

actual knowledge the judgment was entered. Id.; see John v. Marshall Health

Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001); see also Tex. R. App. P. 4.2(c).

      Appellants did not comply with the required Texas Rules of Appellate

Procedure 4.2 that requires compliance with the Texas Rules of Civil Procedure

306(a)(5) to extend the start of the appellate timetable. Id. Compliance with the

provisions of rule 306a is a jurisdictional prerequisite. Mem’l Hosp. v. Gillis, 741

S.W. 2d 364, 366 (Tex. 1987). “Rule 306a plainly requires that this proof be made

in the trial court, not the court of appeals. [Italics added.]” Id.

      The record herein does not indicate that Appellants requested a rule 306a

hearing nor does it contain a written order; consequently, Appellants are not

entitled to receive an extension of time for perfecting an appeal under rule 4.2 of

the Texas Rules of Appellate Procedure. See In re Bokeloh, 21 S.W.3d 784, 793




                                           11
(Tex. App. – Houston [14th Dist.] 2000, no pet.); Grondona v. Sutton, 991 S.W.2d

90, 92 (Tex. App. – Austin 1998, pet. denied) (per curiam).

      The Appellants also did not file a motion in the Appellate Court pursuant to

Texas Rules of Appellate Procedure 26.3, to extend the 30-day period by the 15-

day grace period to file the notice of appeal. In order to benefit from the 15 day

extension, a motion for extension of time must be filed; however, such motion will

be “necessarily implied” when the appellant has filed the notice of appeal within

that 15 day grace period. Verburgt v. Domer, 959 S.W.2d 615, 617-18 (1997). The

motion must provide a “reasonable explanation” for the failure to file the notice of

appeal. Id.

      Appellants herein filed their notice of appeal within the 15-day grace period

but failed to file the companion motion for extension. Following this Court’s denial

of Appellees’ motion to strike the late-filed notice of appeal, this Court instructed

Appellants to provide a “reasonable explanation” for why the notice was filed late.

      The Texas Supreme Court has defined "reasonable explanation" to mean

"'any plausible statement of circumstance indicating that failure to file within the

[required] period was not deliberate or intentional, but was the result of

inadvertence, mistake, or mischance.'" Zhao v. Lone Star Engine Installation Ctr.,

No. 05-09-01055-CV, 2009 WL 3177578, at *1 (Tex. App.—Dallas Oct. 6, 2009,




                                         12
pet. denied) (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670

(Tex.1989)).

       Appellants acknowledge that their “reasonable explanation” for filing the

notice of appeal after the 30-day period was because of the trial clerk’s failure to

provide notice of the default judgment. See Response, pp. 2-3, 8 – 10, 17 – 19 and

the Affidavits of Appellants attached to the Response.2 Appellants cannot rely as

their “sufficient explanation” on their late notice of default because they failed to

first file a motion in the trial court to certify the date of their actual notice of

default judgment pursuant to Texas Rules of Civil Procedure 306(a)(5) and Texas

Rules of Appellate Procedure 4.2. This was a jurisdictional prerequisite.

Appellants improperly seek a second bite at the apple by their assertion of this

explanation now in this Court, instead of the trial court3, which is prohibited.

Gilstrap v. Calley, 2004 WL 2812881 (Tex. App. Houston [14th Dist.] Dec. 9,

2004).

       Appellants’ suggestion that their mistake should be excused because they are

pro se litigants cannot overcome the jurisdictional prerequisite of complying with

2
  The absence on the clerk’s docket sheet of the required notice of a default judgment does not
result in an inference of error and is not reversible error anyway. Ginn v. Forrester, 282 S.W.3d
430 (Tex. 2009) (clerk’s notation in record indicating the inability to locate documents that
notice was sent could not be construed as affirmative evidence that trial court failed to provide
notice.)
3
  Not to mention their attempt for a third bite of the apple by filing the notice of restricted appeal,
infra, on March 27, 2015.


                                                  13
Texas Rules of Civil Procedure 4.2 and Texas Rules of Civil Procedure 306(a)(5).

Appellees were entitled to offer controverting evidence of the date on which notice

of the judgment was received by Appellants, i.e. an affidavit of the trial court clerk.

Appellants’ attempt to bypass this hearing in the trial court ignores the clear

jurisdiction in this Court. Pro se litigants are held to the same standards of licensed

counsel. Id.; Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006). “To do

otherwise would give a pro se litigant an unfair advantage over a litigant who is

represented by counsel. McClain v. USA Today Newspaper, 2010 WL 2404651

(Tex. App. --Dallas June 17, 2010).

      The Appellants’ wish to now cast themselves as inexperienced defendants

who did not know what they were doing is quickly dispelled by their

acknowledgement that they would have filed a post-judgment motion or a timely

notice of appeal had they received notice of the default judgment within 30days of

the judgment, the clear inference being that they would not have filed the requisite

hearing in the trial court under Texas Rules of Appellate Procedure 4.2 and Texas

Rules of Civil Procedure 306(a)(5) or a request for findings of fact. See Response

Affidavits.

      The Court of Appeals has no choice but to dismiss for lack of subject matter

jurisdiction based on the failure of Appellants to either timely file their notice of

appeal or obtain a motion in the trial court to certify the date on which they


                                          14
acquired knowledge of the default judgment to extend the plenary power of the

trial court and, hence, the time within which to file a notice of appeal.

                          SECOND ISSUE PRESENTED

 THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND RETURN OF
                    SERVICE WERE VALID.

      Appellees do not dispute the well-established requirement of strict

compliance with the rules governing service of citation involving default

judgments; however, strict compliance with the rules does not require 'obeisance to

the minutest detail.' Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608,

613 (Tex. App.--Corpus Christi 1996, writ denied). Further, as long as the record

as a whole, including the petition, citation, and return, shows that the citation was

served on the proper defendant in the suit, service of process will not be

invalidated. Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus Christi

1996, no writ); Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d at 613;

Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.]

1987,writ ref'd n.r.e.). Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.

Austin 2004, pet. denied) (There was no confusion about whether the correct party

was actually served); see also Higginbotham v. General Life & Accident Ins. Co.,

796 S.W.2d 695, 696-97 (Tex. 1990) (although return did not recite method of

service as required, record demonstrated strict compliance with valid method of

service); Color Smart, Inc. v. Little, No. 04-00-00294-CV, 2001 WL 1230526, at

                                          15
*2 (Tex. App. – San Antonio, Oct. 17, 2001, no pet.) (not designated for

publication) ("Spelling errors, too minor to raise any doubt that the correct person

was served, are insufficient to invalidate service."); LEJ Dev. Corp. v. Sw. Bank,

407 S.W.3d 863, 866 (Tex. App. – Fort Worth 2013, no pet.); Herbert v. Greater

Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.]

1995, no writ)).

      Notwithstanding this requirement of strict adherence to rules governing

service, courts distinguish those cases holding that otherwise problematic service

of process will not be invalidated so long as the citation and return show with

reasonable certainty that citation was served on the proper defendant. See Cotton

Patch Cafe, Inc. v. McCarty, 2006 WL 563307, at *6 (Tex. App. -- Fort Worth

Mar. 9, 2006, no pet.); citing Regalado v. State, 934 S.W.2d at 854; Dezso v.

Harwood, 926 S.W.2d 371, 374 (Tex. App.--Austin 1996, writ denied) (upholding

default judgment even though wrong person was sued because record clearly

showed proper defendant received service and knew she was intended defendant.)

      In Williams, supra, the court of appeals held that even though the citation

omitted the name of the petitioner and was not directed to a sheriff or constable,

clearly not minor omissions, it otherwise complied with the requirements for

proper service of citation under Texas Rules of Civil Procedure 99(b). Williams v.

Williams, 150 S.W.3d at 444-445. The Williams court of appeals based their


                                        16
holding on the appellant’s testimony at her motion for new trial that she had been

served, that she had carefully read all of the papers served on her, and that,

although she had drafted an answer, she had not mailed it until after the default

judgment was rendered. Id. Because the appellant’s testimony left no question that

the correct defendant had been properly served, the court of appeals held that the

trial court did not err in assuming personal jurisdiction of appellant. Id. The court

explained that the purpose of requiring strict adherence to the rules governing

service of citation is to ensure that there is no question about whether the proper

party has been served before a default judgment is rendered. Id. at 444. “As long

as the record as a whole, including the petition, citation, and return, shows that the

citation was served on the defendant in the suit, service of process will not be

invalidated [italics added].” Id.

      A similar review herein of the record, including the petition, citations, and

returns, also leaves no question that before the default judgment was rendered, the

proper party defendants had been served. Further, both Elishah Sawyer and Robin

Sawyer acknowledge in their Affidavit that they “thought” they had timely e-filed

an answer on August 4, 2014 for the three Appellants, the irrefutable inference

being that Appellants, without stating in so many words, had been served and did

not dispute the propriety of service of process on them:

            “After I found out that Mark Carter and Sally Carter filed the Lawsuit
      through their attorney, Jaclyn D. Patton, I took steps to make sure that an
                                         17
      answer was filed in the lawsuit for myself (Elishah Sawyers), Robin
      Sawyers, and Pax Crate & Freight, Inc. I formed the belief by reading the
      citation that the answer of Elishah Sawyers, Robin Sawyers and Pax Crate &
      Freight, Inc., was due to be filed with the Clerk of the Waller County
      District Court on or before August 4, 2014. [Para.] I believed that a pro se
      answer had been e-filed on behalf of Elishah Sawyers, Robin Sawyers and
      Pax Crate & Freight, Inc. in the lawsuit on August 4, 2014. . . .”

      The Affidavits clearly establish that the proper Defendants were served with

citation and thought they had filed a timely answer, albeit there is no record of an

answer, hence the request for a default judgment. Appellants’ Affidavit testimony

that “after [they] found out [that Appellees filed the petition], they took steps to

make sure that an answer was filed [on August 4, 2014]” seems to be a

disingenuous exercise to avoid stating the obvious, that the petition had been

“served” on Appellants before they “attempted” to e-file an answer. Appellants’

testimony that they would have filed a motion for new trial within 30 days of

receiving notice of the default judgment further reinforces their recognition of the

service of process as proper and not defective. Therefore, this Court should

overrule Appellants’ eight assertions of error (issues two through nine) because

there is no question that the proper parties were served.

      Nevertheless, in the event that this Court disagrees with the foregoing

argument for proper service, in the alternative, Appellees assert the following

argument: Despite the various errors asserted in issues two through nine, a review

of the record, citations, returns and petition show strict adherence to the


                                          18
requirements for proper service of citation under Texas Rules of Civil Procedure

99(b), as follows:

      a.     In the second issue, Appellants argue that error is apparent on the face

      of the record because of the absence of Elishah Sawyer’s signature on the

      certified mail return receipt. The record, including the petition and affidavits

      attached to the petition, establishes or raises a presumption that Appellant

      Robin Sawyers is Elishah Sawyers’ wife (CR 4 -25, 30) who signed, as his

      agent, the certified mail return receipt for the service of process and petition

      that were addressed to Elishah Sawyers at their last known address of 23658

      Margerstadt Road, Hockley, Texas 77447. CR 43. The signature box on the

      return indicated that Robin Sawyers was signing either as the “addressee” or

      “agent” of the addressee, depending on which box was checked. CR 34.

      Since Robin Sawyers is not the “addressee”, then it is reasonable that the

      trial court, not presented with controverting evidence, presumed that she

      intended to sign as her husband’s agent. Furthermore, nowhere in the record

      or in Appellant Elishah Sawyer’s Affidavit has he disputed his wife’s

      authority to sign as his authorized agent. Thus, this Court should overrule

      this second issue.

             b.      In the third issue, Appellants argue that error is apparent on the

      face of the record because the two returns of service addressed to Elishah


                                           19
Sawyers and Robin Sawyers fail to state the date and time that the process

was received for service as required by Texas Rules of Civil Procedure

107(b)(4).

      Rule 106 (a) (2) of the Texas Rules of Civil Procedure allows as a

valid method service by certified mail, return receipt requested with a copy

of the citation and petition attached. Rule 107(b) requires eleven items to be

included in “the return, together with any documents to which it is attached

(italics added).” Tex. R. Civ. P. 107 b. A review of the record shows that

the Appellees requested that citations be issued on July 9, 2014 and then

again on July 10, 2014, both file-stamped by the Waller County District

Clerk. The return of service together with the documents attached thereto

indicate the date and time that the Waller County District Clerk’s office

issued the process for service on July 11, 2014 and the date that the certified

mail was served on Appellants on July 14, 2014, as indicated on the green

cards (CR 30 – 34). It is irrefutable that the clerk delivered the service

documents to the US Mail Service between July 11 th and 14th. Therefore,

based on the foregoing and the absence in Appellants’ brief of a denial that

the clerk performed this step, the Appellate Court should overrule this issue.

      c.     In the fourth issue, Appellants argue that error is apparent on

the face of the record because the citation issued to Appellant Pax Crate &


                                   20
Freight, Inc. omitted the “Inc.” in violation of Texas Rules of Civil

Procedure 99(b)(8).

      Because a review of the record, the citation, petition, and return of

service shows that the correct name of the Appellant with the “Inc.” included

has been served (CR 3 -4), the omission of “Inc.” after “Pax Crate &

Freight” in the citation should not invalidate service of process. The purpose

of citation of service is to give notice to a defendant that he has been sued,

by whom, and for what so that due process may be effected and the

defendant may appear and defend the claims against him. See Stephenson v.

Corporate Servs., Inc., 650 S.W.2d 181, 182-183 (Tex. App. – Tyler 1983,

writ ref’s n.r.e.) (“[O]mission of a corporate designation from the return of

service did not invalidate service when the citation and attached petition

both fully named the defendant with the proper designation.” Therefore, this

issue should be overruled.

      d.     In the fifth issue, Appellants argue that error is apparent on the

face of the record because the return of service addressed to Pax Crate &

Freight was served on Elishah Sawyer and not on Pax Crate & Freight, Inc.

      Service was made on the Pax Freight & Crate, Inc.’s authorized agent,

Elishah Sawyer, whose agency relationship with that entity is established in

the petition. CR 3 - 4. “A recital in a petition that names a person or entity


                                   21
as the registered agent for service on the defendant is prima facie evidence

of that fact [citations omitted].” Cont’l Cas. Co. v. Guzman, No 04-07-

00589-CV, 2009 WL 136926, at *5 (Tex. App. –San Antonio Jan. 21, 2009,

pet. denied).

      Service on Appellant Pax Crate & Freight, Inc. was proper because

the record, including the citation, petition and return, properly names the

corporate Appellant and shows service upon its authorized agent: the

petition properly names “Defendant Pax Crate & Freight, Inc. [that] may be

served with citation in this cause by serving its registered agent for service,

Elishah Sawyers”; the citation is directed to “Pax Crate & Freight, by

serving its authorized agent Elishah Sawyer”, and the return names “Elishah

Sawyer”. CR 3 - 4, 35.

      Appellants cited as authority Reed Elsevier, infra, in arguing improper

service on Pax Crate & Freight based on the return indicating service only

on “Elishah Sawyer”. However, that case is distinguishable. The record in

the current case, unlike the record in Reed Elsevier, describes the

relationship between Pax Crate & Freight, Inc. and the person served,

“Elishah Sawyer”, as the registered agent for the corporation. CR 3 -4. See

Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180




                                   22
S.W.3d 903, 905-06 (Tex. App. – Dallas 2005, pet. denied). Therefore, the

Appellate Court should overrule the fifth issues.

      e.     In the sixth issue, Appellants argue that error is apparent on the

face of the record because the returns of service pertaining to Elishah and

Robin Sawyers fail to correctly state the address served in violation of

107(b)(6) because of an “(s)” that is randomly placed after the zip code of

the address on the returns. The return receipts (the “green cards”) have the

correct address. CR 34. Appellees assume that Appellants are referring to

the “(s)” following the zip code on the “certificate of delivery by mail”

located at the bottom of the same page as the citation. CR 32 – 33.

      As stated above, strict compliance with the rules does not require

'obeisance to the minutest detail.' Ortiz v. Avante Villa at Corpus Christi,

Inc., 926 S.W.2d at 613 (omission of accent mark and of corporate

designation and substitution of symbol " at " for word "at" are defects that do

not invalidate service); see also Cockrell v. Estevez, 737 S.W.2d 138, 140

(Tex. App.--San Antonio 1987, no writ) (misspelling of defendant's name in

citation did not invalidate service); Payne & Keller Co. v. Word, 732 S.W.2d

38, 41 (Tex. App. Houston [14th Dist.] 1987, writ ref’d. n.r.e.) (judgment

upheld where petition and citation reflected registered agent as "Philippe

Petitfrere," and return reflected "Philipee Petitfreere").


                                    23
      In another case involving service of process and a questionable zip

code, the court of appeals held that service of citation was not defective

based on an incorrect digit in the zip code on the return. Cotton Patch Cafe,

Inc. v. McCarty, 2006 WL 563307 (Tex. App. Fort Worth Mar. 9, 2006, no

pet.). “[T]he return clearly complies with the requirements of Rule 107, but

simply contains an incorrect final numeral in the registered agent's zip code.

The zip code in McCarty's petition correctly states that the registered agent's

zip code is "75063," the citation contains the correct zip code on the same

page as the officer's return, and Cotton Patch does not argue that it was not

served.”                                                                     Id.

      Rule 107 (b) requires the eleven required items to be included in “the

return, together with any documents to which it is attached (italics added).”

Tex. R. Civ. P. 107 (b). A review of the record herein shows that but for the

“(s)” after the zip code in the “certificate of delivery by mail”, the addresses

of Appellants Elishah and Robin Sawyer are identical on the petition,

citation, and return receipts, all which omit any “(s)” after the zip code.

Similar to Cotton Patch, supra, the petition and citation state the correct zip

code and there is a slight discrepancy in the address in a different section of

the record.




                                   24
      Appellants’ citation to Marquez v. Greig ex rel. Texas Stars

Cheerleading, 2012 WL 3228710, No. 01-10-01118-CV, op. at 3 (Tex. App.

–Houston [its Dist.] 2012, no pet.) (mem. op.) should be rejected as

authority. That case is distinguishable. In addition to the presence of a minor

discrepancy in the service address, the return was marked “unclaimed”.

      Thus, because Appellants do not claim in their brief that they did not

receive service, and because the citation and petition show that citation was

actually served on Appellants at the correct address with the correct zip

code, the trial court should not be deprived of jurisdiction because of the

minor discrepancy of the addition of the “(s)” after the zip code.

      f.     In the seventh and eighth issues, Appellants argue that error is

apparent on the face of the record because the returns of service and

citations, respectively, fail to provide an accurate description of what

pleading was served as required by Texas Rules of Civil Procedure 107(b)

(3) and Texas Rules of Civil Procedure 99(b)(4). Rule 107(b) requires

eleven items to be included in “the return, together with any documents to

which it is attached (italics added).” Tex. R. Civ. P. 107 (b). A review of the

record shows 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”. The Supreme Court case submitted


                                   25
by Appellants is distinguishable because, unlike in the current case, the

petition attached to the return was a prior version that had omitted the name

of the defendant. Primate Construction, Inc. v. Silver, 884 S.W.2d151 (Tex.

1994). The Appellate Court should overrule this eighth issue.

      g.     In the ninth issue, Appellants assert as error that the returns of

service do not indicate a clerk’s file mark indicating proof of service and,

therefore, it is not possible to show that the proof of service was on file for

ten days, exclusive of the day of filing and the day of judgment as required

by Texas Rules of Civil Procedure 107(h). However, rule 107(h) provides

that the proof of service that is required to be on file with the clerk of the

court for the ten day period is to be “as ordered by the court in the event

citation is executed by an alternative method under Rule 106.” The

alternative method under Rule 106 (a) (2) refers to service by certified mail,

as was done in this case. In the current case, the citation instructs that the

return must be attached to the citation pursuant to Rule 106 (a) (2) and the

return receipts that are attached as instructed show that Elishah and Robin

Sawyer were served on July 14, 2014 (CR 33 – 34). Since the default

judgment was granted almost two months later on September 12, 2014. CR

50 – 51, the required 10-day period was met. See Lefton v. Griffith, 136

S.W.3d 271 (Tex. App. San Antonio 2004, no pet.). The presumption that


                                   26
      the procedure and method of service followed by the trial court clerk to

      deliver citation of service by certified mail was “as ordered by the court” has

      not been rebutted in Appellants’ brief. Accordingly, the return of service was

      on file for the ten day period required under Texas Rules of Civil Procedure

      107(h) before the default judgment was granted. Therefore, the Court should

      overrule this issue.

                             THIRD ISSUE PRESENTED

             THE JUDGMENT IS FINAL AND APPEALABLE, NOT
                         INTERLOCUTORY.

      "A judgment issued without a conventional trial on the merits is final for

purposes of appeal if and only if either it actually disposes of all claims and parties

then before the court, regardless of its language, or it states with unmistakable

clarity that it is a final judgment as to all claims and parties. [Italics added.]"

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). “[It is necessary

to] divine the intention of the trial court from the language of the decree and the

record as a whole, aided on occasion by the conduct of the parties." In re Griffith,

2003 WL 21508337, at *1 (Tex. App.--San Antonio July 2, 2003, mandamus

denied). "An order can be a final judgment for appeal purposes even though it

does not purport to be if it actually disposes of all claims still pending in the case."

Lehmann v. Har-Con Corp., 39 S.W.3d at 204. The absence of a Mother Hubbard

recital is not determinative. Id. at 199-200. “The standard Mother Hubbard clause

                                          27
is used in interlocutory orders so frequently that it cannot be taken as any indicator

of finality.” Id. at 204; Zamarripa v. Sfuentes, 929 S.W.2d 655, 657 (Tex. App.-

San Antonio 1996, no writ).

      A review of the record in this case when considered in conjunction with the

conduct of the parties confirms the finality of the judgment because it disposes of

all claims – in effect, the judgment has a “distinct stamp of finality.” See In re

Griffith, 2003 WL 21508337 at *4. Contrary to Appellants’ claim that the default

judgment failed to dispose of the request for prejudgment interest and injunctive

relief, Appellees’ request for prejudgment interest was abandoned and the

judgment disposes of the request for injunctive relief.

      Pre-judgment Interest:     Appellants cite to Rosedale Partners v. 131st

Judicial Dist. Court, 869 S.W.2d 643, 648 (Tex. App. San Antonio 1994) for

authority for their claim that the absence of an award for prejudgment interest

renders the default judgment an interlocutory judgment.           In fact, this case

additionally serves as authority for the Appellees’ claim that they abandoned their

claim for prejudgment interest. The appeals court in Rosedale, supra, held that the

judgment was interlocutory, in part, because the default judgment failed to include

an award of prejudgment interest. The Rosedale court of appeals stated that “it

[was] crucial for us to know when Rosedale decided to abandon or waive its

remaining requests [for prejudgment interest].” Id. Because nothing in the record


                                         28
indicated the date on which the claim was abandoned, the court was unable to

consider whether or not the claim for prejudgment interest was abandoned. Id., see

also Jones v. Griege, 803 S.W.2d 486, 487-88 (Tex. App.--Dallas 1991, no writ)

(“Griege's notice to the appellate court of his decision to waive the request for

punitive damages established that the judgment was now final and the appellate

court had jurisdiction over the appeal.” )

       Unlike Rosedale, supra, in the current case, there is a date on which the

claim was abandoned – September 23, 2014, the date on which the trial clerk

prepared abstracts of judgment upon the implied request of the Appellees. CR 52 -

55.4 Therefore, the absence of an award of prejudgment interest does not negate

the finality of the default judgment.

       Injunctive Relief: As to Appellants’ claim that the judgment is interlocutory

because it did not dispose of the request for injunctive relief, their argument has no

merit. In an appeal from a permanent injunction, the standard of review is whether

the trial court committed a clear abuse of discretion. Priest v. Texas Animal Health

Comm'n, 780 S.W.2d 874, 875 (Tex. App.-Dallas 1989, no writ).


4
        The other two cases cited to by Appellants on the issue of the award of prejudgment
interest are also distinguishable from the current case: in Hunt Oil Co. v. Moore, 639 S.W.2d 459
(Tex. 1982), there was no argument presented for the abandonment of the claim for prejudgment
interest; in Sheik Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP, 2011 WL 3964573
(Tex. App. Dallas Sept. 9, 2011), the appellant had been requested to brief the issue of the
finality of the judgment from the standpoint of the pending claim of prejudgment interest, but
appellants addressed a different issue instead, omitting to brief the issue of finality, leaving the
court no choice but to dismiss as an interlocutory judgment.
                                                29
      Texas Rules of Civil Procedure 683 requires that every order granting an

injunction shall do the following: (1) set forth the reasons for its issuance, (2) be

specific in terms, (3) describe in reasonable detail and not by reference to the

complaint or other document, the act or acts sought to be restrained, (4) be binding

only on the parties to the actions and their agents and those persons in active

concert or participation with them who receive actual notice of the order. See Tex.

R. Civ. P. 683; see also Adjust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex.

App.-Corpus Christi 1999, no pet.) (If a plaintiff seeks injunctive relief that is

ancillary to other relief sought, Rule 683 applies to permanent injunctions.) "It is

not essential that the judgment in express terms specifically dispose of each issue.

That it does dispose of a particular issue may be inferred from other provisions

thereof, provided such an inference follows as a necessary implication." Davis v.

McCray Refrigerator Sales Corp., 150 S.W.2d 377, 377-78 (Tex. 1941).

      In this case, the injunction language in the default judgment complies with

Texas Rules of Civil Procedure 683 or that compliance may be inferred from other

provisions in the default judgment that follow as a necessary implication. The first

order of injunctive relief is an “injunction against unreasonable and excessive noise

and dust created by the riding of large dirt bikes on Defendants' property”. CR 50

– 51. The second order of injunctive relief is an “injunction against moving




                                         30
Defendants' crating business, Pax Crate and Freight, Inc., to Defendants'

Margerstadt Road property”. CR 50 – 51.

      Regarding the first injunction, the reason for its issuance is incorporated in

the injunction itself – to wit, “the unreasonable and excessive noise and dust

created by the riding of large dirt bikes”. CR 50 – 51. The specificity of the

“property” may be inferred from reading both injunctions together that the

“property” referred to in the first injunction is the property of Elishah and Robin

Sawyers on Margerstadt Road; the injunction language describes in reasonable

detail the activity sought to be restrained - the riding of large dirt bikes on the

Defendants Sawyers’ Margerstadt property,         and it is clear that the restricted

activity is binding on Defendants Sawyers and anyone on their Margerstadt Road

property. CR 50 – 51. The second injunction is also in compliance as the required

information is either clear or can be naturally implied that Defendant Pax Crate

and Freight, Inc. is prohibited from being moved to the Margerstadt property of

Defendants Elishah and Robin Sawyers. CR 50 – 51. As the two injunctions are in

compliance with Texas Rules of Civil Procedure 683, the trial court did not abuse

its discretion in disposing of the request for injunctive relief. CR 50 – 51.

      Appellants now would have this Court treat the judgment as interlocutory

despite their treatment of the default judgment as final by filing a notice of appeal,

albeit untimely. CR 60 – 61. A further indicator of their recognition of the


                                          31
judgment as final is found in the Affidavits where they acknowledge that had they

acquired actual notice of the default judgment within 30 days of the signing of the

default judgment, they would have filed a motion for new trial, the irrefutable

inference being that they would have treated the default judgment as a final

judgment. And, lastly, they also filed the notice of appeal indicating their treatment

of the judgment as final. CR 60 – 61. See also Fluor Daniel, Inc. v. H.B. Zachary

Co., Inc., 2005 WL 2559773, *3 (Tex. App. – Corpus Christi Oct 13, 2005, pet.

denied) (mem. op.) (citing Lehmann v. Har-Con Corp., 39 S.W.3d at 203); see also

Jones v. Rabson & Broocks, LLC, 2003 WL 302439, at *3 (Tex. App. – Houston

[1sst Dist.] Feb. 13, 2003, no pet.)(mem. op.) (The appellate court considered the

defendant’s treatment of the judgment as final by the filing of a motion for new

trial and notice of appeal in its decision to confirm the lower court summary

judgment as a final judgment.)

      In addition to the foregoing, the following indicators reinforce the finality of

the default judgment: (1) the judgment awarded court costs and postjudgment

interest which, by definition, cannot begin to accrue until after a final judgment;

(2) when construed with the award of postjudgment interest and costs, and the

disposition of all claims and parties as shown hereinabove, the judgment’s

recitation that the judgment is available for execution, although not determinative,

reinforces the court’s intent that the judgment is final; (3) the absence of a Mother


                                         32
Hubbard clause is not determinative; and (4) the trial court clerk recognized the

judgment as final based on her issuance of abstracts of judgment and the

preparation of a writ of execution. CR 50 – 51.

      It is patently clear from the judgment and conduct of the trial court and the

parties that the default judgment is final and appealable. Even if, arguendo, the

default judgment awards more relief that that to which Appellees are entitled, the

judgment is still final, not interlocutory as argued by Appellants. See Lehmann v.

Har-Con Corp., 39 S.W.3d at 204 (“Granting more relief than the movant is

entitled to makes the judgment reversible, but not interlocutory [citations

omitted].”)

      Based on the foregoing argument and authorities, the errors asserted by

Appellants regarding whether or not the default judgment is final and appealable

should be overruled. A review of the record, the judgment itself, the actions of the

district trial clerk, the treatment of the default judgment as final by the Appellants,

and the indication of abandonment of the request for prejudgment interest by

Appellants all lend a “distinct mark of finality” to the default judgment.

      However, in the alternative, should this Court be uncertain about the trial

court's intent as to the finality of the judgment, the Court may "abate the appeal to

permit clarification by the trial court." Id. at 206; see also Fresh Coat, Inc. v. Life

Forms, Inc., 125 S.W.3d 765, 768 (Tex. App. – Houston [1st Dist.] 2003, no pet.)


                                          33
(“[T]he Texas Supreme Court has suggested that, in a case in which we are

uncertain about the trial court's intent in signing a judgment, we may abate the

appeal to permit clarification by the trial court.").

                           FOURTH ISSUE PRESENTED

         FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE
       AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES.
      In Appellants’ tenth point of error, they contend that the trial court erred by

awarding unliquidated damages without an evidentiary hearing. However, this

Court should overrule Appellants’ point of error because Appellees’ claims for

attorney’s fees and damages were properly pled and probative admissible evidence

in the form of affidavit testimony was properly considered by the trial court.

      When a no-answer default judgment is entered against a party on an

unliquidated claim, the non-answering party is deemed to have admitted all facts

properly pleaded, except for the amount of damages. Texas Commerce Bank, Nat'l

Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999); Holt Atherton Indus., Inc. v. Heine,

835 S.W.2d 80, 83 (Tex. 1992); Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). "After a default judgment occurs,

unliquidated damages must be proven to the trial court." Lucas v. Clark, 347

S.W.3d 800, 803 (Tex. App.—Austin 2011, pet. denied). Unliquidated damages

can be proved up to the trial court through an evidentiary hearing or with affidavits.



                                           34
Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d at 515 - 517 (A trial court

does not err when it considers affidavits in rendering a default judgment.)

      Attorney’s Fees:    “An uncontested affidavit that establishes a prima facie

case for attorney's fees is legally sufficient to support an attorney's fees award.”

Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d at 515. Clear, direct, and

uncontroverted evidence of attorney's fees is taken as true as a matter of law,

particularly when the opposing party does not rebut the evidence. See Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990).

      In this case, Appellees’ attorney submitted an affidavit of necessary and

reasonable attorney’s fees that serves as admissible evidence and was before the

trial court. She testified that she is a duly licensed attorney who is familiar with

the usual and customary attorney’s fees in Waller County, and that $10,000.00 was

a reasonable and customary fee for prosecuting this claim based on her knowledge

of the services rendered to the Carters in this case. Texas Commerce Bank, Nat'l

Ass'n v. New, 3 S.W.3d at 515 - 518.           Appellees’ attorney’s uncontroverted

affidavit is sufficient to support the award of attorney's fees. CR 45 – 48.

      Appellants also do not dispute the reasonableness and necessity in their

Brief; they merely oppose the absence of an oral hearing. However, an oral

hearing is not mandatory where affidavit testimony is before the court, as in the

current case. Id. And, "[t]he court may take judicial notice of the usual and


                                          35
customary attorney's fees and the contents of the case file without receiving further

evidence in … a proceeding before the court." See Tex. Civ. Prac. & Rem §

38.004; Lefton v. Griffin, 136 S.W.3d, 271, 279 – 80 (Tex. App.-San Antonio

2004, no pet.) (holding in a nonjury case that an appellate court may presume that

the trial court took judicial notice even if the judge did not announce that he was

doing so). Thus, the judgment for attorney's fees herein finds support factually and

legally.

       Monetary damages:            In this case, the court granted damages without

identifying the theory of liability on which the damages were granted. CR 51.

However, it is not necessary for a judgment to identify on which theory it granted

damages, particularly in a default context where liability has already been

established on all theories of recovery. See Gardner v. U.S. Imaging, Inc. 274

S.W.3d 669, 671 (Tex. 2008); Lehmann v. Har-Con Corp., 39 S.W.3d at 204

("Granting more relief than that to which a movant is entitled makes the order

reversible, but not interlocutory.")

       In a nuisance action, a plaintiff may recover damages for a personal injury

caused by the nuisance, such as discomfort, annoyance, and injury to health, in

addition to damages to property.5 Day v. Tripp, 1999 WL 546869 (Tex. App.

Austin July 29, 1999); see also Daniel v. Fort Worth & Rio Grande Ry. Co., 72

5
 The plaintiff may recover damages for discomfort and annoyance even absent depreciation of
the real property caused by the nuisance. Day v. Tripp, 1999 WL 546869.
                                             36
S.W.578 (Tex. 1902). The measure of damages for discomfort and annoyance is

the amount of money necessary to provide the plaintiff reasonable and fair

compensation for such personal injury. Id. at 579.

      Appellees’ affidavits constitute sufficient uncontroverted evidence of

personal injury caused by the nuisance that is sufficient factually and legally to

support the award of damages. It is error for a trial court to not consider the

affidavits. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 811(Tex. App.

Waco 2007, no pet.). Hearsay is even admissible to support a default judgment for

attorney’s fees and damages. Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d

at 517, citing Irlbeck v. John Deere Co., 714 S.W.2d 54 (Tex. App. Amarillo 1986,

no writ).

      When challenging the legal sufficiency of the evidence on an issue, the party

without the burden of proof on that issue must show that there is “no evidence” in

support of the default judgment. Sutton v. Hisaw & Assocs. Gen. Contrs., Inc., 65

S.W.3d 281, 284 (Tex. App. Dallas 2001, pet. denied). The court considers only

the evidence and inferences tending to support the trial court's finding, and

disregards all evidence and inferences to the contrary. Southwestern Bell Mobile

Sys. v. Franco, 971 S.W.2d 52, 54 (Tex. 1997) (per curiam). If more than a

scintilla of evidence supports the judgment, the judgment will be upheld. Sutton v.

Hisaw & Assocs. Gen. Contrs., Inc., 65 S.W.3d at 284.


                                        37
      The testimony of Appellees is probative on their personal injury damages

and more than a scintilla of evidence has been presented by the affidavits that they

suffered personal and property damages as a result of the private nuisance created

by Appellants. CR 2 – 18. The affidavits of Appellees (CR 8 – 18) are factually

and legally sufficient to support the trial court’s findings that the monetary

damages of Appellees are reasonable and fair compensation to Appellees. CR 8 –

18. If, arguendo, this Court finds otherwise, the Court may remand the issue of

damages to the trial court.

                                     PRAYER

      Based on the foregoing, Appellees Mark and Sally Carter pray that the

Appellate Court dismiss this appeal for lack of subject matter jurisdiction. In the

alternative, Appellees pray that this Court confirms the default judgment. In the

event this Court seeks further clarification regarding the finality of the judgment,

Appellees pray that this Court abate the appeal to seek clarification in the trial

court as to the finality of the default judgment. In the event this Court finds error

regarding the award of attorney’s fees and damages, Appellees pray that this Court

remand the issue of damages to the trial court.




                                         38
                                      Respectfully submitted,

                                      TOUGH LAW FIRM, PLLC

                                         /s/ Bruce C. Tough
                                      Bruce C. Tough
                                      btough@toughlawfirm.net email
                                      State Bar No. 20151500
                                      819 Crossbridge Drive
                                      Spring, Texas 77373
                                      (281) 681-0808 telephone
                                      (281) 681-0809 telecopy
                                      Lead Counsel for Appellees
                                      Mark Carter and Sally Carter

                           Certificate of Compliance
      Based upon the word counting function of Windows, this Brief of Appellees
contains 9,106 words excluding the portions of the brief excluded in Texas Rule of
Appellate Procedure 9.4(i)(1).




                                        39
                               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 8th
day of April, 2015, as follows:

Scott Rothenberg
LAW OFFICES OF SCOTT ROTHENBERG
2777 Allen Parkway, Suite 1000
Houston, Texas 77019-2165
(713) 667-0052 telecopier
scott@rothenberglaw.com email
Counsel for Appellants
Elishah Sawyers; Pax Freight &
Crate, Inc.; and Robin Sawyers
                                               /s/ Bruce C. Tough
                                              Bruce C. Tough




                                         40
|   | Positive
As of: April 7, 2015 5:29 PM EDT


                                    Adust Video v. Nueces County
                            Court of Appeals of Texas, Thirteenth District, Corpus Christi
                                   May 20, 1999, Delivered ; May 20, 1999, Filed
                                               NUMBER 13-95-239-CV

Reporter
996 S.W.2d 245; 1999 Tex. App. LEXIS 3790

ADUST VIDEO, Appellant, v. NUECES COUNTY,                      not apply to a permanent injunction which was the sole
TEXAS, Appellee.                                               relief sought. The court further found that the injunction
                                                               was reasonably specific. The court determined that the
Prior History: [**1] On appeal from the 105th District         injunction did not violate appellant's patrons' free speech
Court of Nueces County, Texas.                                 rights when the time, place, and manner restrictions
                                                               imposed were justifiable without reference to the content
Disposition: As modified, AFFIRMED.                            of regulated speech and were narrowly tailored and left
                                                               ample alternative communication channels. The court
Core Terms                                                     struck the injunction provision that required patrons'
                                                               identification because it exerted an impermissible
injunction, premises, inspection, sexual activity, patrons,    inhibitory effect. The court also struck the entry receipt
theater, nuisance, warning, booths, conditions,                requirement as unreasonable.
warrantless, issuance, disease, notice, rights, sexual,
permanent injunction, restrained, adult, unsanitary            Outcome
condition, public health, requires, violates, safety code,
trial court, peep show, restrictions, visibility, operators,   The court affirmed as modified a permanent injunction
temporary                                                      in appellee's favor, because the injunction was
                                                               reasonably specific and sought protection of the public
Case Summary                                                   from a public health nuisance. The court struck
                                                               reporting, random inspection, patron entry receipt, and
                                                               identification requirements because they were not
Procedural Posture
                                                               reasonably related to the public health nuisance and
Appellant sought review of judgment which issued an            had an impermissible inhibitory affect upon patrons'
injunction on the basis of a public nuisance under Tex.        free speech.
Health & Safety Code Ann. §§ 341 and 343 (Vernon
1992 & Supp. 1999), in appellee's favor in the 105th           LexisNexis® Headnotes
District Court of Nueces County (Texas).
                                                                 Civil Procedure > Appeals > Reviewability of Lower Court
Overview                                                         Decisions > Preservation for Review

Appellant adult store owner challenged an injunction           HN1 The party who seeks appellate review of a
issued in appellee public health department's favor for a      particular point is responsible for presenting a complete
public nuisance under Tex. Health & Safety Code Ann.           record on that point because it has the burden of
§§ 341 and 343 (Vernon 1992 & Supp. 1999). Appellee            proving error.
contended that unsanitary conditions that occurred
through sexual activity on appellant's premises created          Civil Procedure > Remedies > Injunctions > Permanent
a public health nuisance. The court rejected the                 Injunctions
argument that the injunction violated civil procedure by
failing to define what unsanitary conditions existed. The      HN2 The court presumes the evidence supports
court explained the detailed explanation provision did         injunctive relief.
                               996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1


  Civil Procedure > Remedies > Injunctions > Permanent            Civil Procedure > ... > Justiciability > Standing > General
  Injunctions                                                     Overview
                                                                  Constitutional Law > ... > Fundamental Freedoms >
HN3 Tex. R. Civ. P. 683, provides: every order granting
                                                                  Freedom of Speech > General Overview
an injunction and every restraining order shall set forth
the reasons for its issuance; shall be specific in terms;         Constitutional Law > ... > Fundamental Freedoms >
shall describe in reasonable detail and not by reference          Freedom of Speech > Scope
to the complaint or other document, the act or acts
sought to be restrained.                                        HN10 In the U.S. Const. amend. I context, litigants are
                                                                permitted to challenge a statute not because their own
  Civil Procedure > Remedies > Injunctions > Preliminary &      rights of free expression are violated, but because of a
  Temporary Injunctions                                         judicial prediction or assumption that the statute's very
                                                                existence may cause others not before the court to
HN4 The Tex. R. Civ. P., provision compelling a detailed        refrain from constitutionally protected speech or
explanation of the reason for the injunction's issuance is      expression.
held only to apply to temporary injunctions or suits
requesting ancillary injunctive relief.                           Constitutional Law > ... > Fundamental Freedoms >
                                                                  Freedom of Speech > Scope
  Civil Procedure > Remedies > Injunctions > Permanent            Constitutional Law > ... > Fundamental Freedoms > Judicial
  Injunctions                                                     & Legislative Restraints > Overbreadth & Vagueness of
                                                                  Legislation
HN5 A permanent injunction should not be more
comprehensive or restrictive than justified by the                Constitutional Law > ... > Fundamental Freedoms > Judicial
pleadings, evidence, and usages of equity.                        & Legislative Restraints > Time, Place & Manner
                                                                  Restrictions
  Civil Procedure > Remedies > Injunctions > Permanent
                                                                HN11 Restrictions merely on the time, place, or manner
  Injunctions
                                                                of exercise of free speech rights violate no constitutional
HN6 An injunction decree must be as definite, clear,            protections if sufficiently justified and narrowly enough
and precise as possible and when practicable it should          drawn.
inform the defendant of the acts he is restrained from
doing, without calling on him for inferences or                   Constitutional Law > ... > Fundamental Freedoms > Judicial
conclusions about which persons might well differ and             & Legislative Restraints > Time, Place & Manner
                                                                  Restrictions
without leaving anything for further hearing.
                                                                HN12 The government may impose reasonable
  Public Health & Welfare Law > Healthcare > Public Health
                                                                restrictions of the time, place, or manner of protected
  Security > Communicable Diseases
                                                                speech, provided restrictions are [1] justified without
HN7 "Sanitary" is defined as a condition of good order          reference to the content of the regulated speech, that
and cleanliness that precludes the probability of disease       they are [2] narrowly tailored to serve a significant
transmission under Tex. Health & Safety Code Ann.               governmental interest, and that they [3] leave open
§341.001(7) (Vernon 1992).                                      ample alternative channels for communication of the
                                                                information.
  Civil Procedure > Remedies > Injunctions > Permanent
  Injunctions                                                     Civil Procedure > Remedies > Injunctions > Permanent
                                                                  Injunctions
HN8 When the purpose of an injunction is to protect the
public, the test of required specificity is reasonableness,     HN13 Where the acts of the parties are divisible
and in framing the decree, doubt should be resolved             regarding lawful and unlawful conduct, an injunction
against the violator.                                           may not be framed so broadly so as to prohibit the
                                                                enjoyment of lawful rights.
  Civil Procedure > ... > Justiciability > Standing > General
  Overview                                                        Constitutional Law > ... > Fundamental Freedoms > Judicial
                                                                  & Legislative Restraints > Time, Place & Manner
HN9 A party may only assert a violation of its own rights.        Restrictions
                                                                                                               Page 2 of 10
                              996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1


HN14 A city has a substantial interest in regulating            Criminal Law & Procedure > Search & Seizure >
sexually-oriented businesses.                                   Warrantless Searches > General Overview

                                                              HN21 A warrantless search of commercial premises
  Civil Procedure > Remedies > Injunctions > Permanent
                                                              may be reasonable when the business is closely
  Injunctions
                                                              regulated. In such a case the privacy interests of the
  Civil Procedure > Appeals > Standards of Review > Abuse     owner are weakened and the government interest in
  of Discretion                                               regulating are higher.
  Civil Procedure > ... > Standards of Review > Harmless &
                                                                Constitutional Law > ... > Fundamental Rights > Search &
  Invited Errors > General Overview
                                                                Seizure > Scope of Protection
  Civil Procedure > Appeals > Standards of Review >             Criminal Law & Procedure > Search & Seizure >
  Prejudicial Errors                                            Expectation of Privacy

HN15 The standard of review when a trial court grants         HN22 The expectation of privacy that the owner of
or denies a permanent injunction is limited to whether        commercial property enjoys may, in certain
the trial court clearly abused its discretion.                circumstances, be adequately protected by regulatory
                                                              schemes authorizing warrantless inspections.
  Criminal Law & Procedure > ... > Sex Crimes > Obscenity >
  General Overview                                              Constitutional Law > ... > Fundamental Rights > Search &
                                                                Seizure > Scope of Protection
HN16 Sexual activity in public places is prohibited by
the Texas Penal Code. See Tex. Penal Code Ann.                  Business & Corporate Compliance > ... > Occupational
                                                                Safety & Health > Administrative Proceedings > Citations
§§21.07, 21.08 (Vernon 1994). Theaters and retail
                                                                & Inspections
shops open to the public are public places.
                                                              HN23 Where congress has authorized inspection but
  Constitutional Law > ... > Fundamental Rights > Search &    made no rules governing the procedures that inspectors
  Seizure > Scope of Protection                               must follow, the U.S. Const. amend. IV, and its various
                                                              restrictive rules apply.
HN17 Patrons of adult video theaters have no right to
anonymity in viewing films.                                     Constitutional Law > ... > Fundamental Rights > Search &
                                                                Seizure > Warrants
  Constitutional Law > ... > Fundamental Freedoms >
  Freedom of Speech > Scope                                     Criminal Law & Procedure > Search & Seizure > Search
                                                                Warrants > General Overview
HN18 The U.S. Const. amend. I also protects against
                                                              HN24 The regulatory statute must perform the two
government inhibition as well as prohibition.
                                                              basic functions of a warrant: it must advise the owner of
  Constitutional Law > ... > Fundamental Freedoms >
                                                              the commercial premises that the search is being made
  Freedom of Speech > Scope                                   pursuant to law and has a properly defined scope, and
                                                              it must limit the discretion of the inspecting officers.
HN19 An identification requirement exerts an inhibitory
effect and therefore raises U.S. Const. amend. I issues       Counsel: FOR APPELLANT: John J. Fahle, III, Attorney
comparable to those raised by direct government               at Law, San Antonio, TX.
imposed prohibitions.
                                                              FOR APPELLEE: Walter D. Bryan, Assistant County
  Constitutional Law > ... > Fundamental Rights > Search &    Attorney, Sandra Huhn, Nueces County Attorney's
  Seizure > Warrants                                          Office, Annette L. Smith, Assistant District Attorney, Carl
  Criminal Law & Procedure > Search & Seizure > Search        Lewis, County Attorney, Corpus Christi, TX.
  Warrants > General Overview
                                                              Judges: Before Chief Justice Seerden and Justices
HN20 A warrant is generally required for authorities to       Dorsey and Hinojosa. Opinion by Justice Dorsey.
search portions of a commercial enterprise that are not
open to the public.                                           Opinion by: J. BONNER DORSEY
                                                                                                            Page 3 of 10
                                996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1



Opinion                                                         premises. In addition to provisions requiring a general
                                                                increase in lighting throughout the establishment, the
[*248] OPINION                                                  order required verbal and written notices and posted
                                                                signs warning all who entered that sexual activity was
Opinion by Justice Dorsey                                       strictly forbidden within. The trial court ordered that any
                                                                person desiring entry into a booth or the theater must
This action was initiated by the Nueces County Attorney         sign an individualized written warning which must
at the behest of the Nueces County Public Health                include their printed name, phone number, address,
Department against Adust Video, appellant, for                  and driver's license number. Adust is required to
violations of the Texas Health and Safety Code. 1               maintain the original of these receipts for random,
Following the issuance of a temporary restraining order         warrantless inspection by the County. The management
and an agreed temporary injunction, the County sought           must refuse entry to the booths or theater to any person
and received a permanent injunction. The trial court            refusing to sign and, if they enter anyway, must call the
found a public health nuisance existed and issued an            police to report the trespass. "Sexual activity," when
injunction which, among other things, prohibits "sexual         discovered, must be halted and reported to the police.
activity" on the Adust Video premises. Adust appeals by         Adust was also required to modify the building so that
three points of error, challenging the lack of specificity of   the staff would "have a clear view at all times of all
the findings of fact, the injunction's failure to afford        events occurring within the premises." If the court's
notice of what specific acts it prohibits, and violation of     intentions were [**4] in any way unclear, the order went
appellant's First Amendment right to free speech.               on to permanently enjoin Adust from permitting sexual
                                                                activity within its premises by any person; from
[**2] As there is no statement of facts, we rely on the         maintaining an unsanitary condition; from tolerating a
parties' briefs for the applicable facts. Adust Video owns      nuisance; from refusing to comply with the injunction; or
and operates an adult book and video store in Nueces            from refusing to consent to random warrantless
County. In addition to displays of adult literature and         inspections by the State.
video tapes for sale and rent, the store also offered its
patrons eight private, coin-operated viewing booths and         Our review of appellant's arguments is seriously limited
a sixteen-seat theater for on-site screening of adult           because there is no statement of facts. See Brockette v.
movies. During December 1994, Nina Sisley, an                   Sosa, 675 S.W.2d 807, 809 (Tex. App.--Corpus Christi
inspector for the county heath agency, twice inspected          1984, no writ). HN1 The party who seeks appellate
appellant's business premises and, on both occasions,           review of a particular point is responsible for presenting
discovered conditions she described as "unsanitary."            a complete record on that point because it has the
Specifically, Sisley found urine and seminal fluid on the       burden of proving error. Simon v. York Crane & Rigging
seats, floor, and walls of the restroom, booths, and            Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Brockette,
theater. The County asserts these conditions create a           675 S.W.2d at 809. HN2 We presume the evidence
high risk for the transmission of diseases, including           supports injunctive relief.
sexually transmitted diseases such as syphilis,
gonorrhea, and AIDS.                                            I. THE RULES GOVERNING INJUNCTIONS

The health department notified Adust of its findings and        In its first point of error, Adust contends the trial court's
afforded Adust an opportunity to clean up the premises.         order violates the rules of civil procedure because it
The County concluded Adust made no effort to correct            does not define what unsanitary conditions exist on
these conditions so, pursuant to health and safety code         appellant's premises.
sections 341.012 and 343.013, sought and obtained a
temporary restraining order, followed by [**3] a                HN3 Rule of civil procedure 683 provides:
temporary [*249] injunction, and finally, after a trial
before the court, a permanent injunction.                       Every order granting an injunction and every restraining
                                                                order shall set forth the reasons [**5] for its issuance;
The trial court's order, in the name of abating a public        shall be specific in terms; shall describe in reasonable
health nuisance, enjoined "sexual activity" on Adust's          detail and not by reference to the complaint or other

1
    TEX. HEALTH & SAFETY CODE ANN. §§ 341, 343 (Vernon 1992 & Supp. 1999).
                                                                                                               Page 4 of 10
                                 996 S.W.2d 245, *249; 1999 Tex. App. LEXIS 3790, **5



document, the act or acts sought to be restrained . . . .         health nuisance. Specifically, the trial court found that
                                                                  Adust permitted its patrons to engage in sexual activity
TEX. R. CIV. P. 683.                                              which resulted in an unsanitary condition constituting a
                                                                  public health nuisance. We hold the order satisfactorily
Though the rule on its face applies to every order                states the reasons for its issuance. Appellant's first
granting an injunction, HN4 the provision compelling a            point of error is overruled.
detailed explanation of the reason for the injunction's
issuance has been held only to apply to temporary                 Adust also attacks the trial court's order by way of rule
injunctions or suits requesting ancillary injunctive relief.      683 in its second point of error, claiming the order does
City of Houston v. Morgan Guar. Intern. Bank, 666                 not sufficiently specify what appellant is restrained from
S.W.2d 524, 536 (Tex. App.--Houston [1st Dist.] 1983,             doing. Specifically, Adust challenges the order's
writ ref'd n.r.e.); Gasperson v. Madill Nat'l Bank, 455           language that it is prohibited from "maintaining an
S.W.2d 381, 398 (Tex. Civ. App.--Fort Worth 1970, writ
                                                                  unsanitary condition," and from "tolerating a nuisance
ref'd n.r.e.); Texas Liquor Control Bd. v. Bacon, 443
                                                                  to occur within its premises."
S.W.2d 312, 317 (Tex. Civ. App.--Austin 1969), rev'd on
other grounds, 456 S.W.2d 891 (Tex. 1970); Alexander              Rule 683's requirement that orders be specific in terms
Schroeder Lumber Co. v. Corona, 288 S.W.2d 829, 835               and describe in reasonable detail the acts to be
(Tex. Civ. App.--Galveston 1956, writ ref'd n.r.e.). We           restrained applies to permanent injunctions. HN5 A
are persuaded that rule 683's requirement for detailed            permanent injunction should not be more
explanations of reasons for the issuance of the injunction
                                                                  comprehensive or restrictive than justified by the
does not apply to a permanent injunction that is the sole
                                                                  pleadings, evidence, and usages of equity. Thompson
relief sought by the action. The [**6] rule does apply to
                                                                  v. Thompson [**8] Air Conditioning & Heating, Inc., 884
injunctive relief that is ancillary to other relief sought in
                                                                  S.W.2d 555, 559 (Tex. App.--Texarkana 1994, no writ).
the action. In Schroeder, the Galveston court expressly
                                                                  The Texas Supreme Court held:
held: "We reach the conclusion that [rule 683] applies
only to ancillary injunctive relief and not to final              HN6 An injunction decree must be as definite, clear and
judgments in suits, the sole object of which is to obtain         precise as possible and when practicable it should
a perpetual injunction." Schroeder, 288 S.W.2d at 835.            inform the defendant of the acts he is restrained from
                                                                  doing, without calling on him for inferences or
 [*250] The Schroeder rule was applied in Gasperson:
                                                                  conclusions about which persons might well differ and
"such rule [683] only applies to ancillary injunctive relief
                                                                  without leaving anything for further hearing. (Citation
and not to final judgments." Gasperson, 455 S.W.2d at
                                                                  omitted). But obviously the injunction must be in broad
398. The rule was also applied, although modified, in
                                                                  enough terms to prevent repetition of the evil sought to
Bacon (in affirming the issuance of a permanent
                                                                  be stopped, whether the repetition be in form identical
injunction) where the court said, "It has been held that
                                                                  to that employed prior to the injunction or (what is far
Rule 683 . . . does not apply to permanent injunctions
                                                                  more likely) in somewhat different form calculated to
insofar as it provides that the order shall state reasons
                                                                  circumvent the injunction as written.
for its issuance." Bacon, 443 S.W.2d at 317. We likewise
hold that where the injunction is not ancillary to other
                                                                  San Antonio Bar Ass'n v. Guardian Abstract & Title Co.,
relief sought, rule 683's provision requiring the injunction
                                                                  156 Tex. 7, 15, 291 S.W.2d 697, 702 (1956).
to state the reasons for its issuance in specific terms
does not apply. 2                                                 The order before us contains nine specific instructions
                                                                  to appellant regarding lighting, signage, and its duties
[**7] However, even should that provision of rule 683             regarding patrons wishing to use the theater and booths.
apply, we hold that the order sufficiently apprized Adust         Following these nine detailed instructions are five
of the reason for its issuance. The order prohibits               general instructions that are apparently intended to
appellant from permitting itself to operate as a public           anticipate repetition of the behavior lending itself to [**9]

2
   State v. Cook United, Inc., 464 S.W.2d 105, 107 (Tex. 1971), held that it was not necessary to state in a temporary injunction
why the applicant would be endangered by probable injury, holding that the statute itself declares the injury, by making sales
on Saturday and Sunday a public nuisance. Chief Justice Calvert concurred, but stated the requirement of Rule 683 was
mandatory. He was recognizing an exception in cases involving injunctive orders restraining statutorily declared public
nuisances.
                                                                                                                   Page 5 of 10
                                 996 S.W.2d 245, *250; 1999 Tex. App. LEXIS 3790, **9



creation of a public health nuisance in, as the supreme           In its third point of error, Adust challenges the injunction
court observed, "somewhat different form calculated to            as a violation of its right to free speech under the First
circumvent the injunction." Id.                                   Amendment to the U.S. Constitution. 3 It argues that the
                                                                  constraints imposed by the injunction have a "chilling
Adust's complaint focuses on two of these general                 effect" both on its ability to convey its constitutionally
instructions. Specifically, it cites orders number two and        protected message and the right of its customers to
three which prohibit Adust "from maintaining an                   receive it. By so doing, Adust is asserting the First
unsanitary condition within its premises at its [*251]            Amendment rights of its customers to view adult films.
place of business" and from permitting "a nuisance to
                                                                   [**11] The general rule is that HN9 a party may only
occur on its premises."
                                                                  assert a violation of its own rights. "However, HN10 in
                                                                  the First Amendment context, 'litigants . . . are permitted
The health and safety code defines HN7 "sanitary" as a
                                                                  to challenge a statute not because their own rights of
condition of good order and cleanliness that precludes
                                                                  free expression are violated, but because of a judicial
the probability of disease transmission." See TEX.
                                                                  prediction or assumption that the statute's very
HEALTH & SAFETY CODE ANN. § 341.001(7) (Vernon
                                                                  existence may cause others not before the court to
1992). Similarly, section 341.011 itemizes twelve
                                                                  refrain from constitutionally protected speech or
conditions that constitute public health nuisances,
                                                                  expression.'" Virginia v. American Booksellers Ass'n,
including: (5) sewage, human excreta, . . . or other              484 U.S. 383, 394, 98 L. Ed. 2d 782, 108 S. Ct. 636
organic wastes deposited . . . or exposed in such a way           (1988) (quoting Secretary of State of Md. v. J.H. Munson
as to be a potential instrument or medium in disease              Co., 467 U.S. 947, 956-57, 81 L. Ed. 2d 786, 104 S. Ct.
transmission to a person or between persons; . . . and            2839 (1984)).
(12) an object, place or condition that is possible and           We review an injunction on First Amendment grounds
probable medium of disease transmission to or between             under the same rule as a statute. Adust may assert the
humans." TEX. HEALTH & SAFETY CODE ANN. §                         constitutionally protected rights of its patrons. 4
341.011 (Vernon 1992).
                                                                   [**12] The State concedes, and we so presume for the
HN8 When the purpose of an injunction is to protect the           purposes of this opinion, that the materials appellant
public, [**10] the test of required specificity is                seeks to exhibit are presumptively protected by the First
reasonableness, and in framing the decree, doubt                  Amendment to the United States Constitution. [*252]
should be resolved against the violator. Lloyd A. Fry             Appellant argues that the conditions imposed by the
Roofing Co. v. State, 541 S.W.2d 639, 646 (Tex. Civ.              trial court infringe upon its free speech rights and those
App.--Dallas 1976, writ ref'd n.r.e.); Davies v.                  of its customers.
Unauthorized Practice Comm. of State Bar of Tex., 431
S.W.2d 590, 595 (Tex. Civ. App.--Tyler 1968, writ ref'd           HN11 Restrictions merely on the time, place, or manner
n.r.e.). Given the definitions supplied by statute of             of exercise of free speech rights violate no constitutional
"nuisance" and "sanitary conditions," we hold the                 protections if sufficiently justified and narrowly enough
injunction is reasonably specific.                                drawn. The Supreme Court in Ward v. Rock Against
                                                                  Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct.
We overrule appellant's second point of error.                    2746 (1989), set out the appropriate standard for
                                                                  reviewing restrictions on the time, place or manner of
II. CONSTITUTIONAL ATTACKS                                        speech:

3
    Adust's brief refers to Article I, section 8 of the Texas Constitution, but its argument focuses solely on the First Amendment
of the United States Constitution. Consequently, we do not consider the extent to which Article I, section 8 provides an
independent basis for the protection of Adust's rights. See Tilton v. Moye, 869 S.W.2d 955, 958 n.2 (Tex. 1994). Points of error
not briefed are waived. Paramount Nat'l. Life Ins. Co. v. Williams, 772 S.W.2d 255, 263 (Tex. App.--Houston [14th Dist.] 1989,
writ denied); Parker v. TXO Prod. Corp., 716 S.W.2d 644, 648 (Tex. App.--Corpus Christi 1986, no writ).
4
    The right to speak freely is meaningless without the corresponding right of a listener to hear what is spoken. The listener's
right to receive information is also protected by the First Amendment. See Kleindienst v. Mandel, 408 U.S. 753, 762, 33 L. Ed.
2d 683, 92 S. Ct. 2576 (1972); Red Lion Broad. v. F.C.C., 395 U.S. 367, 390, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969); Thomas
v. Collins, 323 U.S. 516, 534, 89 L. Ed. 430, 65 S. Ct. 315 (1945).
                                                                                                                    Page 6 of 10
                              996 S.W.2d 245, *252; 1999 Tex. App. LEXIS 3790, **12



HN12 The government may impose reasonable                     L.P., 960 S.W.2d 301, 308 (Tex. App.--Corpus Christi
restrictions of the time, place, or manner of protected       1997, no writ).
speech, provided restrictions "are [1] justified without
reference to the content of the regulated speech, that        III. PARTICULAR PROVISIONS
they are [2] narrowly tailored to serve a significant
governmental interest, and that they [3] leave open           A. Visibility and lighting
ample alternative channels for communication of the
                                                              Adust complains about particular requirements of the
information."
                                                              injunction that apply to visibility of activities on the
                                                              premises and the adequacy of lighting to assure visibility.
Id. at 791 (quoting Clark v. Community for Creative
                                                              Those provisions are the following:
Non-Violence, 468 U.S. 288, 293, [**13] 82 L. Ed. 2d
221, 104 S. Ct. 3065 (1984)). Because the injunction          1. Any employee or agent of the Defendant operating or
places restrictions on appellant's ability to display         managing [**15] the business shall have a clear view at
presumptively protected materials to its customers, we        all times of all events occurring within the premises.
review the provisions of the injunction under that
analysis.                                                     2. The theater shall have adequate lighting at all times
                                                              that said business is open to the public.
HN13 Where the acts of the parties are divisible
regarding lawful and unlawful conduct, an injunction          3. The business shall have adequate running lights on
may not be framed so broadly so as to prohibit the            the floor of the theater common to commercial theaters.
enjoyment of lawful rights. Kulkana v. Braeburn Valley
W. Civic Ass'n, 880 S.W.2d 277, 278 (Tex.                     [*253] 4. The business shall have a lighting system of
App.--Houston [14th Dist.] 1994, no writ). Since              appropriate degree to allow a sufficient measure of
appellant presumably has the guaranteed constitutional        visibility so that, if sexual activity occurs or is about to
right to exhibit these materials to adult patrons, the        occur within the premises, whether such activity is by a
injunction should not prohibit or unduly restrict             person alone or with another, such conduct would be
appellant's free enjoyment of that right.                     obvious and visible to any person managing the
                                                              business.
In addition to the government's interest in sanitation, the
government has a significant interest in preventing the       The purpose of the injunction is to prevent the unsanitary
spread of sexually-transmitted diseases. HN14 A city          conditions that have been repeatedly found on the
has a substantial interest in regulating sexually-oriented    premises. Those conditions are the result of sexual
businesses. City of Renton v. Playtime Theatres, Inc.,        activities throughout the business. By preventing sexual
475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). The      contacts from occurring, it is hoped the areas will be
State has a significant interest in preventing the spread     kept sanitary. This paragraph, requiring all areas to be
of sexually transmitted disease through sexual activity       visible to management, is to prevent sexual activity
on appellant's [**14] premises. See John Doe v. City of       from occurring. Adust argues that sexual activity taking
Minneapolis, 898 F.2d 612, 617 (8th Cir. 1990) (holding       place behind the closed doors of a room, however
that the ordinance at issue in that case advanced the         small, is not illegal. Although that may be correct, such
significant governmental interest in combating the            is not speech protected [**16] by the First Amendment.
spread of the AIDS virus).                                    Adust has a right to exhibit films and sexually oriented
                                                              material under the Constitution, but such right is
HN15 The standard of review when a trial court grants         unrelated to another person's right, if any, to engage in
or denies a permanent injunction is limited to whether        sexual conduct.
the trial court clearly abused its discretion. Morris v.
Collins, 881 S.W.2d 138, 139-40 (Tex. App.--Houston           HN16 Sexual activity in public places is prohibited by
[1st Dist.] 1994, writ denied). We consider whether the       the Texas Penal Code. See TEX. PENAL CODE ANN.
trial court could reasonably have reached only one            §§ 21.07, 21.08 (Vernon 1994). Peep show booths
decision, and whether its decision was so arbitrary and       have been held to be public places. Liebman v. State,
unreasonable as to amount to a clear and prejudicial          652 S.W.2d 942, 944-45 (Tex. Crim. App. 1983).
error of law. See Walker v. Packer, 827 S.W.2d 833, 840       Theaters and retail shops open to the public are public
(Tex. 1992); AIG Risk Mgmt., Inc. v. Motel 6 Operating        places.
                                                                                                        Page 7 of 10
                              996 S.W.2d 245, *253; 1999 Tex. App. LEXIS 3790, **16



The United States Supreme Court has concluded HN17            Adust argues that such warnings are bound to have a
patrons of adult video theaters have no right to              chilling effect on the [*254] store's patrons, particularly
anonymity in viewing films. Paris Adult Theatre v. Slaton,    the unsophisticated, and that the warnings do not
413 U.S. 49, 65, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973).     promote sanitary conditions. The purpose of the
In cases dealing with substantially similar issues, similar   injunction is to prohibit the unsanitary conditions that
provisions have withstood challenge. See Bamon v.             resulted from sexual conduct on the Adust premises.
City of Dayton, 923 F.2d 470, 473 (6th Cir. 1991);            With a view towards eliminating the occasions for sexual
FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.       conduct, the warning advises the public that such
1978). This requirement does not affect Adust's ability       activities are prohibited. These notices do not affect
to sell or lease its films nor its patrons' right to view     either the ability of Adust to sell or rent its materials or its
them. There is nothing improper in those portions of the      patrons to purchase them. We find the paragraphs are
injunction.                                                   reasonably designed to further the government's
                                                              legitimate health interests.
B. Mandatory Warnings
                                                              C. THE IDENTIFICATION ORDER
The next three paragraphs [**17] deal with mandatory
warnings to Adust's patrons:                                  The next paragraph provides:

5. The management, including any operators and                7. The management, including the operators and all
employees of the Defendant, shall be under a continuing       employees of the Defendant, shall give to each person
obligation and duty to give verbal notice to any person       wanting to enter the theater or any peep show booth a
who enters the premises that any sexual activity,             written notice that no sexual activity by any person,
whether by that person alone or with another, is              whether alone or with another, is permitted, allowed or
absolutely prohibited.                                        tolerated.
6. The management, including any operators and
                                                              ...
employees of the Defendant, shall post and permanently
maintain notice in the following locations: on the exterior
                                                              ENTRY RECEIPT
of the entrance door, at the place where payment is
made, at the entrance area to the theater, at the entrance     [**19]I have received written notice of the above
to the peep show booth, on the interior wall of each          Warning. I understand the warning.
peep show booth, on each interior wall of the theater, on
each interior wall of the business, on the entrance door      The entry receipt requires the potential patron to sign
to each restroom premises [sic], and on each interior         the notice, print his name, and divulge his address,
wall of each restroom; which shall state that no sexual       phone and driver's license number. Adust is to maintain
activity by any person, whether alone or with another, is     the originals on file for no-notice inspection by
permitted, allowed or tolerated. The notice shall be          "appropriate law enforcement authorities." No person is
sufficient if it substantially states the following:          to be allowed into the theater or peep show booth who
                                                              refuses to sign the entry receipt, and all who enter
"WARNING!                                                     without signing are to be advised they are committing a
No Sexual Activity By Any Person,                             trespass. Adust's management is ordered to
                                                              immediately call law enforcement authorities to enforce
Whether Alone Or With Any Other Person,                       the warning and receipt requirements.

Is Permitted, Allowed, or Tolerated In or About the           While this order does not directly prohibit the exercise of
Premises.                                                     Adust's or its patrons' freedom of speech, HN18 the
                                                              First Amendment also protects against government
[**18] Violators Will Be Removed From the Premises,
                                                              inhibition as well as prohibition. Lamont v. Postmaster
Will Be Denied Future Entry Onto the Premises And             Gen., 381 U.S. 301, 309, 14 L. Ed. 2d 398, 85 S. Ct.
                                                              1493 (1965) (Brennan, J., concurring). HN19 An
Will Be Referred To The Police For Criminal                   identification requirement exerts an inhibitory effect,
Prosecution."                                                 Talley v. California, 362 U.S. 60, 64-65, 4 L. Ed. 2d 559,
                                                                                                            Page 8 of 10
                             996 S.W.2d 245, *254; 1999 Tex. App. LEXIS 3790, **19



80 S. Ct. 536 (1960), and therefore raises First             activity, and shall immediately call law enforcement
Amendment issues comparable to those raised by direct        authorities to report the commission of such activity.
government imposed [**20] prohibitions. Fabulous
Assocs. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d          Adust complains this language requires it to report
780, 785 (3d Cir. 1990).                                     suspected sexual activity. We agree the paragraph as
                                                             written is confusing and, to the extent that it imposes a
The State cites Pollard v. Cockrell, 578 F.2d 1002,
                                                             requirement to report suspicions, overly broad. We find
1015-16 (5th Cir. 1978), for authority that obtaining and
                                                             the [**22] requirement to report violations of the
keeping such permits is rationally related to protecting
                                                             injunction's prohibitions appropriate, however, and
public health, in that, if contaminants are found, it may
be necessary to locate and notify patrons of possible        cannot conclude this paragraph is not reasonably
exposure to disease. But Pollard involved a massage          designed to further the County's interests.
parlor and the requirement that a detailed "appointment
book" be maintained. The aims of such a list is to keep      Appellant's point is sustained. The first portion of the
minors from using such establishments and in                 paragraph is changed to read, "The management,
preventing patrons from soliciting proscribed sexual         including any operators and employees of the
contacts. Id. at 1016.                                       Defendant, upon detecting any sexual activity within the
                                                             premises by any person, . . . ."
The main purpose of such a requirement for Adust is to
inhibit potential customers from viewing the                 E. Random Inspections
sexually-oriented films by their loss of anonymity. The
requirement is not a reasonable restriction on Adust's       The order requires Adust to "consent to random
business and it has no rational relationship to the          inspection by the appropriate law enforcement
prevention of disease, sexually transmitted or otherwise.    authorities of the State." Adust challenges this provision
The County has not borne its heavy burden of                 under the First and Fourth Amendments, to the extent
demonstrating that the compelling state interest could       that it authorizes warrantless searches.
not be served by restrictions that are less intrusive on
protected forms of expression. See Sable                     HN20 A warrant is generally required for authorities to
Communications [**21] v. F.C.C., 492 U.S. 115, 126,          search portions of a commercial enterprise that are not
106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989).                    open to the public. See v. City of Seattle, 387 U.S. 541,
                                                             543, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967). HN21 A
Adust's point is sustained and we strike the requirement     warrantless search of commercial premises may be
that patrons complete an entry receipt, giving their         reasonable when the business is "closely regulated." In
names, addresses, and other personal information, as
                                                             such a case the privacy interests of the owner are
a condition of entry to the theater and peep show
                                                             weakened and the government interest in regulating
booths.
                                                             are higher. New York v. Burger, 482 U.S. 691, 700, 96 L.
[*255] Because we have stricken the requirement that         Ed. 2d 601, [**23] 107 S. Ct. 2636 (1987). HN22 The
Adust collect patrons' identification information, we need   expectation of privacy that the owner of commercial
not consider Adust's complaint that the provision for        property enjoys may, in certain circumstances, be
warrantless inspection of these receipts is improper.        adequately protected by regulatory schemes authorizing
                                                             warrantless inspections. United States v. Biswell, 406
D. Reporting Requirement                                     U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972).

Adust next complains of the injunction's requirement         The Supreme Court has recognized this exception in
that:                                                        four industries. See Burger, 482 U.S. at 703-04
                                                             (automobile junkyards); Donovan v. Dewey, 452 U.S.
9. The management, including any operators and               594, 598-99, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981)
employees of the Defendant, upon suspecting or seeing        (coal mining); Biswell, 406 U.S. at 316 (firearm and
any sexual activity within the premises by any person,       ammunition sales); Colonnade Catering Corp. v. United
whether alone or with another, shall immediately cause       States, 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774
the person or persons to stop, cease and desist such         (1970) (liquor industry). Lower federal courts and some
                                                                                                         Page 9 of 10
                                996 S.W.2d 245, *255; 1999 Tex. App. LEXIS 3790, **23



state courts have extended the exception to other                 Burger, 482 U.S. at 703.
industries. 5
                                                                  This provision of the injunction requires appellant to
[**24] [*256] In Marshall v. Barlow's, Inc., 436 U.S. 307,        "consent" to random inspections. The vagueness of the
98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), the Court struck         order raises certain problems. The order does not limit
down the administrative search provision of section               the "consent" to inspections to be conducted at any
8(a) of the Occupational Safety and Health Act of 1970            time, the scope of the inspection, the area to be
because it failed to tailor the scope and frequency of the        inspected, whether the inspection is limited to the
inspections to the particular health and safety concerns          business premises of appellant or could extend to other
posed. Id. at 323. Also the Act did not provide any               places, or whether appellant's business records are to
standards to guide inspectors in the exercise of their
                                                                  be included. The absence of conditions on the
authority to search. Id. "HN23 Where Congress has
                                                                  inspections violates the constitutional requirements for
authorized inspection but made no rules governing the
                                                                  such administrative searches. The injunction must have
procedures that inspectors must follow, the Fourth
                                                                  "a properly defined scope, and it must limit the discretion
Amendment and its various restrictive rules apply."
                                                                  of the inspecting officers." Id. We conclude the provision
Colonnade, 397 U.S. at 77. In such cases, a warrant
                                                                  requiring appellant to consent to inspections by law
may be necessary to protect the owner from the
                                                                  enforcement officers violates its Fourth Amendment
"unbridled discretion [of] executive and administrative
                                                                  rights. That provision is stricken from the injunction.
officers," Barlow's, 436 U.S. at 323, by assuring him
                                                                  Adust's point of error is sustained.
that reasonable legislative or administrative standards
for conducting an inspection are satisfied with respect           We sustain Adust's third point of error, MODIFY the
to a particular establishment. Camara v. Municipal Ct.            injunction and, as modified, AFFIRM.
of San Francisco, 387 U.S. 523, 538, 18 L. Ed. 2d 930,
87 S. Ct. 1727 (1967).                                            J. BONNER DORSEY,

"HN24 The regulatory statute must perform the two                 Justice
basic functions of a warrant: it must advise the owner of
the commercial [**25] premises that the search is being           Opinion [**26] delivered and filed this 20th day of May,
made pursuant to law and has a properly defined scope,            1999.
and it must limit the discretion of the inspecting officers."




5
   Warrantless administrative searches have been upheld in the following contexts: commercial fishing, United States v. Raub,
637 F.2d 1205 (9th Cir. 1980); State v. Mach, 23 Wash. App. 113, 594 P.2d 1361 (1979); shipping, United States v.
Espinosa-Cerpa, 630 F.2d 328, 333-34 (5th Cir. 1980); pleasure boating, United States v. Whitmire, 595 F.2d 1303, 1312-13 &
n.22 (5th Cir. 1979), cert. denied, 448 U.S. 906, 65 L. Ed. 2d 1136, 100 S. Ct. 3048 (1980); but cf. United States v. Piner, 608
F.2d 358 (9th Cir. 1979) (Coast Guard's warrantless safety inspections of small pleasure vessels must be limited to daylight
hours unless there is articulable cause for nighttime boarding); water pollution-related activities, In re State Dep't of Envirl.
Protec., 177 N.J. Super. 304, 426 A.2d 534 (N.J. Super., App. Div. 1981); food and drug dealers, United States v. Schiffman,
572 F.2d 1137 (5th Cir. 1978); mining and mineral extraction, Marshall v. Texoline Co., 612 F.2d 935 (5th Cir. 1980); licensed
automobile dismantlers, used parts dealers, and second-hand goods dealers, People v. Woolsey, 90 Cal. App. 3d 994, 153 Cal.
Rptr. 746, 749-51 (4th Dist. 1979); State v. Barnett, 389 So. 2d 352 (La. 1980); People v. Tinneny, 99 Misc. 2d 962, 417 N.Y.S.2d
840, 845-46 (1979); taverns, State v. Williams, 84 N.J. 217, 417 A.2d 1046, 1048-50 (1980) (dictum); and massage parlors,
Pollard v. Cockrell, 578 F.2d 1002, 1014 (5th Cir. 1978).
Courts have struck down warrantless administrative inspections in the following contexts: trucking, United States v. Shaefer,
637 F.2d 200 (3d Cir. 1980); residential real estate, Hometown Co-Op. Apts. v. City of Hometown, 495 F. Supp. 55 (N.D. Ill.
1980) (point-of-sale inspection); adult book stores, State v. Huddleston, 412 A.2d 1148, 1156-57 (Del. Super. Ct. 1980); and
physicians' offices or clinics, Margaret S. v. Edwards, 488 F. Supp. 181, 214-17 (E.D. La. 1980); Hawaii Psychiatric Soc'y v.
Ariyoshi, 481 F. Supp. 1028, 1045-50 (D. Hawaii 1979).
                                                                                                                 Page 10 of 10
                                                                                                                    Page 1




Caution
As of: Mar 30, 2015

                                Everett Cockrell, Appellant v. Jose Estevez, Appellee

                                                  No. 04-87-00206-CV

                         COURT OF APPEALS OF TEXAS, Fourth District, San Antonio

                                     737 S.W.2d 138; 1987 Tex. App. LEXIS 8440


                                              September 16, 1987, Decided
                                               September 16, 1987, Filed

PRIOR HISTORY:             [**1]     Appeal from the          the petition attached. The defendant failed to answer or
131st District Court of Bexar County, Trial Court No.         appear, and the default judgment was entered.
86-CI-18182, Honorable Raul Rivera, Judge Presiding.
                                                                   The judgment referred to the Earnest Money Con-
                                                              tract between the [**2] parties as "dated September 18,
                                                              1986," when, in fact, the escrow agent dated the instru-
COUNSEL: Lance E. Houghtling, Attorney for Appel-
                                                              ment on September 16, 1986, and the contract was exe-
lant.
                                                              cuted on October 15, 1986. The pleadings of the plaintiff
                                                              set out the date of execution as October 15, 1985. The
Steven M. Gross, Attorney for Appellee.
                                                              default judgment also referred to and incorporated by
                                                              reference the original Earnest Money Contract which has
JUDGES: Rudy Esquivel, Associate Justice, Alfonso
                                                              the agent's date as well as the correct date of execution.
Chapa, Associate Justice, Shirley W. Butts, Associate
Justice.                                                           Almost four months after the judgment was origi-
                                                              nally signed, an order nunc pro tunc was granted on
OPINION BY: BUTTS                                             plaintiff's motion to correct the spelling of the defend-
                                                              ant's name.
OPINION
                                                                   Plaintiff argues in his first point of error that the de-
      [*139] This is an appeal by writ of error from a        fault judgment is invalid because the petition, citation
default judgment in favor of plaintiff, Juan Estevez. The     and judgment misspelled defendant's name "Everett
judgment granted specific performance on a contract to        Cockrall," when the correct spelling is "Everett
purchase real estate and awarded attorney's fees. In two      Cockrell." The second point is that error resulted because
points of error plaintiff challenges service of process and   of non-conformity between the pleadings and the judg-
failure of the default judgment to conform to the plead-      ment and that the pleadings describe an earnest money
ings.                                                         contract dated October 15, 1985, while the judgment
                                                              describes an earnest money contract dated September 18,
     Plaintiff's petition misstated the name "Cockrell" as
                                                              1986.
"Cockrall." The name "Cockrell" was properly spelled in
the Earnest Money Contract being sued upon which was               A petition should serve its designed purpose "to de-
attached to the petition and incorporated in it by refer-     fine the issues at trial." Murray v. O & A Express, Inc.
ence. The citation contains the same misspelling of de-       [**3] , 630 S.W.2d 633, 636 (Tex. 1982). In this case
fendant's name but was personally served on him with          the earnest money contract is incorporated and attached
                                                                                                                  Page 2
                                   737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, **


to the petition; it therefore accurately identifies the par-   citation named the son but the father was served. Zim-
ties and provides the defendant "information sufficient to     merman v. First National Bank of Bowie, 235 S.W.2d
enable him to prepare a defense." Roark v. Allen, 633          720 (Tex. Civ. App. Fort Worth 1950, writ ref'd n.r.e.)
S.W.2d 804, 810 (Tex. 1982). In addition, we will apply        concerned a writ of garnishment issued under a different
the rule of idem sonans 1 because the two spellings            name from the judgment upon which it was based.
[*140] of the name "Cockrell" appear to be nearly in-          Again, substantially different situations from that of the
distinguishable by their sounds when pronounced.               present case.
                                                                    The purpose of citation is to give the court proper
       1 The rule of idem sonans is that absolute ac-
                                                               jurisdiction of the parties and to provide notice to the
       curacy in spelling a name is not required in a le-
                                                               defendant that he has been sued and by whom and for
       gal document or proceedings, either civil or
                                                               what so that due process will be served and he will have
       criminal; that if a name, as spelled in the docu-
                                                               an opportunity to appear and defend the action.
       ment, though different from the correct spelling
                                                               Sgitcovich v. Sgitcovich [**6] , 150 Tex. 398, 241
       thereof, conveys to the ear, when pronounced
                                                               S.W.2d 142, 146 (1951), cert. denied, 342 U.S. 903, 72 S.
       according to the commonly accepted method, a
                                                               Ct. 291, 96 L. Ed. 676 (1952), Stephenson v. Corporate
       sound practically identical to the correct name as
                                                               Services, Inc., 650 S.W.2d 181, 184 (Tex. App. -- Tyler
       commonly pronounced the name thus given is a
                                                               1983, writ ref'd n.r.e.), Bozeman v. Arlington Heights
       sufficient identification of the individual referred
                                                               Sanitarium, 134 S.W.2d 350, 351-52 (Tex. Civ. App. --
       to, and no advantage can be taken of the clerical
                                                               Dallas 1939, writ ref'd). We hold that the misspelling of
       error. Dingler v. State, 705 S.W.2d 144, 145
                                                               the defendant's name in the citation does not invalidate
       (Tex. Crim. App. 1984).
                                                               service of process. If defendant's misspelled name in the
      [**4] The Texas Supreme Court has approved in            citation or return does not invalidate service of process,
practice, the application of the rule of idem sonans in        neither does such error require reversal of a default
civil cases. Adams v. Grogan-Cochran Lumber Co.,               judgment. Salazar v. Tower, 683 S.W.2d 797, 799 (Tex.
181 S.W.2d 582, 588-89 (Tex. Civ. App. -- Amarillo             App. -- Corpus Christi 1984, no writ); Popkowsi v.
1944), aff'd, 186 S.W.2d 677, 143 Tex. 490 (1945). When        Gramza, 671 S.W.2d 915, 917-18 (Tex. App. -- Houston
an intended defendant is sued under an incorrect name,         [1st Dist.] 1984, no writ).
jurisdiction is proper after service on the defendant under
                                                                    As discussed above, there is no issue raised of lack
the misnomer, but it must be clear that no one was mis-
                                                               of service of citation on the intended defendant "Everett
led. Orange Grove Independent School District v. Rive-
                                                               Cockrell," nor does defendant claim he was misled by
ra, 679 S.W.2d 482, 483 (Tex. 1984), Adams v. Consoli-
                                                               the misspelling of his name in this case. Since defendant
dated Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841
                                                               was the proper one to be served with citation and was not
(1939).
                                                               misled by the error in the spelling of his name, the record
    A misnomer of a defendant does not render a judg-          does not reflect invalid service of process. Consolidated
ment based on personal service, even one by default,           Underwriters, [**7] supra, 124 S.W.2d at 841. Appel-
void, provided the intention to sue the defendant actually     lant's first point of error is overruled.
served with citation is so evident from the pleadings and
                                                                    We find that the judgment in this case properly con-
process that the defendant could not have been misled. R.
                                                               forms to the pleadings, from which the court can deter-
McDONALD, TEX. CIV. PRACTICE § 6.04.1 (1982).
                                                               mine the elements of plaintiff's cause of action and iden-
     It is significant that the defendant does not raise an    tify the relief sought. Mere formalities, minor defects, or
issue of mistake in identity or lack of service or of im-      technical insufficiencies will not invalidate a default
proper service under the rules but raises only the claim       judgment [*141] where the petition states a cause of
that the improper spelling of his name voids the citation.     action and gives "fair notice" to the opposing party of the
The fact that defendant was personally [**5] served            relief sought. Stoner v. Thompson, 578 S.W.2d 679,
with citation distinguishes the case at hand from the cas-     682-83 (Tex. 1979). In a similar case it was held that
es relied upon by him. Two of those cases dealt not with       discrepancies in dates were clerical errors and could not
personal citation but with citation by publication and         have surprised the defendant or prejudiced his rights.
citation by mail. Mega v. Anglo Iron & Metal Co. of            Pace Sports, Inc. v. Davis Brothers Publishing Co., 508
Harlingen, 601 S.W.2d 501 (Tex. Civ. App. -- Corpus            S.W.2d 493, 494 (Tex. Civ. App. -- Waco 1974), aff'd,
Christi 1980, no writ); Fleming v. Hernden, 564 S.W.2d         514 S.W.2d 247 (Tex. 1974).
157 (Tex. Civ. App. -- El Paso 1978, writ ref'd n.r.e.). In
                                                                     The earnest money contract for which specific per-
Nail v. Gene Biddle Feed Co., Inc., 347 S.W.2d 830
                                                               formance was sought in this case was attached to plain-
(Tex. Civ. App. -- Beaumont 1961, no writ), two differ-
                                                               tiff's petition and was incorporated in the petition and
ent individuals were involved, a father and a son, the
                                                                                                                  Page 3
                                   737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, **


also in the judgment by reference. When an inspection of       son, 471 S.W.2d 28 (Tex. 1971), Williams v. Pitts, 251
an exhibit referred to in the pleadings shows facts con-       S.W.2d 148, 151 Tex. 408 (1952). The court did enter an
tradictory to the pleadings, the exhibit, not the allegation   order nunc pro tunc correcting the spelling of the de-
of the pleadings, [**8] must control. Paul v. Houston          fendant's name almost four months after the original
Oil Co. of Texas, 211 S.W.2d 345, 353-54 (Tex. Civ.            judgment. This was within the trial court's authority.
App. -- Waco 1948, writ ref'd n.r.e.). The agent's date on     Since both the petition and the judgment reference the
the earnest money contract, appears to be September 16,        earnest money contract, and since the petition seeks and
1986. It is obviously this date to which the judgment          the judgment orders specific performance on the contract
refers when describing the contract as dated on Septem-        and attorney's fees, there is no variance between the peti-
ber 18, 1986. The same reasoning applies as to the dis-        tion and the judgment. The second point of error is over-
crepancy in the date of execution. Although the trial          ruled.
court did not act on the matter of the dates, the error is
                                                                   The judgment in the trial court is [**9] affirmed.
merely clerical and is subject to correction by the court at
any time. See Universal Underwriters Ins. Co. v. Fergu-
                                                                                                                  Page 1
                                              2001 Tex. App. LEXIS 6913, *




                                                    1 of 1 DOCUMENT




Caution
As of: Mar 30, 2015

                   COLOR SMART, INC. and Rodrigo Garcia, Individually, Appellants v. Larry
                                        LITTLE, Jr., Appellee

                                                   No. 04-00-00294-CV

                    COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                               2001 Tex. App. LEXIS 6913


                                               October 17, 2001, Delivered
                                                October 17, 2001, Filed

NOTICE:     [*1] PURSUANT TO THE TEXAS                         process servers was on file with the clerks of the district
RULES OF APPELLATE PROCEDURE, UN-                              and county courts, the appellate court took judicial notice
PUBLISHED OPINIONS SHALL NOT BE CITED AS                       of it and considered it to be part of the papers on file in
AUTHORITY BY COUNSEL OR BY A COURT.                            the appeal. The returns were properly acknowledged
                                                               before a notary public, thus they were not defective. The
PRIOR HISTORY:           From County Court at Law No.          lessee's name was not actually misspelled, but the last
3, Bexar County, Texas. Trial Court No. 254616. Hon-           letter was cut off. It was inconsequential.
orable Irene Rios, Judge Presiding.
                                                               OUTCOME: The default judgment was affirmed.
DISPOSITION:          Affirmed.
                                                               LexisNexis(R) Headnotes
CASE SUMMARY:


PROCEDURAL POSTURE: Appellants, a lessee and                   Civil Procedure > Pretrial Judgments > Default > De-
his company, filed a restricted appeal from a default          fault Judgments
judgment for $ 58,390 plus $ 4,000 attorney's fees ren-        Civil Procedure > Appeals > Records on Appeal
dered against them, arising out of a suit for breach of a      [HN1] A restricted appeal is a direct attack on a judg-
lease agreement brought by appellee, lessor, in County         ment. A direct attack on a judgment must: (1) be brought
Court at Law No. 3, Bexar County, Texas.                       within six months after the trial court signs the judgment;
                                                               (2) by a party to the suit; (3) who did not participate in
OVERVIEW: The lessee contended the trial court erred           the actual trial; and (4) the error complained of must be
in rendering a default judgment because (1) citation was       apparent from the face of the record. The face of the rec-
not served by a person authorized under Tex. R. Civ. P.        ord consists of all the papers on file in the appeal, in-
103; (2) the return of citation was defective because the      cluding the statement of facts. For a default judgment to
verifications were defective; and (3) the return of citation   withstand a direct attack, strict compliance with the Tex-
was defective because his last name was misspelled on it.      as Rules of Civil Procedure regarding the issuance of
The parties did not dispute lessee's entitlement to bring a    citation, the manner and mode of service, and the return
restricted appeal but disagreed regarding whether he was       of process must be shown on the face of the record. No
properly served. Because the list of authorized private        presumptions in favor of valid issuance, service, and
                                                                                                                      Page 2
                                               2001 Tex. App. LEXIS 6913, *


return are made, and the record must affirmatively show          record. Bautista, 9 S.W.3d at 251. No presumptions in
strict compliance with the rules.                                favor of valid issuance, service, and return are made, and
                                                                 the record must affirmatively show strict compliance
                                                                 with the rules. Id.
Civil Procedure > Pleading & Practice > Service of
                                                                      In three points of error, Garcia contends the trial
Process > General Overview
                                                                 court erred in rendering a default judgment because (1)
[HN2] Tex. R. Civ. P. 107 provides that the return of
                                                                 citation was not served by a person authorized under
citation by an authorized person "shall be verified" but
                                                                 Rule 103 of the Rules of Civil Procedure; (2) the return
does not specify the manner of verification. "Verified"
                                                                 of citation was defective because the verifications were
for purposes of rule 107 is defined as acknowledgment
                                                                 defective; and (3) the return of citation on Rodrigo Gar-
of the instrument before a notary public.
                                                                 cia was defective because it shows citation was served on
                                                                 Rodrigo "Garci." The parties do not dispute Garcia's en-
                                                                 titlement to bring a restricted appeal 1 but disagree re-
Civil Procedure > Pleading & Practice > Service of
                                                                 garding whether he was properly served.
Process > General Overview
[HN3] Strict compliance does not require "obeisance to
                                                                        1 It is evident from the record that Garcia is a
the minutest detail." Spelling errors too minor to raise
                                                                        party to the appeal, did not appear or file any mo-
any doubt that the correct person was served are insuffi-
                                                                        tions, and brought the restricted appeal within six
cient to invalidate service.
                                                                        months after the judgment was signed.
COUNSEL: APPELLANT ATTORNEY: Kelly K.                                  [*3] In point of error one, Garcia contends the
McKinnis, Attorney At Law, McAllen, TX. Ruben                    person who served him was not authorized by law. Ser-
Ramirez, Law Office Of Ruben Ramirez, McAllen, TX.               vice is permitted by any person "authorized by law or by
                                                                 written order of the court who is not less than eighteen
APPELLEE ATTORNEY: J. Philip Collier, Law Offices                years of age." TEX. R. CIV. P. 103(2). He contends there
Of J. Philip Collier, San Antonio, TX.                           is error on the face of the record because the record does
                                                                 not contain a written order authorizing Beatrice Cantu to
JUDGES: Opinion by: Catherine Stone, Justice. Sitting:           serve process. Little refers this court to the approved list
Alma L. Lopez, Justice, Catherine Stone, Justice, Karen          of process servers on file with the Bexar County District
Angelini, Justice.                                               Clerk and Bexar County Clerk; Beatrice Cantu's name
                                                                 appears on this list. Little contends there is no authority
OPINION BY: Catherine Stone                                      requiring that the record in each case must independently
                                                                 establish the authority of the private process server, and
OPINION                                                          that Rule 103 does not require it. We agree, and decline
                                                                 to impose such a condition. Because the list of author-
     This is a restricted appeal from a default judgment
                                                                 ized private process servers is on file with the clerks of
for $ 58,390.61 plus $ 4,000 attorney's fees rendered
                                                                 the district and county courts, we take judicial notice of it
against appellants Color Smart, Inc. and Rodrigo Garcia
                                                                 and consider it to be part of the papers "on file in the
(collectively, Garcia) arising out of a suit for breach of a
                                                                 appeal." See Norman Communications, 955 S.W.2d at
lease agreement brought by appellee Larry Little.
                                                                 270.
     [HN1] A restricted appeal is a direct attack on a
                                                                     We overrule point of error one.
judgment. Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex.
App.--San Antonio 1999, no pet.). A direct attack on a                In point of error two, Garcia challenges the manner
judgment must: (1) be brought within six months after            in which the returns [*4] of citation are verified, argu-
the trial court signs the judgment; (2) by a party to the        ing they are defective because there is no basis to show
suit; (3) who did not participate in the actual trial; and (4)   how the person verifying the return has personal
the error complained of must be apparent from the face           knowledge of its facts, nor is there any mention of the
of the record. Norman Communications v. Texas East-              name of the person who is verifying the return. [HN2]
man Co., 955 S.W.2d 269, 270 (Tex. 1997). [*2] The               Rule 107 provides that the return of citation by an au-
face of the record consists of all the papers on file in the     thorized person "shall be verified" but does not specify
appeal, including the statement of facts. Id. For a default      the manner of verification. See TEX. R. CIV. P. 107.
judgment to withstand a direct attack, strict compliance         "Verified" for purposes of Rule 107 is defined as "ac-
with the Texas Rules of Civil Procedure regarding the            knowledgment of the instrument before a notary public."
issuance of citation, the manner and mode of service, and        See Bautista, 9 S.W.3d at 251. The returns of service
the return of process must be shown on the face of the
                                                                                                                Page 3
                                            2001 Tex. App. LEXIS 6913, *


here are properly acknowledged before a notary public,       the final "a" in Garcia was cut off. Even if the original
thus they are not defective in this regard.                  return actually shows "Garci" we are not persuaded this
                                                             is error. Rodrigo Garcia's name is correctly spelled in the
    We overrule point of error two.
                                                             petition and in the notice of citation; it is only mis-
     In point of error three, Garcia contends that service   spelled, if at all, in the return. [HN3] Strict compliance
was ineffective because one service was directed to "Ro-     does not require "obeisance to the minutest detail." Her-
drigo Garcia" but was served on "Color Smart, Inc. to        bert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866,
registered agent Rodrigo Garcia" and the other was di-       871 (Tex. App.--Houston [1st Dist.] 1995, no writ).
rected to "Rodrigo Garcia" but served on "Rodrigo Gar-       Spelling errors too minor to raise any doubt that the cor-
ci." The authority cited by Garcia is distinguishable be-    rect person was served are insufficient to invalidate ser-
cause, unlike the case before us, the defendants were not    vice. Ortiz v. Avante Villa at Corpus Christi, Inc., 926
personally served with citation. The petition served with    S.W.2d 608, 613 (Tex. App.--Corpus Christi 1996, writ
the citation shows Color Smart, Inc. and [*5] Rodrigo        denied); McDonough v. Williamson, 742 S.W.2d 737,
Garcia as the defendants. We see no error in directing       740 (Tex. App.--Houston [14th Dist.] 1987, no writ).
service to Color Smart's registered agent, Rodrigo Gar-
                                                                 We overrule point of error [*6] three.
cia, as was done here. We also see no error in the return
showing personal service on Rodrigo "Garci." The mar-            We affirm the default judgment.
gins of original papers are frequently cut off when copies
                                                                 Catherine Stone, Justice
are made; that appears to be what happened here--i.e.,
|   | Neutral
As of: April 7, 2015 5:32 PM EDT


                                      Cont'l Cas. Co. v. Guzman
                              Court of Appeals of Texas, Fourth District, San Antonio
                               January 21, 2009, Delivered; January 21, 2009, Filed
                                                No. 04-07-00589-CV

Reporter
2009 Tex. App. LEXIS 338; 2009 WL 136926

CONTINENTAL CASUALTY COMPANY, Appellant v.                   elements that had to be met for a restricted appeal
Rudolph GUZMAN, Appellee                                     under Tex. R. App. P. 30. There was no error on the face
                                                             of the record because service of an amended petition
Subsequent History: Petition for review denied by            was not required since no new causes of action were
Cont'l Cas. Co. v. Guzman, 2009 Tex. LEXIS 606 (Tex.,        pled. The claimant did not have to show the element of
Aug. 21, 2009)                                               due diligence in relation to his bill of review because he
                                                             was contending that substituted service was invalid.
Prior History: [*1] From the 45th Judicial District Court,   There was sufficient proof in the record that the carrier
Bexar County, Texas. Trial Court No. 2006-CI-07475.          was served and that the trial court had jurisdiction. Also,
Honorable John D. Gabriel, Jr., Judge Presiding.             the claimant was required to file his bill of review petition
                                                             in the same court where the default judgment was
Disposition: AFFIRMED.                                       taken. The trial court did not err in failing to hear
                                                             evidence before granting a default in favor of the
Core Terms                                                   claimant, and he was not required to comply with Tex.
                                                             Lab. Code Ann. §§ 410.258, 410.253(b) (2006). Finally,
                                                             the return of citation did not have to be verified.
default judgment, bill of review, amended petition,
workers' compensation, original petition, face of the
                                                             Outcome
record, registered agent, requirements, damages, pet,
trial court, jurisdictional, allegations, proceedings,       The decision was affirmed.
diligence, contends, notice
                                                             LexisNexis® Headnotes
Case Summary
                                                                Civil Procedure > Appeals > Notice of Appeal
Procedural Posture
                                                                Civil Procedure > Appeals > Reviewability of Lower Court
Appellant insurance carrier filed a restricted appeal to        Decisions > Timing of Appeals
challenge a decision from the 45th Judicial District
                                                             HN1 In order to prevail in a restricted appeal, a party
Court, Bexar County, Texas, which granted a bill of
                                                             must establish the following: (1) it filed notice of the
review to appellee benefit claimant after a default
                                                             restricted appeal within six months after the final
judgment was entered in favor of the carrier in a workers'
                                                             judgment was signed; (2) it was a party to the underlying
compensation case.
                                                             litigation; (3) it did not participate in the underlying
                                                             proceedings and did not timely file any post-judgment
Overview
                                                             motions; and (4) error is apparent on the face of the
A no-answer default judgment reversed and set aside a        record. Tex. R. App. P. 26.1(c), 30.
decision in a workers' compensation case. The claimant
then filed a petition for a bill of review, but no answer       Civil Procedure > ... > Pleadings > Amendment of
was filed. A default judgment was entered, and the              Pleadings > General Overview
carrier then filed a restricted appeal. In affirming, the       Civil Procedure > ... > Pleadings > Service of Process >
appellate court determined that there were four                 General Overview
                                            2009 Tex. App. LEXIS 338, *1


  Civil Procedure > ... > Default & Default Judgments >      proof of proper service. Tex. R. Civ. P. 107 prohibits the
  Default Judgments > Entry of Default Judgments             rendition of a default judgment unless proof of service
                                                             and return have been on file with clerk for ten days.
HN2 In the context of a default judgment, Caprock
follows the general rule that only an amended petition       Further, the majority of courts of appeals have held that
that seeks a more onerous judgment requires new              a recital in a petition that names a person or entity as the
service.                                                     registered agent for service on the defendant is prima
                                                             facie evidence of that fact.
  Civil Procedure > Judgments > Relief From Judgments >
  Bills of Review                                              Civil Procedure > Preliminary Considerations > Venue >
                                                               Special Venue
HN3 In order to prevail on a bill of review, a petitioner
                                                               Workers' Compensation & SSDI > Administrative
must prove (1) a meritorious defense (2) that he was
                                                               Proceedings > Judicial Review > General Overview
prevented from making by fraud, accident, or wrongful
act of the opposing party or official mistake (3) without    HN6 The statutory venue requirements set forth in the
any fault or negligence of his own. However, a defendant     Texas Workers' Compensation Act provide that suit for
who is not served with process is entitled to a bill of
                                                             judicial review of a Texas Workers Compensation
review without a further showing, because the
                                                             Commission decision must be filed in the county where
Constitution discharges the first element, and lack of
                                                             the employee resided at the time of injury. Tex. Lab.
services establishes the second and third. And,
                                                             Code Ann. § 410.252(b)(1) (2006).
traditionally, a petitioner must also show he exercised
due diligence to pursue all adequate legal remedies
                                                               Civil Procedure > Preliminary         Considerations    >
against a former judgment. But, while diligence is
                                                               Jurisdiction > General Overview
required from properly served parties or those who
have appeared, those who have not been served have             Civil Procedure > Preliminary Considerations > Venue >
no duty to act, diligently or otherwise.                       General Overview

                                                               Civil Procedure > Judgments > Relief From Judgments >
  Civil Procedure > ... > Pretrial Judgments > Default &       Bills of Review
  Default Judgments > Default Judgments
                                                             HN7 A bill of review is a direct attack on a previous trial
HN4 A default judgment on an unliquidated claim admits       court's judgment. And, a direct attack, which is brought
all allegations of fact alleged in the petition except the   for the purpose of correcting a presumably incorrect
amount of damages.                                           former judgment, may only be brought in the court
                                                             rendering the judgment. This is a jurisdictional
  Civil Procedure > Preliminary        Considerations   >
                                                             requirement, not merely a matter of venue.
  Jurisdiction > General Overview

  Civil Procedure > ... > Service of Process > Proof of        Civil Procedure > ... > Default & Default Judgments >
  Service > General Overview                                   Default Judgments > Entry of Default Judgments
  Civil Procedure > ... > Pretrial Judgments > Default &
                                                             HN8 Tex. R. Civ. P. 241 and 243 set forth the evidentiary
  Default Judgments > Default Judgments
                                                             requirements for default judgment proceedings. Rule
  Civil Procedure > Appeals > Record on Appeal               241 provides that when a default judgment is rendered,
                                                             and the claim is liquidated and proved by an instrument
HN5 Jurisdictional facts must affirmatively appear on        in writing, the court shall assess damages. There is no
the face of the record for a default judgment to withstand   requirement under Rule 241 for an evidentiary hearing
scrutiny. For jurisdictional facts to affirmatively appear   to be held. Rule 243 provides that when a cause of
on the face of the record, the record must show the          action is unliquidated or not proved by an instrument in
following: (1) the pleadings must allege facts that, if      writing, the court shall hear evidence as to damages.
true, would make the defendant responsible to answer;
and (2) there must be proof in the record that the             Workers' Compensation & SSDI > Administrative
defendant was, in fact, served in the manner required          Proceedings > Judicial Review > General Overview
by statute. However, when a defendant has not
answered, a trial court acquires jurisdiction solely on      HN9 See Tex. Lab. Code Ann. § 410.258(a), (f) (2006).
                                                                                                     Page 2 of 7
                                               2009 Tex. App. LEXIS 338, *1


  Workers' Compensation & SSDI > Administrative              Opinion by: Karen Angelini
  Proceedings > Judicial Review > General Overview

HN10 Tex. Lab. Code Ann. § 410.258 states that the           Opinion
Texas Workers Compensation Commission should
receive advance notice of the attack on its decision so      MEMORANDUM OPINION
that the Commission may have thirty days to intervene
in the judicial proceedings. § 410.258(c).                   AFFIRMED

                                                             This is a restricted appeal arising out of a default
  Workers' Compensation & SSDI > Administrative
  Proceedings > Judicial Review > General Overview           judgment that was entered in a bill of review case. We
                                                             affirm the trial court's judgment.
HN11 The Court of Appeals of Texas, Fourth District,
San Antonio, interprets Tex. Lab. Code Ann. § 410.258        FACTUAL AND PROCEDURAL BACKGROUND
to mean that only a party who has initiated a proceeding
under the Texas Labor Code is subject to its filing          Rudolph Guzman filed a workers' compensation claim,
requirements.                                                asserting he had sustained an injury in the course of his
                                                             employment. After holding hearings, the Texas Workers
  Evidence > Inferences & Presumptions > Presumptions        Compensation Commission ("TWCC") determined
                                                             Guzman had indeed sustained a compensable injury
  Governments > Legislation > Interpretation
                                                             for which Continental Casualty Company is liable.
HN12 In interpreting a statute, courts must look to its      Continental then appealed the TWCC decision to a
plain and common meaning and presume that the                Bexar County district court. Continental then obtained a
legislature intended the plain meaning of its words.         no-answer default judgment against Guzman that
                                                             reversed and set aside the TWCC decision entitling
  Workers' Compensation & SSDI > Administrative              Guzman to workers' compensation benefits. After
  Proceedings > Judicial Review > General Overview            [*2] discovering a default judgment had been taken
                                                             against him, Guzman filed an "Original Petition for Bill of
HN13 See Tex. Lab. Code Ann. § 410.253.
                                                             Review" in the Bexar County district court seeking to set
                                                             aside the default judgment against him. Guzman served
  Workers' Compensation & SSDI > Administrative
                                                             Continental through the CT Corporation, which Guzman
  Proceedings > Judicial Review > General Overview
                                                             alleged in his original petition to be Continental's
HN14 Tex. Lab. Code Ann. § 410.253 applies only to a         registered agent for service. Continental did not file an
party seeking judicial review of a final Texas Workers       answer to the suit. Thereafter, Guzman filed a "First
Compensation Commission decision.                            Amended Original Petition for Bill of Review"; however,
                                                             he did not serve Continental with the amended petition.
  Governments > Courts > Clerks of Court                     Guzman then filed a motion for default judgment, which
  Governments > Local Governments > Employees &              was granted by the trial court based upon the amended
  Officials                                                  petition. Continental did not participate in the
                                                             proceedings, nor were the proceedings recorded by a
HN15 District clerks, like sheriffs and constables, are      court reporter. Upon discovering that a default judgment
considered "officers" -- persons who, by virtue of their     had been taken against it, Continental filed this restricted
offices, are not required to verify returns.                 appeal.

Counsel: For APPELLANT: Deanne C. Ayers, Julie B.            RESTRICTED APPEAL
Tebbets, Ayers & Ayers, Colleyville, TX.
                                                             A. Standard of Review
For APPELLEE: Israel M. Reyna, Texas Riogrande
Legal Aid, Inc., Laredo, TX.                                 HN1 In order to prevail in its restricted appeal,
                                                             Continental must establish the following: (1) it filed
Judges: Opinion by: Karen Angelini, Justice. Sitting:        notice of the restricted appeal within six months after
Karen Angelini, Justice Phylis J. Speedlin, Justice          the final judgment was signed; (2) it was a party to the
Steven C. Hilbig, Justice.                                   underlying litigation; (3) it did not participate in the
                                                                                                           Page 3 of 7
                                              2009 Tex. App. LEXIS 338, *2



underlying [*3] proceedings and did not timely file any         Guzman was not required to serve the amended petition
post-judgment motions; and (4) error is apparent on the         on Continental before taking the default judgment.
face of the record. TEX. R. APP. P. 26.1(c), 30;
Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848              C. Bill of Review Elements
(Tex. 2004). The only issue in this restricted appeal
concerns whether error is apparent on the face of the           Continental argues that Guzman did not meet all
record.                                                         elements of a bill of review. More particularly,
                                                                Continental contends the record does not show Guzman
B. Service of Amended Petition                                  exercised due diligence.

Continental contends that the failure of Guzman to              HN3 In order to prevail on a bill of review, a petitioner
serve it with the amended petition amounts to error             must prove (1) a meritorious defense (2) that he was
apparent on the face of the record. To support this             prevented from making by fraud, accident, or wrongful
contention, Continental relies on Caprock Construction          act of the opposing party or official mistake (3) without
Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203           any fault or negligence of his own. Ross v. Nat'l Ctr. for
(Tex. App.--Dallas 1997, no writ). In Caprock, as in this       the Employment of the Disabled, 197 S.W.3d 795, 797
case, the plaintiff served the defendant with the original      (Tex. 2006). However, "a defendant who is not served
petition, but did not serve the defendant with the              with process is entitled to a bill of review without a
amended petition before taking a default judgment. Id.          further showing, because the Constitution discharges
at 204. The Dallas Court of Appeals concluded that, in          the first element, and lack of services establishes the
order for the default judgment to be upheld, the plaintiff      second and third." Id. And, traditionally, a petitioner
was required to serve the defendant with the amended            must also show he exercised due diligence to pursue all
petition. Id. at 205. In so holding, the court noted that the   adequate legal remedies against a former judgment.
amended petition named an additional plaintiff, thus            King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
exposing the defendant to additional liability. Id.             (Tex. 2003). But, while diligence is required from
                                                                properly served parties or those [*6] who have
Later-decided cases have distinguished Caprock's                appeared, those who have not been served have no
 [*4] holding and refused to set aside default judgments        duty to act, diligently or otherwise. Ross, 197 S.W.3d at
where the amended petition did not expose the                   798.
defendant to additional liability. In Rose v. Rose, 117
S.W.3d 84, 91 (Tex. App.--Waco 2003, no pet.), the              HN4 A default judgment on an unliquidated claim admits
Waco Court of Appeals noted that HN2 Caprock                    all allegations of fact alleged in the petition except the
followed the general rule that only an amended petition         amount of damages. Morgan v. Compugraphic Corp.,
that seeks a more onerous judgment requires new                 675 S.W.2d 729, 731 (Tex. 1984). Because Continental
service. And, in Palomin v. Zarsky Lumber Co., 26               failed to answer the bill of review petition and Guzman
S.W.3d 690, 694 (Tex. App.--Corpus Christi 2000, pet.           was awarded a default judgment, all assertions made in
denied), the Corpus Christi Court of Appeals similarly          the petition are thus admitted as fact. Guzman pled in
distinguished Caprock, by explaining that service was           the bill of review proceeding that the substituted service
held to be improper in Caprock because the amended              in the underlying workers' compensation suit filed by
pleading exposed the defendant to additional liability.         Continental violated his right to constitutional due
                                                                process because he was not properly served. Guzman
In this case, Continental argues that Guzman's                  also alleged that he was not properly served because
amended petition adds allegations of extrinsic fraud,           Continental either fraudulently or mistakenly
failure to execute official duties, and lack of adequate        misinformed the court regarding Guzman's street
legal remedy. Although the amended petition did, in             addresses for the purpose of serving him in the
fact, contain these additional factual allegations, no          underlying suit. Thus, the substituted service was
new causes of action were pled. Thus, the amended               invalid, and Guzman's default judgment on his amended
petition did not seek a more onerous judgment than the          petition stands without proof of the other elements of
original petition. Both the original petition and the           the bill of review. See id. And, because the record
amended petition requested that the trial court grant the       shows that Guzman did not know of the suit or the
petition for bill of review, order a new trial, and [*5] set    default judgment in time to [*7] file an answer, a motion
aside the default judgment against Guzman. Therefore,           for new trial, or an appeal, he had no duty to act
                                                                                                                Page 4 of 7
                                            2009 Tex. App. LEXIS 338, *7



diligently. See Ross, 197 S.W.3d at 798.                      Further, Guzman pled that an improper default judgment
                                                              had been taken against him. Guzman also set forth that
D. Jurisdiction                                               Continental "may be served with process by serving its
                                                              registered agent as follows: CT Corporation System,
Continental alleges jurisdiction is not shown because         350 North St. Paul Street, Dallas, Texas 75201."
Guzman's original petition did not plead that Continental
is the workers' compensation carrier for Guzman or that       The record contains a notice and citation, with
it engaged in business in Texas. Continental also             accompanying petition for bill of review, issued by the
complains that there was no evidence that C.T.                Bexar County District Clerk, that was directed to CT
Corporation was the registered agent for service for          Corporation System as registered agent of Continental.
Continental or that C.T. Corporation forwarded the            The record further shows that the notice and citation
service to Continental.                                       were served on Continental through its registered agent,
                                                              CT Corporation System, by certified mail, return receipt
HN5 Jurisdictional facts must affirmatively appear on         requested. The officer's return indicates the citation was
the face of the record for a default judgment to withstand    executed. We conclude that Guzman's allegations and
scrutiny. McKanna v. Edgar, 388 S.W.2d 927, 929-30            the proof of service contained in the record are sufficient
(Tex. 1965). For jurisdictional facts to affirmatively        to satisfy the jurisdictional requirements.
appear on the face of the record, the record must show
the following: (1) the pleadings must allege facts that, if   E. Venue
true, would make the defendant responsible to answer;
and (2) there must be proof in the record that the            Continental contends that Guzman was required to
defendant was, in fact, served in the manner required         comply with HN6 the statutory venue requirements set
by statute. Whitney v. L & L Realty Corp., 500 S.W.2d         forth in the Texas Workers' Compensation Act, which
94, 95-96 (Tex. 1973). However, when a defendant has          provide that suit for judicial review [*10] of a TWCC
not answered, a trial court acquires jurisdiction solely      decision must be filed in the county where the employee
on proof of proper service. [*8] Furst v. Smith, 176          resided at the time of injury. See TEX. LAB. CODE
S.W.3d 864, 868 (Tex. App.--Houston [1st Dist.] 2005,         ANN. § 410.252(b)(1) (Vernon 2006). And, according to
no pet.); see TEX. R. CIV. P. 107 (prohibiting rendition      Continental, because the face of the record does not
of default judgment unless proof of service and return        establish that Guzman resided in Bexar County at the
have been on file with clerk for ten days). Further, the      time of injury, the bill of review default judgment should
majority of courts of appeals have held that a recital in a   be reversed.
petition that names a person or entity as the registered
agent for service on the defendant is prima facie             HN7 A bill of review, however, is a direct attack on a
evidence of that fact. See, e.g., Conseco Fin. Servicing      previous trial court's judgment. Pursley v. Ussery, 937
v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 672 (Tex.          S.W.2d 566, 567 (Tex. App.--San Antonio 1996, no
App.--Houston [14th Dist.] 2002, no pet.); K-Mart             writ). And, a direct attack, which is brought for the
Apparel Fashions Corp. v. Ramsey, 695 S.W.2d 243,             purpose of correcting a presumably incorrect former
246 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd          judgment, may only be brought in the court rendering
n.r.e.); Cox Mktg. v. Adams, 688 S.W.2d 215, 218 (Tex.        the judgment. Id. at 567-68. This is a jurisdictional
App.--El Paso 1985, no writ).                                 requirement, not merely a matter of venue. Id. at 568.

We find sufficient proof in the record that Continental       Significantly, we note that the initial suit involving this
was served properly and that the court had jurisdiction.      workers' compensation claim, which was an appeal of
In his original petition for bill of review, Guzman alleged   the TWCC decision in Guzman's favor, was filed by
that Continental "is a corporation authorized to engage       Continental in Bexar County. Because, as a jurisdictional
in the business of workers compensation insurance as          matter, Guzman was required to file his bill of review of
defined by the Texas Workers' Compensation Act and            petition in the same court in which the default judgment
as allowed by the State Agency." And, Guzman alleged          was taken, there is no need for the face of the record to
that Continental had filed suit in Bexar County against       reflect Guzman's county of residence [*11] at the time of
him, [*9] claiming the TWCC's final decision that he, a       the injury.
workers' compensation claimant, was entitled to
workers' compensation benefits should be reversed.            F. Sufficiency of the Record
                                                                                                             Page 5 of 7
                                             2009 Tex. App. LEXIS 338, *11



Continental also argues that the record from the bill of       thirty days to intervene in the judicial proceedings. Id. §
review proceeding is incomplete and, therefore,                410.258(c); see Casillas v. State Office of Risk Mgmt.,
amounts to reversible error. Specifically, Continental         146 S.W.3d 735, 738 (Tex. App.--El Paso 2004, no pet.)
complains that no reporter's record was taken during            [*13] .
the proceeding, and the clerk's record contains no
affidavits or evidence supporting the granting of              HN11 We interpret Section 410.258 to mean that only a
Guzman's bill of review.                                       party who has initiated a proceeding under the Labor
                                                               Code is subject to its filing requirements. See Nat'l Liab.
HN8 Texas Rules of Civil Procedure 241 and 243 set             & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)
forth the evidentiary requirements for default judgment        (holding that HN12 in interpreting a statute, courts must
proceedings. See TEX. R. CIV. P. 241, 243. Rule 241            look to its "plain and common meaning" and "presume
provides that when a default judgment is rendered, and         that the Legislature intended the plain meaning of its
the claim is liquidated and proved by an instrument in         words."). Here, it was Continental, not Guzman, that
writing, the court shall assess damages. TEX. R. CIV. P.       "initiated a proceeding" under the statute when it filed its
241. There is no requirement under Rule 241 for an             appeal of the TWCC decision in the district court. There
evidentiary hearing to be held. Rule 243 provides that         is nothing in the statute requiring a party seeking review
when a cause of action is unliquidated or not proved by        of a default judgment in a bill of review proceeding to
an instrument in writing, the court shall hear evidence        notify the TWCC of the attack on the trial court's action.
as to damages. See TEX. R. CIV. P. 243. Guzman's               Guzman's bill of review does not attack the TWCC
petition did not seek relief for damages, but rather           decision, but rather requests that the default judgment
requested that the default judgment rendered against           entered in favor of Continental be set aside so the
him be set aside and vacated and that a new trial be           parties may return to the trial court to resolve
granted. The judgment entered in Guzman's favor                Continental's initial appeal of the TWCC decision. Thus,
granted the [*12] relief requested. Thus, this case is         Guzman's bill of review was not an initiation of a
akin to a suit for liquidated damages as opposed to            proceeding under the Labor Code, and he was not
unliquidated damages for which an evidentiary hearing          required to comply with Section 410.258.
would be required; therefore, the trial court did not err in
failing to hear evidence before granting default judgment      Similarly, [*14] Continental contends the trial court
in Guzman's favor.                                             lacked jurisdiction to enter the default judgment against
                                                               it in the bill of review proceeding because Guzman
G. Compliance with Labor Code                                  failed to comply with Section 410.253 of the Texas
                                                               Labor Code. That section provides the following:
Continental argues that Guzman's failure to produce
evidence of compliance with Section 410.258 of the                 HN13 A party may not seek judicial review
Texas Labor Code renders the trial court's judgment                under Section 410.251 unless the party has
granting the bill of review void. Section 410.258                  provided written notice of the suit to the division
provides, in part, the following:                                  as required by this section.

    HN9 (a) The party who initiated a proceeding               TEX. LAB. CODE ANN. § 410.253(b) (Vernon 2006).
    under this subchapter or Subchapter G must                 We again interpret HN14 section 410.253 to apply only
    file any proposed judgment . . ., including a              to a party seeking judicial review of a final TWCC
    proposed default judgment, with the division               decision. Because it was Continental, not Guzman,
    not later than the 30th day before the date on             seeking judicial review, Guzman was not required to
    which the court is scheduled to enter the                  comply with Section 410.253(b) of the Texas Labor
    judgment . . . .                                           Code.
    (f) A judgment entered . . . without complying
    with the requirements of this section is void.             H. Validity of Service of Process

TEX. LAB. CODE ANN. § 410.258(a),(f) (Vernon 2006)             Finally, Continental contends service of citation is
(emphasis added). HN10 Section 410.258 also states             defective because the return of citation is not verified as
that the TWCC should receive advance notice of the             required by Rule 107 of the Texas Rules of Civil
attack on its decision so that the commission may have         Procedure. Verification, however, was not required in
                                                                                                              Page 6 of 7
                                             2009 Tex. App. LEXIS 338, *14



this instance. Service was accomplished by certified           CONCLUSION
mail, and the return was signed by the district clerk.
HN15 District clerks, like sheriffs and constables, are        We find no error in the trial court's granting of Guzman's
considered "'officers' -- persons who, by virtue of their      bill of review. We, therefore, affirm the trial court's
offices, are not required [*15] to verify returns." Ins. Co.   judgment.
v. Lejeune, 261 S.W.3d 852, 859 (Tex. App.--Texarkana
2008, pet. filed). Thus, Continental's assertion is without    Karen Angelini, Justice
merit.




                                                                                                             Page 7 of 7
                                                                                                                    Page 1




                                                    1 of 1 DOCUMENT




Cited
As of: Mar 30, 2015

                COTTON PATCH CAFE, INC., APPELLANT v. CARL McCARTY, APPELLEE

                                                     NO. 2-05-082-CV

                    COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

                                               2006 Tex. App. LEXIS 1833


                                                March 9, 2006, Delivered

PRIOR HISTORY:       [*1] FROM THE 67TH                        damages for pain and suffering, physical impairment,
DISTRICT COURT OF TARRANT COUNTY.                              and mental anguish, as well as factually sufficient evi-
                                                               dence to support the trial court's award; thus, the award
CASE SUMMARY:                                                  of $ 100,000 was not excessive.

                                                               OUTCOME: The court affirmed the trial court's award
PROCEDURAL POSTURE: In a restricted appeal,                    of $ 100,000 for past and future pain and suffering,
appellant restaurant challenged a judgment of the 67th         physical impairment, and mental anguish damages, but
District Court of Tarrant County (Texas), which entered        reversed the award of $ 50,000 for past and future medi-
a no-answer default judgment against it in a suit brought      cal expenses. The court suggested a remittitur of $
by appellee patron for injuries sustained in a trip and fall   50,000. Unless a voluntary remittitur was filed, the court
accident.                                                      reversed the trial court's judgment and remanded the case
                                                               to the trial court for a new trial on the issue of unliqui-
OVERVIEW: Although the trial court indicated that it           dated damages.
was awarding the patron $ 50,000 for past and future
medical expenses and $ 100,000 for past and future pain        LexisNexis(R) Headnotes
and suffering, physical impairment, and mental anguish,
it did not thereafter itemize the latter award. The court
held that the evidence was legally insufficient to support
the award for past and future medical expenses because         Civil Procedure > Appeals > Reviewability > General
the patron neither offered an affidavit in compliance with     Overview
Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (1997) nor           Civil Procedure > Appeals > Standards of Review >
proved that his medical expenses were reasonable and           Substantial Evidence > Sufficiency of Evidence
necessary through expert testimony. However, the               [HN1] A restricted appeal is a direct attack on a trial
patron's undisputed testimony, including that he fell and      court's judgment that affords an appellant the same scope
injured his knee, that he had sharp pain in his lower back     of review as an ordinary appeal, that is, review of the
and legs, that his foot swelled when he walked, that he        entire case. A direct attack on a judgment by restricted
now used a walker to move around his home, and that he         appeal must (1) be brought within six months after the
was unable to have surgery to address his injuries result-     trial court signs the judgment (2) by a party to the suit (3)
ing from the fall, constituted legally sufficient evidence     who did not participate in the actual trial, and (4) the
to support the trial court's award of some monetary            error complained of is apparent from the face of the rec-
                                                                                                                       Page 2
                                               2006 Tex. App. LEXIS 1833, *


ord. Tex. R. App. P. 30. The face of the record, for pur-
poses of restricted appeal review, consists of all the pa-
pers on file in the appeal, including the reporter's record.     Civil Procedure > Pretrial Judgments > Default > En-
Appellate review thus covers legal and factual sufficien-        try of Default Judgments
cy claims.                                                       Civil Procedure > Remedies > Damages > General
                                                                 Overview
                                                                 [HN4] When a trial court does not itemize damages in its
Civil Procedure > Remedies > Damages > General                   default judgment, it is impossible to determine what por-
Overview                                                         tion of the damages were ascribed to each ground of re-
Civil Procedure > Appeals > Standards of Review >                covery claimed by a plaintiff.
Substantial Evidence > Sufficiency of Evidence
[HN2] In deciding a legal sufficiency challenge, an ap-
pellate court considers only the evidence and inferences         Civil Procedure > Appeals > Standards of Review >
which, when viewed in the light most favorable to the            Substantial Evidence > Sufficiency of Evidence
judgment, tend to support the judgment; the court disre-         Evidence > Procedural Considerations > Burdens of
gards all evidence and inferences to the contrary and will       Proof > General Overview
overrule the challenge if more than a scintilla of evidence      Torts > Damages > Compensatory Damages > Medical
supports the finding. An assertion that the evidence is          Expenses
factually insufficient to support a fact finding means that      [HN5] A claim for medical expenses must be supported
the evidence supporting the finding is so weak or the            by evidence that such expenses were reasonably neces-
evidence to the contrary is so overwhelming that the             sary for the plaintiff to incur as a result of her injuries. A
answer should be set aside and a new trial ordered. The          plaintiff may prove that medical expenses are reasonable
court is required to consider all of the evidence in the         and necessary (1) by presenting expert testimony on the
case in making this determination, not just the evidence         issues of reasonableness and necessity or (2) by present-
that supports the finding. In determining whether dam-           ing an affidavit prepared and filed in compliance with
ages are excessive, the court applies the same test as for       Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (1997).
any factual insufficiency question, examining all the ev-        Proof of amounts charged or paid is not proof of reason-
idence in the record to determine whether sufficient evi-        ableness, and evidence that medical expenses are rea-
dence supports the damage award, remitting only if some          sonable and customary is no evidence that the medical
portion is so factually insufficient or so against the great     expenses were reasonably necessary. Section 18.001
weight and preponderance of the evidence as to be man-           provides in part that, unless a controverting affidavit is
ifestly unjust.                                                  filed as provided by § 18.001, an affidavit that the
                                                                 amount a person charged for a service was reasonable at
                                                                 the time and place that the service was provided and that
Civil Procedure > Pretrial Judgments > Default > En-             the service was necessary is sufficient evidence to sup-
try of Default Judgments                                         port a finding of fact by judge or jury that the amount
Civil Procedure > Appeals > Standards of Review >                charged was reasonable or that the service was neces-
Substantial Evidence > Sufficiency of Evidence                   sary.
Evidence > Testimony > Lay Witnesses > General
Overview
[HN3] A default judgment that is taken against a non-            Civil Procedure > Pretrial Judgments > Default > Re-
answering defendant on an unliquidated claim operates            lief From Default
as an admission of all facts set out in the plaintiff's peti-    Civil Procedure > Remedies > Damages > General
tion except for the amount of damages. A causal nexus            Overview
between the defendant's conduct and the event sued up-           Civil Procedure > Appeals > Remands
on, or liability, is thus established in such a case, but        [HN6] When an appellate court sustains a no evidence
proof of a causal nexus between the event sued upon and          point after an uncontested hearing on unliquidated dam-
the plaintiff's injuries is still required. A challenge to the   ages following a no-answer default judgment, the appro-
legal and factual sufficiency of the evidence to show this       priate disposition is a remand for a new trial on the issue
causal nexus is examined using the same standards ap-            of unliquidated damages. But the court may also suggest
plicable to any sufficiency challenge. Lay testimony is          a voluntary remittitur of this amount. Tex. R. App. P.
adequate to prove causation in those cases in which gen-         46.5. If the court finds that part of a damages verdict
eral experience and common sense will enable a layman            lacks sufficient evidentiary support, its proper course is
to determine, with reasonable probability, the causal re-        to suggest a remittitur of that part of the damages.
lationship between the event and the condition.
                                                                                                                  Page 3
                                             2006 Tex. App. LEXIS 1833, *


                                                              awards in similar cases to determine if an award for pain
Torts > Damages > Compensatory Damages > Pain &               and suffering is excessive.
Suffering > Award Calculations
[HN7] The process of awarding damages for amorphous,
discretionary injuries such as pain and suffering or men-     Civil Procedure > Pleading & Practice > Service of
tal anguish is inherently difficult because the alleged       Process > Summons > Content & Form
injury is a subjective, unliquidated, nonpecuniary loss.      Civil Procedure > Pretrial Judgments > Default > Re-
The presence or absence of pain, either physical or men-      lief From Default
tal, is an inherently subjective question because the pro-    [HN11] Strict compliance with the rules of service of
cess is not readily susceptible to objective analysis. Ac-    citation must affirmatively appear in the record in order
cordingly, the trier of fact is given broad discretion when   for a default judgment to withstand a direct attack. When
determining such damages.                                     the attempted service of process is invalid, the trial court
                                                              acquires no personal jurisdiction over the defendant, and
                                                              the default judgment is void. There are no presumptions
Torts > Damages > Compensatory Damages > Pain &               in favor of valid issuance, service, and return of citation
Suffering > Emotional & Mental Distress > Evidence            in the face of a direct attack on a default judgment, but
[HN8] An award for mental anguish damages must be             strict compliance does not require obeisance to the
supported either by direct evidence of the nature, dura-      minutest detail. Tex. R. Civ. P. 107 requires a return to
tion, and severity of the plaintiff's mental anguish,         state when the citation was served, to state the manner of
thereby establishing a substantial interruption in the        service, to be signed by the officer officially or by the
plaintiff's daily routine, or by circumstantial evidence of   authorized person, and to be verified if the return is by an
a high degree of mental pain and distress that is greater     authorized person. Tex. R. Civ. P. 107.
than mere worry, anxiety, vexation, embarrassment, or
anger. Damages for future mental anguish are recovera-        COUNSEL: For APPELLANT: Paul A. Bezney, Tracy
ble if there is a reasonable probability that they will be    L. Stoker, ADKERSON, HAUDER & BEZNEY, P.C.,
suffered in the future.                                       Dallas, TX.

                                                              For APPELLEE: Scott Nichol, MAUERHAN & ASSO-
Evidence > Procedural Considerations > Burdens of             CIATES, P.C., Azle, TX.
Proof > General Overview
Torts > Damages > Compensatory Damages > Pain &               JUDGES: PANEL B: LIVINGSTON, GARDNER, and
Suffering > Loss of Enjoyment                                 WALKER, JJ.
[HN9] In order to recover for physical impairment, a
plaintiff must show that the effect of the physical im-       OPINION BY: SUE WALKER
pairment is substantial and extends beyond any pain,
suffering, mental anguish, lost wages, or earning capaci-     OPINION
ty. Damages for physical impairment are meant to com-
pensate a plaintiff for an impairment of the capacity to      MEMORANDUM OPINION
enjoy life.                                                        1




                                                                       1   See TEX. R. APP. P. 47.4.
Torts > Damages > Compensatory Damages > Pain &
Suffering > Award Calculations                                    I. INTRODUCTION
[HN10] Once the existence of some pain, mental an-                 The trial court entered a no-answer default judgment
guish, and impairment has been established, there is no       against Appellant Cotton Patch Cafe, Inc. (Cotton Patch)
objective way to measure the adequacy of the amount           in a suit brought by Appellee Carl McCarty for injuries
awarded as compensation, which is generally left to the       sustained in a trip and fall accident. Cotton Patch brings
discretion of the fact-finder. The process of awarding        this restricted appeal and complains in two points that the
damages for amorphous; discretionary injuries such as         evidence is legally and factually insufficient to show a
pain and suffering is inherently difficult because the al-    causal nexus between McCarty's trip and fall and his
leged injury is a subjective, unliquidated, nonpecuniary      injuries and damages, that the evidence is insufficient to
loss. The amounts awarded for such damages are neces-         support the awards for past and future medical expenses,
sarily speculative, and each case must be judged on its       pain and suffering, physical impairment, and mental an-
own facts. Even though each case must be judged on its        guish, and that the trial court lacked jurisdiction because
own unique facts, it is proper to consider other approved     of an error on the return of citation. We will affirm [*2]
                                                                                                                    Page 4
                                               2006 Tex. App. LEXIS 1833, *


in part and reverse and remand in part, subject to a vol-       S.W.3d at 590. The face of the record, for purposes of
untary remittitur.                                              restricted appeal review, consists of all the papers on file
                                                                in the appeal, including the reporter's record. Norman
  II. FACTUAL AND PROCEDURAL BACK-
                                                                Commc'ns, 955 S.W.2d at 270. Our review thus covers
GROUND
                                                                legal and factual sufficiency claims, including the
     McCarty sued Cotton Patch on June 7, 2004, alleg-          amount of damages awarded and Cotton Patch's causal
ing that he suffered injuries and incurred damages caused       nexus claim. See id.; Morgan v. Compugraphic Corp.,
by Cotton Patch's negligence. McCarty served Cotton             675 S.W.2d 729, 731-32, 27 Tex. Sup. Ct. J. 501 (Tex.
Patch on June 23, 2004, but Cotton Patch did not file an        1984). Cotton Patch meets the first three requirements
answer. On August 27, 2004, the trial court held a hear-        for a restricted appeal; only the fourth requirement is at
ing on McCarty's request for a default judgment. A por-         issue--whether Cotton Patch demonstrated on the face of
tion of the evidence at the default judgment hearing            the record that the trial court erroneously entered a de-
shows that McCarty and his wife entered the Cotton              fault judgment against it.
Patch Restaurant in Lake Worth on July 5, 2003. As the
                                                                    IV. Sufficiency Challenges
hostess was leading them to a table, McCarty tripped
over a dustpan and fell on his right knee. McCarty went             In its first issue, Cotton Patch argues that the evi-
to a hospital the next day, received X-rays, and was re-        dence is legally and factually insufficient [*5] (1) to
ferred back to his family physician. A subsequent MRI           show a causal nexus between McCarty's trip and fall and
indicated that McCarty had a torn meniscus in his knee,         his injuries and damages and (2) to support the trial
and McCarty's doctor recommended that he have surgery           court's award for unliquidated damages.
on his knee and lower back. Through medical invoices,
                                                                    A. Standards of Review
McCarty offered evidence that he has incurred medical
expenses up until the time of the default judgment hear-             [HN2] In deciding a legal sufficiency challenge, we
ing totaling about $ 7,000. McCarty also offered evi-           consider only the evidence and inferences which, when
dence in the form of an estimate from a medical [*3]            viewed in the light most favorable to the judgment, tend
office indicating that the cost of future surgery for his       to support the judgment; we disregard all evidence and
knee would total about $ 14,677. McCarty testified that         inferences to the contrary and will overrule the challenge
the back surgery would could cost about $ 25,000 and            if more than a scintilla of evidence supports the finding.
that he would likely need physical therapy after his knee       Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84,
surgery, which would cost "anywhere from several hun-           35 Tex. Sup. Ct. J. 881 (Tex. 1992). An assertion that the
dred dollars up." McCarty also described the extent to          evidence is factually insufficient to support a fact finding
which the accident and injuries have affected him, which        means that the evidence supporting the finding is so
we detail in our sufficiency analysis below.                    weak or the evidence to the contrary is so overwhelming
                                                                that the answer should be set aside and a new trial or-
     The trial court ultimately entered an August 27,
                                                                dered. Garza v. Alviar, 395 S.W.2d 821, 823, 9 Tex.
2004 final default judgment awarding McCarty $ 50,000
                                                                Sup. Ct. J. 76 (Tex. 1965). We are required to consider
for past and future medical expenses; $ 100,000 for past
                                                                all of the evidence in the case in making this determina-
and future pain and suffering, physical impairment, and
                                                                tion, not just the evidence that supports the finding.
mental anguish; prejudgment and postjudgment interest;
                                                                Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07,
and costs. Cotton Patch filed a supersedeas bond on Jan-
                                                                41 Tex. Sup. Ct. J. 683 (Tex.), cert. denied, 525 U.S.
uary 18, 2005, and a notice of restricted appeal on Feb-
                                                                1017, 142 L. Ed. 2d 450, 119 S. Ct. 541 (1998). [*6] In
ruary 25, 2005.
                                                                determining whether damages are excessive, we apply
    III. RESTRICTED APPEAL                                      the same test as for any factual insufficiency question,
                                                                examining all the evidence in the record to determine
      [HN1] A restricted appeal is a direct attack on the
                                                                whether sufficient evidence supports the damage award,
trial court's judgment that affords an appellant the same
                                                                remitting only if some portion is so factually insufficient
scope of review as an ordinary appeal, that is, review of
                                                                or so against the great weight and preponderance of the
the entire case. In re E.K.N., 24 S.W.3d 586, 590 (Tex.
                                                                evidence as to be manifestly unjust. Torrington Co. v.
App.--Fort Worth 2000, no pet.). A direct attack on a
                                                                Stutzman, 46 S.W.3d 829, 851, 44 Tex. Sup. Ct. J. 225
judgment by restricted appeal must (1) be brought [*4]
                                                                (Tex. 2000); Larson v. Cactus Util. Co., 730 S.W.2d
within six months after the trial court signs the judgment
                                                                640, 641, 30 Tex. Sup. Ct. J. 331 (Tex. 1987); Pope v.
(2) by a party to the suit (3) who did not participate in the
                                                                Moore, 711 S.W.2d 622, 624, 29 Tex. Sup. Ct. J. 412
actual trial, and (4) the error complained of is apparent
                                                                (Tex. 1986).
from the face of the record. See TEX. R. APP. P. 30;
Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d                     B. Causal Nexus
269, 270, 41 Tex. Sup. Ct. J. 83 (Tex. 1997); E.K.N., 24
                                                                                                                   Page 5
                                              2006 Tex. App. LEXIS 1833, *


     Generally, [HN3] a default judgment that is taken        problem" twenty-five years earlier that required therapy,
against a nonanswering defendant on an unliquidated           not surgery. McCarty testified that he fell and injured his
claim operates as an admission of all facts set out in the    knee and lower back. He testified that "as a result of [the
plaintiff's petition except for the amount of damages.        trip and fall]," he went to the hospital, he received
Heine, 835 S.W.2d at 83; see also Argyle Mechanical,          X-rays, he underwent an MRI of his knee and back, he
Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex.         needs surgery on his knee and back, he now uses a walk-
App.--Dallas 2005, no pet.). A causal nexus between the       er to help move about his house, and he has pain (back
defendant's conduct and the event sued upon, or liability,    and both legs) from his injures that affect his "state of
is thus established in such a case, but proof of a causal     mind." We hold that the evidence is legally and factually
nexus between the event sued upon and the plaintiff's         sufficient to establish a causal nexus between McCarty's
injuries [*7] is still required. 2 Morgan, 675 S.W.2d at      trip and fall (the event sued upon) and his injuries and
731- 32; Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex.       damages. See Morgan, 675 S.W.2d at 731-32; Jack-
App.--Houston [14th Dist.] 2002, no pet.). A challenge to     son, 77 S.W.3d at 902. [*9]
the legal and factual sufficiency of the evidence to show
                                                                  C. Unliquidated Damages
this causal nexus is examined using the same standards
applicable to any sufficiency challenge. Jackson, 77               Although the trial court indicated at the conclusion
S.W.3d at 902. "Lay testimony is adequate to prove cau-       of the default judgment hearing that it was awarding
sation in those cases in which general experience and         McCarty $ 50,000 for past and future medical expenses
common sense will enable a layman to determine, with          and $ 100,000 for past and future pain and suffering,
reasonable probability, the causal relationship between       physical impairment, and mental anguish, it did not
the event and the condition." Morgan, 675 S.W.2d at           thereafter itemize the latter award. [HN4] When the trial
733.                                                          court does not itemize damages in its default judgment, it
                                                              is impossible to determine what portion of the damages
       2    In Morgan, the supreme court stated,              were ascribed to each ground of recovery claimed by the
                                                              plaintiff. Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex.
                   The causal nexus between the               App.--Fort Worth 2003, no pet.). We will therefore ex-
               event sued upon and the plaintiff's            amine the record to determine whether legally sufficient
               injuries is strictly referable to the          evidence exists to establish each element of damage and
               damages portion of the plaintiff's             whether the amount--a $ 100,000 global award for the
               cause of action. Even if the de-               total of all of these elements of damage--is excessive.
               fendant's liability has been estab-            Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex. App.--San
               lished, proof of this causal nexus             Antonio 2004, no pet.) (recognizing that when trial court
               is necessary to ascertain the                  awards lump sum damage award, appellants are limited
               amount of damages to which the                 to challenging damage award as a whole); Pentes De-
               plaintiff is entitled. This is true            sign, Inc. v. Perez, 840 S.W.2d 75, 80 (Tex. App.--1992,
               because the plaintiff is entitled to           writ denied).
               recover damages only for those
                                                                  1. Legal [*10]      Sufficiency
               injuries caused by the event made
               the basis of suit; that the defendant              A. Medical Expenses
               has defaulted does not give the
               plaintiff the right to recover for                  [HN5] A claim for medical expenses must be sup-
               damages which did not arise from               ported by evidence that such expenses were reasonably
               his cause of action.                           necessary for the plaintiff to incur as a result of her inju-
                                                              ries. Jackson, 77 S.W.3d at 902; see also Walker v.
                                                              Ricks, 101 S.W.3d 740, 746 (Tex. App.--Corpus Christi
        Morgan, 675 S.W.2d at 732                             2003, no pet.). A plaintiff may prove that medical ex-
                                                              penses are reasonable and necessary (1) by presenting
      [*8] Here, Cotton Patch contends that McCarty's         expert testimony on the issues of reasonableness and
testimony at the default judgment hearing did not estab-      necessity or (2) by presenting an affidavit prepared and
lish that his knee and lower back injuries were "caused       filed in compliance with section 18.001 of the Texas Civ-
by" or "a result of" the trip and fall. McCarty's petition    il Practice and Remedies Code. 3 Jackson, 77 S.W.3d at
states that he "suffered severe injuries as a proximate       902; Rodriguez- Narrea v. Ridinger, 19 S.W.3d 531,
result of [Cotton Patch's] negligence" and that "as a re-     532 (Tex. App.--Fort Worth 2000, no pet.). Proof of
sult of [McCarty's] injuries, [he] suffered . . . damages."   amounts charged or paid is not proof of reasonableness,
McCarty testified that he never had any "knee problems"       and evidence that medical expenses are reasonable and
before the accident and that he had only a "minor back        customary is no evidence that the medical expenses were
                                                                                                                   Page 6
                                              2006 Tex. App. LEXIS 1833, *


reasonably necessary. Jackson, 77 S.W.3d at 902; Ro-           P. 46.5; Formosa Plastics Corp. v. Presidio Eng'rs, 960
driguez-Narrea, 19 S.W.3d at 532.                              S.W.2d 41, 51, 41 Tex. Sup. Ct. J. 289 (Tex. 1998) (rec-
                                                               ognizing two means by which a remittitur may be ef-
       3    Section 18.001 provides in relevant part:          fected on appeal, including by suggestion by a court of
                                                               appeals in lieu of ordering a new trial). If we find that
                  (b) Unless a controverting affi-             part of a damages verdict lacks sufficient evidentiary
               davit is filed as provided by this              support, our proper course is to suggest a remittitur of
               section, an affidavit that the                  that part of the damages. Larson, 730 S.W.2d at 641;
               amount a person charged for a                   Pope, 711 S.W.2d at 624. Accordingly, we suggest a
               service was reasonable at the time              remittitur of $ 50,000, the amount the trial court awarded
               and place that the service was pro-             for past and future medical [*13] expenses.
               vided and that the service was
                                                                   B. Pain and Suffering
               necessary is sufficient evidence to
               support a finding of fact by judge                   [HN7] The process of awarding damages for amor-
               or jury that the amount charged                 phous, discretionary injuries such as pain and suffering
               was reasonable or that the service              or mental anguish is inherently difficult because the al-
               was necessary.                                  leged injury is a subjective, unliquidated, nonpecuniary
                                                               loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex.
                                                               App.--Texarkana 2002, no pet.). The presence or absence
       TEX. CIV. PRAC. & REM. CODE ANN. § 18.001               of pain, either physical or mental, is an inherently sub-
       (Vernon 1997).                                          jective question because the process is not readily sus-
                                                               ceptible to objective analysis. Dawson, 107 S.W.3d at
      [*11] Here, the trial court awarded McCarty $
                                                               751. Accordingly, the trier of fact is given broad discre-
50,000 for past and future medical expenses, but
                                                               tion when determining such damages. Sw. Tex. Coors,
McCarty neither offered an affidavit in compliance with
                                                               Inc. v. Morales, 948 S.W.2d 948, 951-52 (Tex. App.--San
civil practice and remedies code section 18.001 nor
                                                               Antonio 1997, no writ). In this case, McCarty testified
proved that his medical expenses were reasonable and
                                                               that he never had knee problems in the past and that he
necessary through expert testimony. The trial court ad-
                                                               had only one episode of back problems twenty-five years
mitted invoices indicating that McCarty had incurred $
                                                               ago. He testified that he fell on his right knee, causing
7,000 in medical expenses and an estimate from a medi-
                                                               injury to his knee and lower back. After the fall and a
cal office showing that surgery on McCarty's knee would
                                                               subsequent visit to the hospital and his family physician,
cost over $ 14,000, and McCarty testified that back sur-
                                                               an MRI of McCarty's knee indicated that he had a torn
gery would cost about $ 25,000. This evidence is not
                                                               meniscus, and his doctor recommended that he have
proof of the reasonableness of these charges. See Smith
                                                               surgery on his knee [*14] and back and indicated that
v. Sw. Bell Tel. Co., 101 S.W.3d 698, 703 (Tex.
                                                               physical therapy after surgery would be required.
App.--Fort Worth 2003, no pet.) (reasoning that medical
                                                               McCarty further testified that he has a needle-like pain
bill records do not establish that medical expenses listed
                                                               that extends from his lower back down both of his legs,
therein were reasonable). No evidence exists that
                                                               almost to his knees. At the conclusion of the default
McCarty's past medical expenses were reasonable or that
                                                               judgment hearing, McCarty requested that the trial court
the estimates for the suggested future surgeries were
                                                               award him $ 100,000 for his non-medical-expense dam-
reasonable. Accordingly, we sustain Cotton Patch's first
                                                               ages. Based on McCarty's undisputed testimony, we hold
issue to the extent it argues that the evidence is legally
                                                               that the evidence is legally sufficient to support the trial
insufficient to support the trial court's award for past and
                                                               court's award of some monetary damages for past and
future medical expenses.
                                                               future pain and suffering.
      The supreme court has instructed [*12] that [HN6]
                                                                   C. Mental Anguish
"when an appellate court sustains a no evidence point
after an uncontested hearing on unliquidated damages                [HN8] An award for mental anguish damages must
following a no-answer default judgment, the appropriate        be supported either by direct evidence of the nature, du-
disposition is a remand for a new trial on the issue of        ration, and severity of the plaintiff's mental anguish,
unliquidated damages." Heine, 835 S.W.2d at 86; see            thereby establishing a substantial interruption in the
also Lefton v. Griffith, 136 S.W.3d 271, 280 (Tex.             plaintiff's daily routine, or by circumstantial evidence of
App.--San Antonio 2004, no pet.) (remanding for new            a high degree of mental pain and distress that is greater
trial on economic damages and mental anguish damages,          than mere worry, anxiety, vexation, embarrassment, or
but affirming attorney fee award). But we may also sug-        anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444,
gest a voluntary remittitur of this amount. TEX. R. APP.       38 Tex. Sup. Ct. J. 828 (Tex. 1995). Damages for future
                                                                                                                   Page 7
                                              2006 Tex. App. LEXIS 1833, *


mental anguish are recoverable "if there is a reasonable       evidence concerning these elements of damage is so fac-
probability that they will be suffered in the future."         tually insufficient that it is against the great weight and
Lubbock County v. Strube, 953 S.W.2d 847, 857 [*15]            preponderance of the evidence as to be manifestly unjust.
(Tex. App.--Austin 1997, pet. denied) (op. on reh'g).          Pope, 711 S.W.2d at 624; Pentes, 840 S.W.2d at 80-81.
Here, McCarty testified that he has "AR stenosis" and          However, [HN10] once the existence of some pain,
"severe lung problems," that he is being treated for his       mental anguish, and impairment has been established,
lung condition, and that he is unable to have heart sur-       there is no objective way to measure the adequacy of the
gery because his oxygen level is "so bad." Because of          amount awarded as compensation, which is generally left
these prior conditions (unrelated to the accident at the       to the discretion of the fact-finder. Dawson, 107 S.W.3d
Cotton Patch restaurant), McCarty is unable to have the        at 751. The process of awarding damages for amorphous,
recommended surgery on his knee and back and resolve           discretionary injuries such as pain and suffering is in-
the pain (needle-like pain) and injuries associated there-     herently difficult because the alleged injury is a subjec-
with. McCarty testified that he would "definitely" have        tive, unliquidated, nonpecuniary loss. Id. The amounts
the surgeries on his knee and back if he were able to re-      awarded for such damages are necessarily speculative,
solve his other health problems because he "can't live         and each case must be judged on its own facts. Id.
like this." McCarty further testified that his injuries have
                                                                    Even though each case must be judged on its own
affected his state of mind because he is "taking so much
                                                               unique facts, it is proper to consider other approved
medication" and that "it has a lot to do with my home
                                                               awards in similar cases to determine if an award for pain
life." He continued, "They give me Celebrex, viagra and
                                                               and suffering [*18] is excessive. HCRA of Texas, Inc.
stuff like that to help me, but it doesn't work. So the
                                                               v. Johnston, 178 S.W.3d 861, 872 (Tex. App.--Fort Worth
urologist is trying to talk me into some sort of pump
                                                               2005, no pet.). In HCRA, this court determined that an
now, so . . . ." Based on McCarty's undisputed testimony,
                                                               award of $ 75,000 was not excessive to compensate a
which also indicated a reasonable probability of contin-
                                                               nursing home resident for physical pain and mental an-
ued mental anguish in the future, we hold that the evi-
                                                               guish suffered from decubitis ulcers and malnutrition. Id.
dence is legally sufficient to [*16] support the trial
                                                               In Sunbridge Healthcare Corp., the court held that an
court's award of some monetary damages for past and
                                                               award of one million dollars was not excessive to com-
future mental anguish.
                                                               pensate the plaintiff for physical pain and mental anguish
                                                               suffered from injuries sustained in falls. Sunbridge
D. Physical Impairment
                                                               Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex.
     [HN9] In order to recover for physical impairment,        App.--Texarkana 2005, no pet.). In Cresthaven Nursing
the plaintiff must show that the effect of the physical        Residence v. Freeman, the court held that an award of
impairment is substantial and extends beyond any pain,         one million dollars--remitted down from four million
suffering, mental anguish, lost wages, or earning capaci-      dollars--was not excessive to compensate the plaintiff for
ty. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d          physical pain and mental anguish suffered from two
757, 772, 46 Tex. Sup. Ct. J. 1133 (Tex. 2003). Damages        broken legs sustained in a fall. 134 S.W.3d 214,
for physical impairment are meant to compensate a              228-232 (Tex. App.--Amarillo 2003, no pet.). In Guzman
plaintiff for an impairment of the capacity to enjoy life.     v. Guajardo, the court held that an award of $ 600,000
Santa Rosa Med. Ctr. v. Robinson, 560 S.W.2d 751, 762          was not excessive to compensate a young boy who en-
(Tex. Civ. App.--San Antonio 1977, no writ). McCarty,          dured fifteen minutes of pain sustained in a car accident
who is seventy-six and retired, testified that he is no        before dying. [*19]          761 S.W.2d 506, 512 (Tex.
longer able to work on his pool, that his foot swells up       App.--Corpus Christi 1988, writ denied).
when he walks and "steps off a curb or something like
                                                                    In the instant case, McCarty's testimony, including
that," and that he has to use a walker to move about his
                                                               that he fell and injured his knee, that he has sharp pain in
home, which he never used before. Based on McCarty's
                                                               his lower back and legs, that his foot swells when he
undisputed testimony, we hold that the evidence is le-
                                                               walks, that he now uses a walker to move around his
gally sufficient to support the trial court's award of some
                                                               home, and that he is unable to have surgery in order to
monetary damages for past and future physical impair-
                                                               address his injuries resulting from the fall, constitutes
ment.
                                                               factually sufficient evidence to support the trial court's
                                                               award; the award of $ 100,000 is not excessive. Accord-
2. Factual Sufficiency
                                                               ingly, we overrule Cotton Patch's first issue to the extent
     Having determined that the evidence is legally suffi-     it argues that the evidence is legally and factually insuf-
cient [*17] to support the trial court's award for past        ficient to support the trial court's awards for past and
and future pain and suffering, mental anguish, and phys-       future pain and suffering, mental anguish, and physical
ical impairment, we must now determine whether the             impairment.
                                                                                                                    Page 8
                                               2006 Tex. App. LEXIS 1833, *


    V. Service of Citation                                      an incorrect final numeral in the registered agent's zip
                                                                code. The zip code in McCarty's petition correctly states
     In its second issue, Cotton Patch argues that error is
                                                                that the registered agent's zip code is "75063," the cita-
apparent on the face of the record because the return of
                                                                tion contains the correct zip code on the same page as the
citation contains an incorrect numeral which, conse-
                                                                officer's return, and Cotton Patch does not argue that it
quently, precluded the trial court from acquiring jurisdic-
                                                                was not served. At the conclusion of the default judg-
tion over it. [HN11] Strict compliance with the rules of
                                                                ment hearing, the trial court found that Cotton Patch had
service of citation must affirmatively appear in the rec-
                                                                been served with citation and with a copy of McCarty's
ord in order for a default judgment to withstand a direct
                                                                petition. Thus, because the return of citation complies
attack. Primate Constr., Inc. v. Silver, 884 S.W.2d 151,
                                                                with Rule 107, because Cotton Patch does not claim that
152, 37 Tex. Sup. Ct. J. 1216 (Tex. 1994). [*20] When
                                                                it did not receive service, and because the citation and
the attempted service of process is invalid, the trial court
                                                                return show that citation was actually served on Cotton
acquires no personal jurisdiction over the defendant, and
                                                                Patch's registered agent, we hold that the service [*22]
the default judgment is void. Westcliffe, Inc. v. Bear
                                                                was not defective so as to deprive the trial court of juris-
Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex.
                                                                diction over Cotton Patch. See Regalado v. State, 934
App.--Dallas 2003, no pet.). There are no presumptions
                                                                S.W.2d 852, 854 (Tex. App.--Corpus Christi 1996, no
in favor of valid issuance, service, and return of citation
                                                                writ) (reasoning that service of process will not be inval-
in the face of a direct attack on a default judgment, but
                                                                idated so long as the citation and return show with rea-
strict compliance does not require "obeisance to the
                                                                sonable certainty that citation was served on defendant).
minutest detail." Uvalde Country Club v. Martin Linen
                                                                We overrule Cotton Patch's second issue.
Supply Co., 690 S.W.2d 884, 885, 28 Tex. Sup. Ct. J. 423
(Tex. 1985); Herbert v. Greater Gulf Coast Enters., 915             VI. Conclusion
S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995,
                                                                     We affirm the trial court's award of $ 100,000 for
no writ).
                                                                past and future pain and suffering, physical impairment,
     The officer's return of citation states that service was   and mental anguish damages, but we reverse the trial
made upon Cotton Patch's registered agent at "4825 W.           court's award of $ 50,000 for past and future medical
Royal Ln, Irving, TX 75062" [Emphasis added.].                  expenses. We suggest a remittitur of $ 50,000, the
McCarty's petition and the citation, however, identify the      amount of the trial court's past and future medical ex-
registered agent's address as 4825 West Royal Lane, Ir-         penses award. If, within fifteen days of the date of this
ving, Texas "75063." [Emphasis added.]. Cotton Patch            opinion, McCarty files in this court a remittitur of $
argues that this numerical discrepancy occurring only on        50,000, then our subsequent judgment will reform the
the return of citation--the citation and the petition contain   trial court's judgment in accordance with the remittitur
the correct digit--constitutes [*21] error on the face of       and, as reformed, affirm that judgment. See TEX. R.
the record. We cannot agree. Rule 107 of the Texas Rules        APP. P. 46.5. Unless a voluntary remittitur is filed, we
of Civil Procedure requires the return to state when the        reverse the trial court's judgment and remand the case to
citation was served, to state the manner of service, to be      the trial court for a new trial on the issue [*23] of
signed by the officer officially or by the authorized per-      unliquidated damages.
son, and to be verified if the return is by an authorized
                                                                    SUE WALKER
person. TEX. R. CIV. P. 107. The return clearly complies
with the requirements of Rule 107, but simply contains              JUSTICE
|   | Caution
As of: April 7, 2015 5:35 PM EDT


                                  Daniel v. Ft. Worth & R. G. R. Co.
                                                Supreme Court of Texas
                                                March 9, 1903, Decided
                                                        No. 1162

Reporter
96 Tex. 327; 72 S.W. 578; 1903 Tex. LEXIS 139

J. L. Daniel v. Fort Worth & Rio Grande Railway                the owner appealed. The court reversed, holding that
Company                                                        the owner was not restricted to an instruction that
                                                               limited his recovery to damages for the reduction in
Prior History: [***1] Error to the Court of Civil Appeals      property value or discomfort. Although the jury found no
for the Second District, in an appeal from Erath County.       loss of property value, it could have found that the
                                                               owner was entitled to nuisance damages for the dust
Disposition: Reversed and remanded.                            and noise. The court relied on prior jurisprudence in
                                                               holding that the owner was entitled to an instruction on
Core Terms                                                     both types of damages. The action for reduction
                                                               damages was not the owner's exclusive remedy.

damages, coal, depreciation, discomfort, property value,
                                                               Outcome
railroad, noise, enjoyment, hoist
                                                               The court reversed the appellate court's decision. The
                                                               court remanded the owner's action for a new trial. The
Case Summary                                                   court ordered the railroad to pay appellate costs.

Procedural Posture
                                                               LexisNexis® Headnotes
Plaintiff in error, the owner of a residential property,
sought review of an order from the Court of Civil Appeals        Real Property Law > Encumbrances > Adjoining
for the Second District (Texas), which affirmed a trial          Landowners > General Overview
court's judgment in favor of defendant in error, a railroad,     Real Property Law > Torts > General Overview
on the owner's action for the depreciation to the value of
his property caused by the railroad's coal hoist and             Real Property Law > Torts > Nuisance > General Overview
noise and coal dust that interfered with the owner's             Real Property Law > ... > Nuisance > Remedies > General
enjoyment of his home.                                           Overview
                                                                 Real Property Law > ... > Nuisance > Types of Nuisances >
Overview                                                         Permanent Nuisances
The owner's house was located near the railroad's                Torts > ... > Types of Losses > Pain & Suffering > General
tracks. The railroad constructed a platform and the coal         Overview
hoist adjacent to the tracks and the owner's property.           Torts > ... > Types of Damages > Property Damages >
The owner filed an action for damages to his property             General Overview
value and his family's discomfort, asserting that the dust
from the hoist entered his house and that noise from the       HN1 If a structure, permanent in character, is a nuisance
hoist kept his family awake at night. The trial court          from which injury results to adjacent property, and by
instructed the jury on the reduction of property value but     which nuisance the health of the occupants is impaired
refused the owner's instruction on damages for                 or the comfortable enjoyment of it is destroyed, the
discomfort. The jury delivered a verdict for the railroad,     injured party is not limited to compensation for the
and the owner appealed the refusal of his instruction on       impairment of the value of the property. To the contrary,
discomfort damages. The appellate court affirmed, and          it is a rule of Texas law that full compensation may be
                         96 Tex. 327, *327; 72 S.W. 578, **578; 1903 Tex. LEXIS 139, ***1



awarded in one suit to the owner for all damages              Eq., 316; Illinois Cen. Railway Co. v. Grabill, 50 Ill., 241;
sustained from the same cause, and a party damaged            Hockaday v. Wortham, 22 Texas Civ. App., 419.
in the value of his property and in his health or the
enjoyment of the property, should be denied the right to      West, Chapman & West, for appellee. -- The court
recover for either or both wrongs. The existence of a         charged the jury the proper measure of damages, and
permanent nuisance may cause injury by destroying             did not err in refusing appellant's first special request.
the comfort of a home and not cause loss in the market        Hockaday v. Wortham, 22 Texas Civ. App., 419;
value of the property, or it may cause injury to both,        Gainesville, H. & W. Railway Co. v. Hall, 78 Texas, 169;
hence adequate compensation must embrace all the              Rosenthal v. T. B. & H. Railway Co., 79 Texas, 325; City
damage done and no more.                                      of San Antonio v. Mackey, 36 S. W. Rep., 760; Denison
                                                              & P. S. Railway Co. v. O'Malley, 18 Texas Civ. App., 200.
Headnotes/Syllabus
                                                              Judges: Brown, Associate Justice.

Headnotes
                                                              Opinion by: BROWN
Railway -- Nuisance -- Coal Hoist Near Residence --
Damages.                                                      Opinion
The damages recoverable for the creation of a nuisance          [*328] [**579] The Court of Civil Appeals made no
near plaintiff's residence (the dust, noise, etc., from the   findings of fact in this case, but we have referred to the
construction of a coal hoist and the supplying locomotive     record from which we make the following statement:
engines with coal) are not limited to depreciation in the
market value of his property, but may include, along          Defendant in error was operating a railroad through
with such depreciation, compensation for the personal          [***3] the town of Stephenville, in Erath County, and J.
annoyance and discomfort suffered by plaintiff and his        T. Daniel purchased a lot in said town, about 250 feet
wife in the use of their home.                                west of the railroad track, on which he had resided for
                                                              some years when the defendant in error built a platform,
Railway -- Cases Distinguished.                               300 feet long, between the main track and plaintiff's
                                                              residence, between the two side tracks which were on
Rosenthal v. Railway Co., 79 Texas, 325; Baugh v.
                                                              the west side of the main track. The railroad company
Railway Co., 80 Texas, 56; Gainesville, H. & W. Railway
                                                              also erected near the platform a hoist, about twentyfive
Co. v. Hall, 78 Texas, 169, and Denison & P. S. Railway
                                                              feet high, by which the coal was raised from the platform
Co. v. O'Malley, 18 Texas Civ. App., 200, distinguished
                                                              in iron buckets and dumped into the tenders of engines.
from the present case.
                                                              There was evidence which tended to prove, that the
                                                              coal dust from coal thus placed in the tender was
Syllabus                                                      carried by the wind to and into plaintiff's residence and
                                                              settled upon his furniture, the walls, and upon the
Daniel sued the railway company and appealed from a           outside of the house so as to produce discomfort to the
judgment for defendant. On its affirmance he obtained         plaintiff and his family. The evidence also tended to
writ of error.                                                show that the noise caused by operating the hoist and
                                                              buckets, and the noise caused by the engines while
Counsel: J. W. Parker, W. T. Carlton, and J. B. Keith,        taking coal, prevented the plaintiff and his wife from
for plaintiff in error. -- In an action by one against a      sleeping at night and disturbed and annoyed them in
railroad for maintaining a nuisance near [***2] his           their enjoyment of their home.
residence, the damages are not limited to the                 Plaintiff brought this suit against the railroad company
depreciation of the property, but may include damages         to recover the damages occasioned [***4] to him by the
for discomfort to the inhabitants of such house.              depreciation of his property on account of the facts
Baltimore & P. Railway Co. v. Fifth Baptist Church, 108       before stated, which were alleged in the petition with
U.S., 317; Lahr v. Metropolitan El. Railway Co., 104 N.       sufficient certainty and particularity, and the petition
Y., 268; Fifth National Bank v. N. Y. El. Railway Co., 118    also contained the following allegation: "That by reason
U.S., 608; Pennsylvania Railway Co. v. Angel, 41 N. J.        of the things hereinbefore alleged, plaintiff and his wife
                                                                                                             Page 2 of 4
                          96 Tex. 327, *328; 72 S.W. 578, **579; 1903 Tex. LEXIS 139, ***4


have experienced and have been subjected to                     defendant's shops. It might then, perhaps, have brought
continually, both day and night, great physical and             in the market as great a price to be used for some other
mental discomfort, and been vexed, harassed and                 purpose. But, as the court below very properly said to
annoyed to a degree almost insupportable, to their              the jury, the congregation had the same right to the
great and irreparable injury, and have been thereby             comfortable enjoyment of its house for church purposes
damaged to the further sum of $ 500." The court charged         that a private gentleman has to the comfortable
the jury upon the right of the plaintiff to recover for the     enjoyment of his own house, and it is the discomfort and
depreciation in the value of his property, but refused to       annoyance in its use for those purposes which is the
submit to the jury the following special charge by the          primary consideration in allowing damages. As with a
plaintiff: "If you believe from a preponderance of the          blow on the face, there may be no arithmetical rule for
evidence in this case that the plaintiff J. T. Daniel and his   the estimate of damages. There is, however, an injury,
wife have been personally annoyed and discomforted              the extent of which the jury may measure." [***7] This
in the use and enjoyment of their home by smoke or              clear statement of the proposition renders argument in
coal dust, or by vibrating, grating or disagreeable noises      its application to this case unnecessary. We have found
coming from defendant's coal yards and coal hoist into          but one case that holds the contrary doctrine, --
or on the house and premises of plaintiff, then you will        Kempner and Wife v. Louisville, 14 Bush, 87, -- in which
find for plaintiff and award to him by [***5] your verdict      the Court of Appeals of Kentucky incidentally stated that
such damages as in your judgment will reasonably and            the plaintiffs in the case were not entitled to recover "for
fairly compensate him for such annoyance or                     loss of time on the part of the occupants on account of
discomfiture suffered by himself and wife, not to exceed        sickness caused by the stagnant water, etc;" but the
the amount sued for for annoyance." There was a                 question does not seem to have elicited discussion
verdict and a judgment for the defendant, which was             from that court and no reason is assigned nor authority
affirmed by the Court of Civil Appeals.                         cited in support of the decision.

The trial court committed error in refusing the special         In support of its opinion, the Court of Civil [**580]
charge requested by the plaintiff. If the plaintiff was         Appeals cites: Rosenthal v. Railway Co., 79 Texas, 325;
entitled to recover upon the evidence the right of              Baugh v. Railway Co., 80 Texas, 56; Railway Co. v.
recovery is not limited to the depreciation in [*329] the       Hall., 78 Texas, 169, and Railway Co. v. O'Malley, 18
value of the property, but he may recover damages for           Texas Civ. App., 200.
the discomfort of himself and family in the use of the
home caused by the erection and use of the coal hoists.         In Rosenthal v. Railway Company, the right of recovery
Baltimore & P. Railway Co. v. Fifth Baptist Church, 108         for personal inconvenience on account of the noises
U.S., 317; Randolph v. Bloomfield, 77 Iowa, 52; Illinois        complained of was not in issue, but the plaintiff claimed
C. Railway Co. v. Grabill, 50 Ill., 241; Pierce v. Wagner,      damages to the property because of faulty construction
29 Minn., 355; Brown v. Chicago & A. Railway Co., 80            of the roadbed and on account of noise, smoke, etc.,
Mo., 457; Pennsylvania Railway Co. v. Angel, 41 N. J.           and the court simply held that under the facts of that
Eq., 316.                                                       case the depreciation in the value [***8] of the property
                                                                was the safest measure of damages.
In Baltimore & Potomac Railway Co. v. Fifth Baptist
Church, above cited, the Supreme Court of the United            In Baugh v. Railway Company, the plaintiff alleged
States expresses the rule in this explicit language: "The       depreciation in [*330] the value of his property, but in
instruction of the court as to the estimate [***6] of           support of his claim set up matters of a character which
damages was correct. Mere depreciation of the property          would have sustained an action for personal discomfort,
was not the only element for consideration. That might,         showing that the nuisance was temporary, and the court
indeed, be entirely disregarded. The plaintiff was entitled     held that under such allegations the plaintiff could not
to recover because of the inconvenience and discomfort          recover for loss in the value of the property.
caused to the congregation assembled, thus necessarily
tending to destroy the use of the building for the              In Railway Company v. Hall, the action was for
purposes for which it was erected and dedicated. The            depreciation in the value of property arising from smoke,
property might not be depreciated in its salable or             noise, etc. The railroad was constructed near to but not
market value, if the building had been entirely closed for      on the land. The question arose under art. 1, sec. 17, of
those purposes by the noise, smoke, and odors of the            the Constitution, it being claimed by the railroad
                                                                                                                Page 3 of 4
                        96 Tex. 327, *330; 72 S.W. 578, **580; 1903 Tex. LEXIS 139, ***8



company, that the damage to the property could not be       sustained from the same cause, and we see no reason
recovered, there being no taking of it, but our Supreme     why a party damaged in the value of his property and in
Court held that it could be recovered.                      his health or the enjoyment of the property, should be
                                                            denied the right to recover for either or both wrongs.
Railway Company v. O'Malley was a suit for damages
                                                            The existence of a permanent nuisance may cause
on account of the location of stock pens near the home
                                                            injury by destroying the comfort of a home and not
of plaintiff, and claim was made for the difference
                                                            cause loss in the market value of the property, or it may
between the value of the property before and after the
                                                            cause injury to both, hence adequate compensation
construction of the pens, upon the allegation that the
                                                            must embrace all the damage done and no more.
pens rendered the property uncomfortable for the
occupants as a home. [***9] There was no claim of
damages for personal discomfort, and the court held         The pleadings and evidence in this case do not present
that under the facts the damages to the property were       any question of excuse for the railroad [***10] company
recoverable.                                                upon the ground that it was reasonably necessary that
                                                            the coal hoist should be located at that particular place,
No case decided by this court justifies the conclusion      we therefore do not pass upon that question.
that, HN1 if a structure, permanent in character, is a
nuisance from which injury results to adjacent property,    It is ordered that the judgments of the District Court and
and by which nuisance the health of the occupants is        of the Court of Civil Appeals be reversed and that this
impaired or the comfortable enjoyment of it is destroyed,   cause be remanded, and that the defendant in error pay
the injured party is limited to compensation for the        the costs of the Court of Civil Appeals and of this court.
impairment of the value of the property. To the contrary,
it is a rule of our law that full compensation may be       Reversed and remanded.
awarded in one suit to the owner for all damages




                                                                                                          Page 4 of 4
                                                                                                                  Page 1




Caution
As of: Mar 30, 2015

                      M. V. DAVIS V. McCRAY REFRIGERATOR SALES CORPORATION.

                                                        No. 7801

                                           SUPREME COURT OF TEXAS

                                 136 Tex. 296; 150 S.W.2d 377; 1941 Tex. LEXIS 334


                                                      April 9, 1941

SUBSEQUENT HISTORY:                   [***1]    Rehearing      As the judgment does not dispose of defendant's cross
Overruled May 7, 1941                                          action or any of the affirmative prayers of the defendant,
                                                               it is not a final judgment and will not support an appeal.
PRIOR HISTORY:          Error to the Court of Civil Ap-        Chambers v. Jones, 101 S.W. (2d) 936; Clary Lbr. Co. v.
peals for the Second District, in an appeal from Tarrant       Patterson, 28 S.W. (2d) 825; Kosse Natl. Bank v. Derden,
County.                                                        36 S.W. (2d) 295.
     Suit by the McCray Refrigerator Sales Corporation
                                                               Greathouse & Swanger, of Fort worth, for defendant in
against M. V. Davis upon a note and a contract for the
                                                               error.
purchase of a refrigerator from the plaintiff. Defendant
filed a plea in abatement upon the grounds that plaintiff
                                                               In sustaining a plea in abatement that plaintiff was a for-
was a foreign corporation and had no permit to operate in
                                                               eign corporation and did not have a permit to do business
the State. He also filed a cross action asking that the
                                                               in Texas was a judgment dismissing the cause and not
debt and lien be cancelled, for a return of the money paid
                                                               one that plaintiff take nothing, and the court having tried
on said refrigerator, and for damages for merchandise
                                                               the cause on its merits, the verdict of the jury entitled
lost because of improper refrigeration. After hearing the
                                                               plaintiff to its debt and foreclosure. S.W. Smyth Co. v.
plea of privilege and the merits of the case together, the
                                                               Fort Worth Glass & Sand Co., 142 S.W. 1157; Ragness
court sustained the plea of privilege and dismissed the
                                                               v. Oliver, 26 S.W. (2d) 357; W. W. Kimball Co. v. Par-
suit, without taking any action on the defendant's cross
                                                               sons, 49 S.W. (2d) 821.
action. The Court of Civil Appeals reversed this judg-
ment and rendered judgment for the refrigerator compa-
                                                               OPINION BY: ALEXANDER
ny for the balance of the note with interest and attorney's
fee and for foreclosure of chattel mortgage, 140 S.W.
                                                               OPINION
(2d) 477, and defendant has brought error to the Supreme
Court.                                                            [**377]   [*297] MR. CHIEF JUSTICE AL-
                                                               EXANDER delivered the opinion of the Court.
    Judgment of the Court of Civil Appeals is reversed
and the appeal is dismissed.                                        Plaintiff sued defendant for the balance of the pur-
                                                               chase price of a refrigerator and to foreclose a lien
                                                               thereon. The defendant filed a plea in abatement to
COUNSEL: Graves & Collins, [***2] of Fort Worth,               plaintiff's suit, on the ground that plaintiff [***3] was a
for plaintiff in error.                                        foreign corporation without a permit to do business in
                                                               Texas. The defendant also filed a cross-action to cancel
                                                                                                                     Page 2
                                           136 Tex. 296, *; 150 S.W.2d 377, **;
                                                1941 Tex. LEXIS 334, ***

plaintiff's debt and lien, and for judgment for the sum of      Bank v. Derden, 36 S.W. (2d) 295; Rouser v. Hogue, 189
$469.62, representing that part of the purchase price of        S.W. 349; Nunez v. McElroy, 184 S.W. 531; Partridge v.
the refrigerator previously paid by him, and the sum of         Wooton, 137 S.W. 412; Brown v. Wofford, 167 S.W. 764;
$59.78 damages for merchandise lost for lack of proper          Nalle v. Harrell, 118 Texas 149, 12 S.W. (2d) 550.
refrigeration. The trial judge announced that he would
                                                                     The appeal in this case was from an order entered on
hear the plea in abatement and the merits of the case to-
                                                                July 26, 1939. We find among the papers in the case a
gether. After the jury had returned its verdict the court
                                                                supplemental transcript in which it is recited that on No-
sustained the plea in abatement and dismissed plaintiff's
                                                                vember 6, 1939, at a subsequent term of court, the court
suit. The judgment in no wise referred to or attempted
                                                                entered a nunc pro tunc order in which the previous
to dispose of defendant's cross-action. Plaintiff appealed.
                                                                judgment of date July 26, 1939, was withdrawn and a
     It is a well settled rule in Texas, with certain statu-    new judgment entered dismissing plaintiff's suit and
tory exceptions not here involved, that an appeal will lie      denying defendant any recovery on his cross-action.
only from a final judgment, and that a judgment in order        However, the appeal in this case was not from the nunc
to be final must dispose of all parties and of all issues       pro tunc order [***6] of date November 6, 1939. The
involved in the suit. [**378] 3 Tex. Jur. 114. It is            appeal bond was filed on August 17, 1939, long before
not essential that the judgment in express [*298] terms         the entry of the nunc pro [*299] tunc order, and recites
specifically dispose of each issue. That it does dispose        that the appeal was taken from the judgment of date July
of a particular issue may be inferred from other provi-         26, 1939.
sions thereof, provided such an inference follows [***4]
                                                                     It is well settled in this State that when a judgment is
as a necessary implication. Trammell v. Rosen, 106 Tex-
                                                                pronounced at one term and not entered of record at that
as 132, 157 S.W. 1161. The judgment in this case does
                                                                term but is entered nunc pro tunc at the succeeding term,
not expressly dispose of the defendant's cross-action, nor
                                                                the right of appeal from such nunc pro tunc order dates
does it do so by necessary implication. The mere dismis-
                                                                from the entry thereof. Peurifoy v. Wiebusch, 125 Texas
sal of plaintiff's suit did not have the effect of dismissing
                                                                207, 82 S.W. (2d), p. 624, par. 1, and authorities there
or otherwise disposing of the defendant's cross-action.
                                                                cited; Partridge v. Wooton, 137 S.W. 412, 414. It is also
Barrier v. Lowery, 118 Texas 227, 13 S.W. (2d) 688, par.
                                                                well settled that an appeal bond field at a previous term
1; Texas & P.R. Co. v. Fort Worth Street Ry. co., 75
                                                                of court, and prior to the entry of the nunc pro tunc order
Texas 82, 12 S.W. 977; Jasper v. Mays Manufacturing
                                                                at a subsequent term of court, is premature and ineffec-
Co., 139 S.W. (2d) 895; Jungbecker v. Huber, 101 Texas
                                                                tive to perfect an appeal from such nunc pro tunc order.
148, 105 S.W. 487; 15 Tex. Jur. 291. This is so because
                                                                Cooper v. Carter, 233 S.W. 1020; Burnette v. Miracle,
if the court had intended to merely sustain the plea in
                                                                295 S.W. 214; Gilmore v. Ladell, 34 S.W. (2d) 919; Stin-
abatement and dismiss plaintiff's suit, and had intended
                                                                nett v. Dudley, 277 S.W. 801; Shields v. Amicable Life
to retain the defendant's cross-action for further consid-
                                                                Insurance Co., 287 S.W. 293; Panhandle Construction
eration, it would have entered the very judgment that was
                                                                Co. v. Lindsey, 123 Texas 613, 72 S.W. (2d) 1068; Texas
entered in this case. The mere failure of the judgment to
                                                                & N.O.R. Co. v. Texas Tram & Lumber Co., 110 S.W., p.
refer to defendant's cross-action was not sufficient in
                                                                140, par. 1. Consequently it [***7] cannot be said that
itself to raise an infrerence that it was thereby intended to
                                                                the appeal in this case was from the nunc pro tunc order
dispose of the cross-action. In other words, where the
                                                                of date November 6th, in which the defendant's
court dismisses plaintiff's suit, and does not refer to or
                                                                cross-action was for the first time disposed of.
mention the defendant's cross-action, the judgment does
not dispose [***5] of the cross-action expressly or by               Since the judgment sought to be appealed from did
implication, and is therefore not such a final judgment as      not dispose of the defendant's cross-action, and was
will authorize an appeal therefrom. 3 Tex. Jur., p. 121,        therefore not a final judgment, the Court of Civil Ap-
sec. 58; 4 C.J.S., p. 190, sec. 95; Southern Trading Co. of     peals acquired no jurisdiction of the appeal.
Texas v. Feldman (Com. App.), 259 S.W., p. 566, par. 2;
                                                                    The judgment of the Court of Civil Appeals is re-
American Road-Mach. Co. v. City of Crockett, 49 S.W.
251; Anderson, Evans & Evans v. Smith, 167 S.W. 765;            versed, and the appeal is dismissed.
Minnock v. Garrison, 144 S.W. (2d) 328; National Radio              Opinion delivered April 9, 1941.
Exchange v. Calhoun, 52 S.W. (2d) 946; Kosse National
|   | Neutral
As of: April 7, 2015 5:38 PM EDT


                                                 Day v. Tripp
                                 Court of Appeals of Texas, Third District, Austin
                                                July 29, 1999, Filed
                                               NO. 03-97-00480-CV

Reporter
1999 Tex. App. LEXIS 5550; 1999 WL 546869

Jim and Delores Day, Appellants v. Mary Tripp, Fred         Because appellants were operating a rifle range,
Jones, Lloyd Adams, David Ward and Catherine Ward,          appellee neighbors brought suit for creation of a private
Appellees                                                   nuisance, trespass, and invasion of privacy. A jury
                                                            awarded appellees damages, and the trial court denied
Notice: [*1] PURSUANT TO THE TEXAS RULES OF                 remittitur. On appeal by appellants and one cross-point
APPELLATE       PROCEDURE,     UNPUBLISHED                  by appellees, the court affirmed with respect to the
OPINIONS SHALL NOT BE CITED AS AUTHORITY                    damages for operating a private nuisance because the
BY COUNSEL OR BY A COURT.                                   charge submitted to the jury included personal injury as
                                                            well as property damage. The court reversed with
Subsequent History: Motion to Increase Depoist in           respect to the trespass damages because there was no
Lieu of Supersedeas Bond Dismissed as Moot March 9,         evidence conforming to the proper measure of these
2000.                                                       damages. The court reversed with respect to the
                                                            damage award for the invasion of privacy claim to avoid
Prior History: FROM THE DISTRICT COURT OF
                                                            double recovery with the private nuisance award. The
TRAVIS COUNTY, 167TH JUDICIAL DISTRICT. NO.
                                                            trial court did not abuse its discretion in denying remittitur
94-00122, HONORABLE SUZANNE COVINGTON,
                                                            to appellants or in denying appellees a permanent
JUDGE PRESIDING.
                                                            injunction. Appellees were not entitled to an injunction
                                                            merely because the rifle range amounted to a nuisance.
Disposition: Affirmed in Part; Reversed and Rendered
                                                            Appellees' claims for nuisance and invasion of privacy
in Part.
                                                            were not barred by Tex. Gov't Code Ann. § 250.001(c),
                                                            because the bar was predicated on the existence of a
Core Terms                                                  local government ordinance, not on the non-existence
                                                            of an ordinance.
appellees, Days, damages, nuisance, trespass,
invasion, trial court, privacy, discomfort, measure of      Outcome
damages, cause of action, market value, annoyance,
shooting range, noise, permanent injunction, injury to      The court reversed the trial court's judgment insofar as
property, use and enjoyment, personal injury, property      it awarded damages for trespass and invasion of privacy
damage, no evidence, properties, complain, amounts          because appellees presented no evidence of the
                                                            measure of damages for trespass and the nuisance
Case Summary                                                damages encompassed the invasion of privacy
                                                            damages. The court overruled appellees' cross-point
                                                            because the trial court did not abuse its discretion by
Procedural Posture
                                                            refusing their application for a permanent injunction.
Appellants sought review of a judgment from the District
Court of Travis County, 167th Judicial District (Texas),    LexisNexis® Headnotes
in favor of appellees in appellees' action for creating a
private nuisance, trespass, and invasion of privacy.
                                                               Real Property Law > Torts > Nuisance > General Overview
Appellees brought a cross-point.
                                                               Real Property Law > ... > Nuisance > Types of Nuisances >
Overview                                                       Private Nuisances
                                            1999 Tex. App. LEXIS 5550, *1


HN2 A private nuisance is a nontrespassory invasion of          Real Property Law > ... > Remedies > Damages >
another's interest in the private use or enjoyment of           Measurement of Damages
land. If the invasion is unintentional, it is actionable if     Real Property Law > ... > Damages > Types of Damages >
caused by conduct that is negligent or reckless, or             Compensatory Damages
results from other conduct that is culpable because
                                                                Torts > ... > Types of Damages > Property Damages >
abnormal and out of place in its surroundings. If the
                                                                 Measurements
invasion is intentional, liability depends upon whether
the invasion is unreasonable. An invasion is intentional      HN3 In a nuisance action, a plaintiff may allege, prove,
if (1) the actor acts for the purpose of causing it, or (2)   and recover damages for a personal injury caused by
the actor knows that it is resulting or is substantially      the nuisance, such as discomfort, annoyance, and injury
certain to result from his conduct.                           to health. The plaintiff may recover damages for
                                                              discomfort and annoyance even absent depreciation of
  Civil Procedure > Judgments > Pretrial Judgments >          the real property caused by the nuisance. The measure
  General Overview
                                                              of damages for discomfort and annoyance is the amount
  Real Property Law > Torts > General Overview                of money necessary to provide the plaintiff reasonable
                                                              and fair compensation for such personal injury.
  Real Property Law > Torts > Nuisance > General Overview
  Real Property Law > ... > Remedies > Damages > General        Civil Procedure > ... > Jury Trials > Jury Instructions >
  Overview                                                      General Overview
  Real Property Law > ... > Remedies > Damages >                Torts > Remedies > Damages > General Overview
  Measurement of Damages
  Real Property Law > ... > Nuisance > Types of Nuisances >
                                                              HN4 Concerning damages, the trial court is authorized
  Private Nuisances                                           to submit to the jury only those elements of damages for
                                                              which evidence was introduced.
  Torts > Remedies > Damages > General Overview
  Torts > ... > Types of Damages > Property Damages >           Real Property Law > Torts > Trespass to Real Property
   Measurements
                                                                Torts > Premises & Property Liability > Trespass to Real
                                                                Property > General Overview
HN1 On a cause of action for private nuisance, a
plaintiff is entitled to recover damages, if proved, for        Torts > Premises & Property Liability > Trespass to Real
either or both of two kinds of injury. The first is a           Property > Elements
plaintiff's right to recover damages for any interference
                                                              HN5 The elements of a cause of action for trespass are:
with the owner's use and enjoyment of the property
                                                              (1) an intentional (2) entry on land (3) in the possession
caused by the nuisance. In legal contemplation, this
                                                              of another.
amounts to an injury to the plaintiff's property. The
attendant measure of damages is the depreciation, if
                                                                Real Property Law > Torts > General Overview
any, in the market value of the plaintiff's property caused
by the nuisance. This is determined ordinarily by the           Real Property Law > Torts > Trespass to Real Property
difference in market values immediately before and              Torts > Remedies > Damages > General Overview
immediately after the injury occurred, if the injury is
                                                                Torts > ... > Compensatory Damages > Types of Losses >
permanent, considering any use that may be made of               Permanent Injuries
the land. Such an injury to the plaintiff's use and
enjoyment of the property is not itself a personal injury.      Torts > Premises & Property Liability > Trespass to Real
                                                                Property > General Overview
  Real Property Law > Torts > General Overview                  Torts > ... > Trespass to Real Property > Remedies >
                                                                 General Overview
  Real Property Law > Torts > Nuisance > General Overview
                                                                Torts > ... > Remedies > Damages > General Overview
  Real Property Law > Torts > Nuisance > Elements
                                                                Torts > ... > Remedies > Damages > Measurement of
  Real Property Law > ... > Nuisance > Remedies > General
                                                                Damages
  Overview
  Real Property Law > ... > Remedies > Damages > General      HN6 The damages recoverable for trespass are various,
  Overview                                                    but where the suit is for permanent injury to land, the
                                                                                                          Page 2 of 8
                                                1999 Tex. App. LEXIS 5550, *1



measure of damages is the difference in market value                adjacent to tracts of land owned by appellees and upon
of the land immediately before and immediately after                which they have built homes. Contending that daily
the trespass.                                                       gunfire on the range shook the walls and windows of
                                                                    their homes, that hundreds of bullets from the range
    Governments > Local Governments > Claims By & Against           entered their properties, and that they were otherwise
    Real Property Law > Torts > Nuisance > General Overview         affected adversely by the Days' operation of the range,
                                                                    appellees sued the Days on various causes of action
HN7 Tex. Gov't Code Ann. § 250.001(c) declares as                   discussed below. Following a jury trial, appellees
follows: A person may not bring a nuisance or similar               recovered judgment on the verdict in the following
cause of action against a sport shooting range based on             amounts and on the actions indicated:
noise if the sport shooting range is in compliance with all
applicable municipal and county ordinances, orders,                 Appellee Nuisance Trespass Invasion of Totals
and rules regulating noise.
                                                                    Privacy
    Real Property Law > Torts > Nuisance > General Overview         Fred Jones $ 25,000 $ 500 $ 500 $ 26,000
HN8 By its express terms, the statutory bar of Tex. Gov't           Lloyd Adams 30,000 -0- 1,000 31,000
Code Ann. § 250.001(c) is predicated on the applicability
and, therefore, the existence of a local-government                 Mary Tripp 10,000 -0- -0- 10,000
ordinance, order, or rule, rather than the non-existence
of such an enactment.                                               David and Catherine

Judges: Before Chief Justice Aboussie, Justices Kidd                Ward 16,000 4,000 500 20,500
and Powers *
                                                                    Totals $ 81,000 $ 4,500 $ 2,000 $ 87,500
Opinion by: MARILYN ABOUSSIE
                                                                    The Days appeal on the issues discussed hereafter.

Opinion                                                             NUISANCE
Jim Day and Delores Day appeal from a judgment
                                                                    The appellees alleged and recovered judgment on their
recovered against them by appellees Mary Tripp, Fred
                                                                    pleadings that the Days' operation of the range
Jones, Lloyd Adams, 1 David Ward, and Catherine
                                                                    amounted to a private nuisance. 2 HN1 On that cause of
Ward. We will reverse the judgment in part, render
                                                                    action, appellees were entitled to recover damages,
judgment in the part reversed, and affirm the balance of
                                                                     [*3] if proved, for either or both of two kinds of injury.
the judgment.
                                                                    The first is a plaintiff's right to recover damages for any
THE CONTROVERSY                                                     interference with the owner's use and enjoyment of the
                                                                    property caused by the nuisance. In legal contemplation,
[*2] The Days have, since December 1993, owned and                  this amounts to an injury to the plaintiff's property. The
operated a rifle and pistol range on seventeen acres                attendant measure of damages is the depreciation, if

*
   Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. §
74.003(b) (West 1998).
1
    Lloyd Adams died after the appeal was perfected. We will "adjudicate the appeal as if all parties were alive." Tex. R. App.
P. 7.1(a).
2
      HN2 A private nuisance is a nontrespassory invasion of another's interest in the private use or enjoyment of land. If the
invasion is unintentional, it is actionable if caused by conduct that is negligent or reckless, or results from other conduct that is
culpable because abnormal and out of place in its surroundings. If the invasion is intentional, liability depends upon whether the
invasion is unreasonable. An invasion is intentional if (1) the actor acts for the purpose of causing it, or (2) the actor knows that
it is resulting or is substantially certain to result from his conduct. See City of Princeton v. Abbott, 792 S.W.2d 161, 166 (Tex.
App.--Dallas 1990, writ denied) (op. on reh'g); City of Texarkana v. Taylor, 490 S.W.2d 191, 194 (Tex. Civ. App.--Texarkana
1972, writ ref'd n.r.e.); Restatement (Second) of Torts § 825 (1965).
                                                                                                                        Page 3 of 8
                                             1999 Tex. App. LEXIS 5550, *3



any, in the market value of the plaintiff's property caused    market values immediately before and after the injury
by the nuisance. This is determined ordinarily by the          caused by the nuisance; and because the evidence is
difference in market values immediately before and             legally or factually insufficient to establish such market
immediately after the injury occurred, if the injury is        values, the nuisance damages found in response to
permanent, considering any use that may be made of             Jury Question Number Two must be set aside. It appears
the land. Such an injury to the plaintiff's use and            to be undisputed that such market values are not shown
enjoyment of the property is not itself a "personal injury."   in the evidence. We disagree, however, with the Days'
See Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984);          predicate that Jury Question Number Two [*6] submitted
Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978); City       only the issue of property damage.
of Abilene v. Downs, 367 S.W.2d 153, 160-61 (Tex.
1963); Vestal v. Gulf Oil Corp., 149 Tex. 487, 235             Jury Question Number Two may be understood only in
S.W.2d 440, 441-42 (Tex. 1951).                                light of Jury Question Number One. The jury was asked
                                                               and responded as follows regarding the two questions:
[*4] HN3
                                                               JURY QUESTION NO. 1
In the same nuisance action, however, the plaintiff may
also allege, prove, and recover damages for a personal         Do you find that the shooting range is a "nuisance?"
injury caused by the nuisance, such as discomfort,
annoyance, and injury to health. See, e.g., Vann v.            Answer: Yes or No. [The jury answered "yes."]
Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 563
                                                               You are instructed that a "Nuisance" is a condition that
(Tex. 1936) ("impairment of health and bodily
                                                               substantially interferes with the use and enjoyment of
discomfort"); Daniel v. Fort Worth & Rio Grande Ry. Co.,
                                                               land by causing unreasonable discomfort or annoyance
96 Tex. 327, 72 S.W. 578, 579 (Tex. 1903) ("personally
                                                               to persons of ordinary sensibilities attempting to use
annoyed and discomforted"); Cain v. Rust Indus.
                                                               and enjoy it.
Cleaning Servs., 969 S.W.2d 464, 470 (Tex.
App.--Texarkana 1998, pet. denied) ("annoyance and             ***
discomfiture"); Lacy Feed Co. v. Parrish, 517 S.W.2d
845, 850 (Tex. Civ. App.--Waco 1974, writ ref'd n.r.e.)        JURY QUESTION NO. 2
("offensive, discomforting and annoying to persons of
ordinary sensibilities"). See generally Batemen,               What sum of money, if paid now in cash, . . . would fairly
Annotation, Nuisance As Entitling Owner Occupant Of            and reasonably compensate the following for his or her
Real Estate To Recover Damages For Personal                    losses, if any, resulting from the nuisance from the date
Inconvenience, Discomfort, Annoyance, Anguish, Or              of December 17, 1993 to present:
Sickness, Distinct From Or In Addition To, Damages for
Depreciation In Value Of Property Or Its Use, 25 A.L.R.        Fred Jones [$ 25,000]
5th 568 (1994). The plaintiff may recover damages for
                                                               Lloyd Adams [$ 30,000]
discomfort and annoyance [*5]             even absent
depreciation of the real property caused by the                Mary Tripp [$ 10,000]
nuisance. See Vann, 90 S.W.2d at 563; Chandler v. City
of Olney, 126 Tex. 230, 87 S.W.2d 250, 251 (Tex.               David Ward and Catherine Ward [$ 16,000]
1935); Daniel, 72 S.W. at 579. The measure of damages
for discomfort and annoyance is the amount of money            You are instructed that damage to the property of
necessary to provide the plaintiff reasonable and fair         Plaintiffs includes reduction in value as well as loss of
compensation for such personal injury. Daniel, 72 S.W.         the use and enjoyment of the property.
at 579.
                                                               (Emphasis added.) On the face of the foregoing, it is
In their first issue on appeal, the Days contend the           obvious that appellees' allegations of [*7] discomfort
evidence is legally or factually insufficient to support the   and annoyance--or personal injury--were incorporated
nuisance damages found by the jury in answer to Jury           in the definition of "nuisance" given in Jury Question
Question Number Two. The Days argue a theory that              Number One, together with the allegation of interference
Jury Question Number Two submitted only the issue of           with their use and enjoyment of their property--or injury
property damage, measurable by the difference in               to property. And Jury Question Number Two, conditioned
                                                                                                            Page 4 of 8
                                               1999 Tex. App. LEXIS 5550, *7



on a "yes" answer to Jury Question Number One, asked              answer to Jury Question Number Three, which asked
the jury to determine the amount of money necessary to              [*9]    the jury whether Jim Day or Delores Day
fairly and reasonably compensate the appellees for                trespassed on the property of Fred Jones and David
both kinds of injury, if any, caused by the nuisance. This        and Catherine Ward. We need not discuss the point
is an accepted method for submitting to the jury both             because we will sustain the Days' second assignment
kinds of injury--personal injury and injury to property.          of error concerning the award of damages for trespass.
See Lacy Feed Co., 517 S.W.2d at 850-51; Meat                     Therein, they point out correctly that there is no evidence
Producers, Inc. v. McFarland, 476 S.W.2d 406, 410-11              conforming to the measure of damages that governed
(Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.).                 the issue.

We should add that the trial court was obliged to submit          [*10] In Jury Question Number Four, the jury was asked
to the jury the questions, instructions, and definitions          and responded as follows:
raised by the evidence. Tex. R. Civ. P. 278. HN4
Concerning damages, the trial court was authorized to             JURY QUESTION NO. 4
submit only those elements of damages for which
                                                                  What sum of money paid now in cash, do you find would
evidence was introduced. See 4 Texas Civil Practice §
                                                                  fairly and reasonably compensate the following for
22:33[b], at 241-42 (Diane M. Allen et al. eds., 1992
                                                                  his/her losses, if any, resulting from Defendants'
ed.). Thus, the [*8] Days' theory is inherently doubtful
                                                                  trespass:
because it argues that the trial court in the present case
submitted a single element of damages for which no                Fred Jones [$ 500]
evidence was introduced (property damage) while
neglecting to submit the only element for which evidence          Mary Tripp [- 0 -]
was introduced (personal-injury damages). In any event,
the Days did not object to Jury Question Number Two               David and Catherine Ward [$ 4,000]
on the ground that it was not justified by the evidence.
                                                                  You are instructed that:
We therefore reject the Days' contention that the charge
submitted to the jury only the issue of property damages.         the measure of damages is the difference in the market
The Days do not contend that the evidence supporting              value of the land before and after the trespass.
personal-injury damages is legally or factually
insufficient; and, as pointed out above, these are                In our discussion of appellees' cause of action for
recoverable irrespective of any injury to property.               nuisance, we pointed out that it is undisputed that the
Presumably then, the amounts found by the jury in Jury            appellees' introduced no evidence tending to prove the
Question Number Two are based on evidence of                      market value of their properties immediately before and
personal injury. The contrary is not shown.                       immediately after any injury to property.

We hold accordingly and overrule the Days' first                  The appellees point to evidence introduced by them
assignment of error.                                              which tended to prove the differing market values of the
                                                                  property with and without the nuisance, the measure of
TRESPASS                                                          damages for temporary injury to property. See Sherman
                                                                  Gas & Elec. Co. v. Belden, 103 Tex. 59, 123 S.W. 119,
The Days direct two assignments of error at the award             121 (Tex. 1909); Meat Producers, 476 S.W.2d at 413.
of damages for trespass. 3 In the first, they complain            We therefore do not understand the applicability of
there was no evidence to support the jury's affirmative           these decisions. Appellees did not object to the [*11]

3
    HN5 The elements of a cause of action for trespass are: (1) an intentional (2) entry on land (3) in the possession of another.
Restatement (Second) of Torts § 158 (1965). See First City Nat'l Bank v. Japhet, 390 S.W.2d 70, 74-75 (Tex. Civ. App.--Houston
1965, writ denied). HN6 The damages recoverable for trespass are various, but where the suit is for permanent injury to land,
the measure of damages is the difference in market value of the land immediately before and immediately after the trespass.
See Uvalde County v. Barrier, 710 S.W.2d 740, 743-44 (Tex. App.--San Antonio 1986, no writ).
Here, the entry of appellees' properties was alleged to be effected by bullets coming to rest on their properties. The resulting
injury was alleged to be an interference with the appellees' use and enjoyment of their properties.
                                                                                                                     Page 5 of 8
                                           1999 Tex. App. LEXIS 5550, *11



instruction fixing the measure of damages for trespass,       David Ward [- 0 - ]
given in Jury Question Number Four. This instruction
fixed the measure of damages as the difference in             Catherine Ward [$ 500]
market value before and after the trespass. However
                                                              Appellees did not object to the form of submission of
erroneous this may be in light of the evidence and
                                                              Jury Question Number Six.
pleadings, the jury was bound by the instruction. We are
required to judge the sufficiency of the evidence by that     The Days contend the evidence is legally or factually
measure, and we find no evidence of such values. See          insufficient to support the jury findings in response to
Tex. R. App. P. 33.1; 4 Texas Civil Practice § 22.22[b], at   Jury Questions Number Five and Six. We will
275.                                                          summarize the relevant evidence.

We will therefore reverse the judgment insofar as it          Fred Jones testified that the constant discharge of
awards damages for trespass and render judgment that          large-caliber rifles at the shooting range [*13] interfered
the appellees take nothing by that cause of action.           with his ability to carry on a conversation on his patio
                                                              and with his ability to hear his television set while inside
INVASION OF PRIVACY                                           his home. Lloyd Adams testified that the shooting began
                                                              about eight or ten o'clock in the morning and continued
In answer to Jury Question Number Five, the jury found        until nine o'clock at night, although he occasionally
that Jim Day or Delores Day had "intruded upon the            heard shooting until midnight or after, and that the noise
privacy of" Fred Jones, Lloyd Adams, and Catherine            interfered with his sleeping. Catherine Ward testified
Ward. The question was submitted with the following           that the shooting occurred seven days a week and
instruction:                                                  interfered with her ability to carry on a conversation or
                                                              hear the television set inside her home. All three
It is an "Intrusion upon a person's privacy" if another
                                                              concluded that the noise invaded their privacy.
person wrongfully intrudes into the private activities of
such person in a manner which would outrage or cause          We believe the foregoing evidence may not be
mental suffering, shame, or humiliation to a person of        considered in judging the sufficiency of the evidence
ordinary sensibilities. Mental suffering is more than         with regard to the appellees' action for invasion of
   [*12]    disappointment, anger, resentment, or             privacy. Any injuries implicit in such evidence were, in
embarrassment, although it may include all of these           our view, encompassed in the jury's award of
elements. It includes a mental sensation of pain resulting    personal-injury damages in answer to Jury Question
from such painful emotion as grief, severe                    Number Two and would amount to a double recovery
disappointment, indignation, wounded pride, shame,            for the same injuries if allowed also under Jury Question
despair and/or public humiliation.                            Number Six. We do not see how the described effects of
                                                              the invasion of appellees' privacy are distinguishable
Appellees did not object to the instruction.                  from the annoyance and discomfort resulting from the
                                                              nuisance. [*14] Without other evidence, the body of
In Jury Question Number Six, the jury was asked and           evidence will not support the jury award of damages for
responded as follows:                                         invasion of privacy found in Jury Question Number Six.
                                                              We hold accordingly.
What sum of money would fairly and reasonably
compensate the following for the damages suffered due         We therefore reverse the judgment insofar as it awards
to the intrusion of [sic] privacy? In answering this          damages for invasion of privacy. We render judgment
question you shall take into account the following            that the appellees take nothing by that action.
elements of damage and none other: (1) mental
suffering; and (2) physical pain.                             EXCESSIVE DAMAGES

Fred Jones [$ 500]                                            The Days assign as error the trial court's refusal to order
                                                              a remittitur based on their contention that certain
Lloyd Adams [$ 1,000]                                         amounts awarded by the jury were grossly excessive.
                                                              We conclude the trial court did not abuse its discretion
Mary Tripp [- 0 - ]                                           for the reasons that follow.
                                                                                                             Page 6 of 8
                                             1999 Tex. App. LEXIS 5550, *14



The Days complain first that the $ 30,000 awarded Fred          local-government ordinance, order, or rule, rather than
Jones for injury to his land, by reason of the nuisance,        the non-existence of such an enactment. Moreover, the
exceeded the $ 28,645 fixed by appellees'                       Days' reasoning is unacceptable: the absence of such
property-appraisal witness as the amount of his                 an enactment does not necessarily reflect a decision; it
damages. We overrule the contention because the                 reflects only inaction. We overrule the Days' contention.
entire $ 30,000 could permissibly include under the
charge sums awarded for personal injury as discussed            CROSS APPEAL
above. This element of damages, as pointed out
previously, is not assailed on appeal.                          In a single cross-point, appellees complain that the trial
                                                                court abused its discretion by refusing their application
The Days complain next that the $ 1,000 awarded Fred            for a permanent injunction against future shooting on
Jones for trespass and invasion-of-privacy damages,             the Days' range. 4
and the $ 4,500 awarded David and Catherine Ward for
 [*15] the same torts, are excessive because they are           [*17] After the verdict in July 1996, which determined
not supported by the evidence and were fully                    that the Days' operation of the range amounted to a
encompassed within the damages awarded for                      private nuisance, the trial court issued on the appellees'
nuisance. We have previously reversed these awards              application a temporary restraining order prohibiting the
and need not consider this aspect of the Days' complaint        discharge of firearms at the range. Thereafter, the trial
of excessive damages.                                           court held a hearing on appellees' application for a
                                                                permanent injunction, and denied such relief in the
STATUTORY BAR                                                   court's final judgment signed April 14, 1997. We cannot
                                                                tell from the record whether an evidentiary hearing was
In their sixth issue, the Days complain that the trial court    held on the application for permanent injunction. The
erred in failing to hold the appellees' nuisance and            appellees have not informed us in that regard; the Days
invasion-of-privacy actions barred by reason of Texas           contend that a hearing of that kind was held. In all
Local Government Code section 250.001(c). HN7 The               events, no transcript of such a hearing appears in the
statute declares as follows:                                    appellate record.

A person may not bring a nuisance or similar cause of           The appellees were not entitled to a permanent
action against a sport shooting range based on noise if         injunction as a matter of right based simply on a
the sport shooting range is in compliance with all              judgment which establishes that the Days' operation of
applicable municipal and county ordinances, orders,             the range amounts to a nuisance. See Storey v. Central
and rules regulating noise.                                     Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615,
                                                                618 (Tex. 1950). And in the absence of a record
Tex. Gov't Code Ann. § 250.001(c) (West Supp. 1999)             demonstrating that the trial court abused its discretion
(emphasis added). Because no municipal or county                in some particular by refusing the appellees' application
ordinance, order, or rule regulating noise applied to the       for a permanent injunction, we [*18] cannot hold that the
Days' shooting range, the trial court evidently                 court did so. We therefore overrule appellees'
determined that the statute did not constitute a bar to         cross-point. See Phaup v. Boswell, 731 S.W.2d 625,
the appellees' causes of action.                                627 (Tex. App.--Houston [1st Dist.] 1987, no writ); 6
                                                                Texas Civil Practice § 48.3, at 1222-24 (1998).
The Days argue that the trial court misconstrued the
statute--if [*16] a municipality or county decides not to       For the reasons given, we reverse the trial-court
regulate noise, then a shooting range is necessarily in         judgment insofar as it awards damages for trespass
compliance with that decision. The statutory language           and invasion of privacy. We render judgment that
will not reasonably bear the Days' interpretation. HN8          appellees take nothing by those causes of action. We
By its express terms, the statutory bar is predicated on        affirm the balance of the judgment. See Tex. R. App. P.
the applicability and therefore the existence of a              43.2 (c).

4
    The appeal was perfected before September 1, 1997. Appellees were therefore allowed to bring their cross-point without
perfecting their own appeal, pursuant to the former Texas Rules of Appellate Procedure. See 6 Texas Civil Practice § 13.5, at
374 (1998).
                                                                                                                Page 7 of 8
                                      1999 Tex. App. LEXIS 5550, *18



Marilyn Aboussie, Chief Justice                      * Before John E. Powers, Senior Justice (retired), Third
                                                     Court of Appeals, sitting by assignment. See Tex. Gov't
Before Chief Justice Aboussie, Justices Kidd and
                                                     Code Ann. § 74.003(b) (West 1998).
Powers *
Affirmed in Part; Reversed and Rendered in Part
Filed: July 29, 1999




                                                                                                 Page 8 of 8
                                                                                                              Page 1




Caution
As of: Mar 30, 2015

                                 Elsie Dezso, Appellant v. Paul Harwood, Appellee

                                               NO. 03-95-00539-CV

                        COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

                                   926 S.W.2d 371; 1996 Tex. App. LEXIS 2560


                                                June 26, 1996, Filed

SUBSEQUENT HISTORY:                [**1] Motion for         suit and she was not properly served with citation, as the
Rehearing Overruled July 31, 1996. Released for Publi-      citation did not include the name "Elsie Dezso." We will
cation July 31, 1996.                                       affirm the default judgment.

PRIOR HISTORY:         FROM THE COUNTY                      BACKGROUND
COURT OF AT LAW NO. 2 OF TRAVIS COUNTY.
                                                                 In his original petition, Harwood alleged that he en-
NO.224,370, HONORABLE ORLINDA L. NARANJO,
                                                            tered into a distributorship agreement with Elsie Dezso's
JUDGE PRESIDING.
                                                            son, Danny Dezso, and Danny's business, Christian
    This Opinion Substituted on Motion for Rehearing        Symbols, acting [**2] for themselves and as authorized
for Withdrawn Opinion of May 1, 1996, Previously Re-        agents of Judi Dezso, Judi's Cupboard, Judi's Card and
ported at: 1996 Tex. App. LEXIS 1707.                       Gift Shop and Christian Symbols. The agreement would
                                                            have allowed Harwood to obtain display cases, jewelry
DISPOSITION:          Affirmed                              merchandise, and other products to be sold in Austin and
                                                            surrounding areas. Additionally, the contract provided
                                                            that Danny Dezso would assist in marketing the mer-
JUDGES: Before Justices Powers, Jones and B. A.             chandise. Harwood paid for the distributorship in part by
Smith                                                       cash and in part by charging $ 3,905 on his credit cards
                                                            through Judi's Cupboard and Judi's Card and Gift Shop.
OPINION BY: Bea Ann Smith
                                                                 In February 1995, Harwood filed suit under the De-
                                                            ceptive Trade Practices - Consumer Protection Act al-
OPINION
                                                            leging breach of warranty, breach of contract, and other
                                                            misrepresentations with regard to the distributorship
[*372] ON MOTION FOR REHEARING
                                                            agreement. See Tex. Bus. & Com. Code Ann. §§
    Our opinion of May 1, 1996 is withdrawn and this        17.41-19.47 (West 1987 & Supp. 1996).
one is substituted in its place.
                                                                Elsie Dezso operates Judi's Cupboard, Inc., also do-
    Elsie Dezso appeals by writ of error a default judg-    ing business as Judi's Card and Gift Shop; she owns the
ment rendered against her March 27, 1995 in favor of        corporation with her [*373] husband and her two
Paul Harwood. In four points of error, Elsie Dezso con-     daughters. Danny Dezso operates a separate business
tends that the trial court erred in rendering a default     known as Christian Symbols. Danny is married to Judi
judgment against her because she was not a party to the     Dezso, who has no apparent connection with Elsie
                                                                                                                    Page 2
                                   926 S.W.2d 371, *; 1996 Tex. App. LEXIS 2560, **


Dezso's businesses and had no business dealings with           was served, the default judgment cannot stand. Callan
Mr. Harwood. [**3] 1                                           v. Bartlett Elec. Coop., 423 S.W.2d 149, 156 (Tex. Civ.
                                                               App.--Austin 1968, writ ref'd n.r.e.); Thomas v. Cactus
       1 Although Danny Dezso was a party in the               Drilling Corp., 405 S.W.2d 214, 216 (Tex. Civ.
       original suit, the trial court severed the claims as    App.--Austin 1966, no writ). In Thomas, this Court stat-
       to him.                                                 ed:
       Because Elsie Dezso's businesses are called "Judi's
                                                                          The principle of these cases is simple.
Cupboard" and "Judi's Card and Gift Shop," Harwood
                                                                      If a person thought to be named A is sued
mistakenly believed that the appropriate defendant in his
                                                                      and served under that name the judgment
action was named Judi Dezso, when in fact her name was
                                                                      against him is valid even though his name
Elsie Dezso. Accordingly, the original citation was is-
                                                                      is B. But if one has a cause of action
sued to "Dezso, Judi Individually and DBA Judi's Cup-
                                                                      against a person with the same or similar
board DBA Judi's Card & Gift Shop & DBA Christian
                                                                      name, service on the person against whom
Symbols" without mention of Elsie Dezso. Attached to
                                                                      one has no cause of action will not sup-
the citation was Harwood's original petition reciting his
                                                                      port a judgment against the one amenable
DTPA claims. Although Harwood referred to Elsie
                                                                      to the cause of action asserted.
Dezso as Judi Dezso in the petition, the petition explicit-
ly listed all the DTPA complaints regarding his contrac-
tual agreement with Elsie Dezso and her son. Elsie
                                                               Id. Elsie Dezso seems to rely on Thomas and similar
Dezso does not dispute that she was actually served with
                                                               cases in arguing that when there are two separate persons
the citation and the original petition.
                                                               or corporations involved with the same or similar names,
     When Elsie Dezso failed to respond to the citation,       the case [**6] is one of mistaken identity. However,
Harwood obtained a default judgment against her. The           these cases simply explain that when the incorrect de-
default judgment [**4] refers to Elsie Dezso as "Judi          fendant is served with citation, a default judgment
Dezso, also known as Elsie Dezso, individually and do-         against such incorrect defendant cannot extend to cover
ing business as Christian Symbols, Judi's Cupboard and         the correct defendant, even if their names are the same or
Judi's Card and Gift Shop . . . ." Elsie Dezso filed a writ    similar.
of error seeking to overturn the default judgment.
                                                                    When the correct defendant is served under the
    DISCUSSION AND HOLDINGS                                    wrong name the case is not one of misidentification but
                                                               rather misnomer. Enserch Corp. v. Parker, 794 S.W.2d 2,
    By her four points of error, Elsie Dezso essentially
                                                               4-5 [*374] (Tex. 1990); Adams v. Consolidated Un-
contends that the trial court erred in rendering a default     derwriters, 133 Tex. 26, 124 S.W.2d 840, 841 (Tex.
judgment against her, because her name did not appear          1939); West v. Johnson, 129 S.W.2d 811, 815 (Tex. Civ.
on the citation. Elsie Dezso asserts that because she was
                                                               App.--Fort Worth 1939, writ ref'd); Haley v. Young, 541
not an intended party to the suit the default judgment
                                                               S.W.2d 217, 219 (Tex. Civ. App.--Houston 1976, no
cannot stand.
                                                               writ). The supreme court in Adams explained the mis-
     An appeal by writ of error directly attacks the de-       nomer rule:
fault judgment. McKanna v. Edgar, 388 S.W.2d 927, 928
(Tex. 1965). In such an appeal "the question to be decid-
ed is whether there is a lack of jurisdiction apparent on
the face of the record which would vitiate the trial court's          When a person intended to be sued is sued
judgment." Id. Elsie Dezso basically argues that because              and served by a wrong name, and such
the name Elsie Dezso was not on the citation or plead-                person falls to appear and plead such
ings, she was not a party to the suit; thus, jurisdiction             misnomer in abatement, and suffers
would not be proper over her. In cases such as the one at             judgment to be obtained, he is bound by
hand, "it is essential that the record affirmatively show a           such judgment, and in all future litigation
strict compliance with the provided manner and mode                   he may be connected with such suit or
[**5] of service of process." Id. The record in this case             judgment by proper averments; and when
indicates that Elsie Dezso did in fact receive service of             such averments are made and proved, the
process, although under a misnomer.                                   party intended to be named in the judg-
                                                                      ment is affected [**7] or concluded to
    Elsie Dezso asserts that this is not a case of misno-             the same extent that he would have been
mer, but instead is a case of misidentification in which              if he had been named and served by his
the wrong defendant was served. If the wrong defendant                true name.
                                                                                                                  Page 3
                                  926 S.W.2d 371, *; 1996 Tex. App. LEXIS 2560, **




 Adams, 124 S.W.2d at 841. As the court in West stated,             When an intended defendant is sued under
"The test seems to be whether or not the right person was           an incorrect name, jurisdiction is proper
sued, and whether or not he was put on notice that he,              after service on defendant under misno-
and not some other person, had been sued." West, 129                mer, but it must be clear that no one was
S.W.2d at 815.                                                      misled.
     Given the circumstances in this case, we believe that               A misnomer of a defendant does not
Elsie Dezso had adequate notice that she had been sued              render a judgment based on personal ser-
by Harwood. Although the citation did not refer to Elsie            vice, even one by default, void, provided
Dezso by her correct name, her corporation and its busi-            the intention to sue the defendant actually
ness names were on the citation. Additionally, the origi-           served with citation is so evident from the
nal petition expressly pointed out all of Harwood's com-            pleadings and process that the defendant
plaints regarding his dealings with Elsie Dezso, her son,           could not have been misled.
and the related businesses. Based on the allegations in
the petition, Elsie Dezso knew that her daughter-in-law,
Judi Dezso, was not in any way involved in the business       Cockrell, 737 S.W.2d at 140 (citations omitted). In the
dealings that formed the basis of Harwood's lawsuit. The     circumstances [**9] of this case, Elsie Dezso could not
allegations also made clear that Elsie Dezso's businesses,   have been misled into believing that her daughter-in-law
Judi's Cupboard and Judi's Card and Gift Shop, were          was the intended defendant of Harwood's suit regarding
involved in the transactions that were the subject of        the distributorship.
Harwood's suit. Further, Elsie Dezso testified at [**8] a
                                                                 It is apparent that Elsie Dezso was Harwood's in-
hearing on her motion to set aside the default judgment
                                                             tended defendant and was simply misnamed. Appellant
that "since the store's name is Judi, a lot of people will
                                                             was, therefore, a party to the suit who was properly
call me Judi because . . . they think it is my name."
                                                             served with citation, and there is no lack of jurisdiction
Based on these factors, Elsie Dezso should have logically
                                                             apparent on the face of the record. Accordingly, we
concluded that Harwood intended to sue her and that he
                                                             overrule all four points of error.
had simply misnamed her.
                                                                Having found no error, we affirm the default judg-
     Texas case law supports the principle that unless the
                                                             ment.
pleadings and citation actually mislead the misnamed
defendant, a default judgment will not be rendered void.         Bea Ann Smith, Justice
Baker v. Charles, 746 S.W.2d 854, 855 (Tex.
App.--Corpus Christi 1988, no writ); Cockrell v. Estevez,        Before Justices Powers, Jones and B. A. Smith
737 S.W.2d 138, 140 (Tex. App.--San Antonio 1987, no             Affirmed
writ). The Cockrell court stated:
                                                                 Filed: June 26, 1996
                                                                                                                 Page 1




                                                   1 of 1 DOCUMENT




Analysis
As of: Mar 30, 2015

               FLUOR DANIEL, INC., Appellant, v. H.B. ZACHARY COMPANY, INC., Appellee.

                                    NUMBERS 13-03-585-CV AND 13-03-586-CV

                    COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS
                                           CHRISTI

                                              2005 Tex. App. LEXIS 8403


                                 October 13, 2005, Memorandum Opinion Delivered
                                  October 13, 2005, Memorandum Opinion Filed

SUBSEQUENT HISTORY:              [*1]                         appealable. That judgment denied all relief not specifi-
Petition for review denied by Fluor Daniel, Inc. v. H.B.      cally therein granted. Although appellant alleged that the
Zachry Co., 2006 Tex. LEXIS 478 (Tex., May 19, 2006)          declaratory judgment could not provide the basis for an
                                                              award of attorney's fees, appellant was the party who
PRIOR HISTORY:           On appeal from the 94th Dis-         first brought a declaratory judgment action. There was
trict Court of Nueces County, Texas.                          more than a scintilla of evidence to support the attorney's
 Fluor Daniel, Inc. v. H. B. Zachry Co., 1 S.W.3d 166,        fees award under Tex. Civ. Prac. & Rem. Code Ann. §
1999 Tex. App. LEXIS 5441 (Tex. App. Corpus Christi,          37.009 (1997). Appellee was the prevailing party in a
1999)                                                         declaratory judgment action, and the arbitration agree-
                                                              ment between the parties specifically called for an award
CASE SUMMARY:                                                 of attorney's fees when one party sought judicial relief.
                                                              Moreover, appellee presented numerous invoices from
                                                              counsel, which detailed the expenses appellee incurred in
PROCEDURAL POSTURE: Appellant, a contributor                  defending and prosecuting its claims.
to a settlement fund, sought review of an order of the
94th District Court of Nueces County (Texas), which           OUTCOME: The court affirmed the trial court's judg-
severed appellant's original claim for declaratory relief     ment.
against appellee, another contributor to the settlement
fund, from appellee's counterclaim for attorney's fees and    LexisNexis(R) Headnotes
awarded attorney's fees to appellee.

OVERVIEW: In the underlying cause, the trial court
interpreted an arbitration decision and required appellee     Civil Procedure > Declaratory Judgment Actions >
to contribute only 10 percent of the settlement fund. The     General Overview
court held that the record clearly indicated that the trial   Civil Procedure > Remedies > Costs & Attorney Fees >
court intended to dispose of all issues and parties in-       General Overview
volved in the claim for declaratory relief. The trial court   [HN1] See Tex. Civ. Prac. & Rem. Code Ann. § 37.009
severed the two causes of action, thereby making the          (1997).
judgment on the declaratory judgment claim final and
                                                                                                                 Page 2
                                             2005 Tex. App. LEXIS 8403, *


                                                              of an award of attorney's fees. In sum, when reviewing
Civil Procedure > Pretrial Matters > Separate Trials          an award of attorney's fees under the Act, the court of
Civil Procedure > Appeals > Appellate Jurisdiction >          appeals must determine whether the trial court abused its
Final Judgment Rule                                           discretion by awarding fees when there was insufficient
[HN2] A judgment is final for purposes of appeal if it        evidence that the fees were reasonable and necessary, or
disposes of all pending parties and claims in the record,     when the award was inequitable or unjust.
except as necessary to carry out the decree. Whether a
judicial decree is a final judgment must be determined
from its language and the record in the case. Moreover, a     Civil Procedure > Declaratory Judgment Actions >
severance divides the lawsuit into two or more separate       General Overview
and independent causes. When this is done, a judgment         Civil Procedure > Remedies > Costs & Attorney Fees >
that disposes of all parties and issues in one of the sev-    General Overview
ered causes is final and appealable.                          [HN6] Under the Texas Declaratory Judgments Act of
                                                              Tex. Civ. Prac. & Rem. Code Ann. ch. 37, a party does
                                                              not have to prevail to be awarded attorney's fees.
Civil Procedure > Appeals > Appellate Jurisdiction >
Final Judgment Rule                                           COUNSEL: For APPELLANT: William N. Woolsey,
[HN3] Finality must be resolved by a determination of         LAW OFFICE of WILLIAM N WOOLSEY, P.C., Cor-
the intention of the court as gathered from the language      pus Christi, TX.
of the decree and the record as a whole, aided on occa-
sion by the conduct of the parties.                           For APPELLEE: James F. Buchanan, WELDER,
                                                              LESHIN & MAHAFFEY, Corpus Christi, TX.

Civil Procedure > Declaratory Judgment Actions >              JUDGES: Before Chief Justice Valdez and Justices Hi-
State Judgments > Discretion                                  nojosa and Rodriguez. Opinion by Chief Justice Valdez.
Civil Procedure > Remedies > Costs & Attorney Fees >
Attorney Expenses & Fees > Statutory Awards                   OPINION BY: Rogelio Valdez
[HN4] Tex. Civ. Prac. & Rem. Code Ann. § 37.009 ex-
plicitly states that the trial judge may award reasonable     OPINION
and necessary attorney's fees as are equitable and just for
                                                                  MEMORANDUM OPINION
any proceeding brought under the Texas Declaratory
Judgments Act of Tex. Civ. Prac. & Rem. Code Ann. ch.             Opinion by Chief Justice Valdez
37. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (1997).
                                                                  This is an appeal from a trial court's order severing a
Thus, the award of attorney's fees in a declaratory judg-
ment action is entrusted to the discretion of the trial       case and awarding attorney's fees in one of the two sev-
court. In a declaratory judgment action, a successful de-     ered causes of action. A thorough articulation of the un-
                                                              derlying dispute between these parties, which triggered
fendant may recover attorney's fees if the defendant so
                                                              in part the current appeal, can be found in our opinion
requests.
                                                              reported at Fluor Daniel, Inc. v. H.B. Zachry, Co., 1
                                                              S.W.3d 166 (Tex. App.-Corpus Christi 1999, pet. denied).
                                                              We affirm.
Civil Procedure > Declaratory Judgment Actions >
General Overview
Civil Procedure > Remedies > Costs & Attorney Fees >          FACTS
Attorney Expenses & Fees > Reasonable Fees                         Essentially, this dispute arises from an action to
Civil Procedure > Remedies > Costs & Attorney Fees >          construe and enforce an arbitration award. Appellant,
Attorney Expenses & Fees > Statutory Awards                   Fluor Daniel, Inc., and appellee, H.B. Zachry Company,
[HN5] The standards for awarding attorney's fees pursu-       Inc., were originally both named defendants in a lawsuit
ant to the Texas Declaratory Judgments Act of Tex. Civ.       brought by Arturo Ruiz against several defendants in
Prac. & Rem. Code Ann. ch. 37 are that (1) the fees must      1992. 1 Ruiz was an employee of Citgo Petroleum Cor-
be reasonable and necessary, which is a question of fact,     poration when he fell and sustained debilitating injuries.
and (2) the fees must be equitable and just, which is a       Fluor, Zachry and a third-party [*2] entered into a set-
matter of law. The trial court abuses its discretion if it    tlement agreement with Ruiz and created a settlement
awards attorney's fees arbitrarily, unreasonably, or with-    fund. 2 Fluor initially contributed $ 800,000 to the fund
out regard to guiding legal principals. Additionally, there   and Zachry contributed $ 50,000. As part of the agree-
must be supporting evidence in order to sustain a verdict     ment, Fluor and Zachry agreed to arbitrate the compara-
                                                                                                                    Page 3
                                               2005 Tex. App. LEXIS 8403, *


tive responsibility and contribution between themselves.               4     The district court's order dismissing with
3
  Fluor and Zachry presented their arguments before an                 prejudice certain claims, pursuant to the settle-
arbitration panel, which apportioned liability as follows:             ment agreement, specifically retained Zachry and
Citgo, 80% liable; Fluor, 10% liable; and Zachry, 10%                  Fluor's contribution claims, subject to binding ar-
liable.                                                                bitration.
                                                                    Fluor then sued Zachry in the United States District
       1 Cause No. 92-1055-C, styled Arturo Ruiz v.
                                                               Court for the Southern District of Texas. 5 This suit,
       H.B. Zachry Company, Fluor Daniel, Inc., Mun-
                                                               however, was dismissed for want of jurisdiction pursuant
       dy Services Corp., and Brand Scaffold Builders,
                                                               to the Rooker-Feldman doctrine. 6 Fluor, still seeking
       Inc.
                                                               relief, next filed suit as Cause No. 97-3543-C in the same
       2 The third-party is Mundy Industrial Mainte-
                                                               Texas district court that rendered the initial judgment in
       nance, Inc. (incorrectly named by Ruiz as Mundy
                                                               Cause No. 92-1055-C. 7 Zachry's answer raised, inter
       Service Corp.). Mundy contributed $ 50,000 to
                                                               alia, the affirmative defenses of res judicata and collat-
       the settlement fund and both Fluor and Zachry
                                                               eral estoppel. Zachry also filed a counterclaim in which
       agreed to release Mundy from further contribu-
                                                               it asked the district court to declare that Fluor violated
       tion and indemnity.
                                                               the agreement regarding arbitration, therefore, entitling
       3 The agreement provided in relevant part:
                                                               Zachry to attorney's fees. 8 Zachry also filed a motion for
                                                               summary judgment asserting that res judicata and collat-
                  The respected [sic] percentages
                                                               eral estoppel precluded [*5] Fluor from recovering. The
               of liability, if any, of the parties in
                                                               trial court granted the motion and Fluor appealed. We
               the total sum of the settlement
                                                               reversed and remanded, holding that these doctrines were
               fund will be determined under this
                                                               inapplicable because Fluor's suit was only asking the trial
               agreement, it being the intention
                                                               court to give effect to a prior judgment and not reappor-
               of the parties that Zachry or Fluor
                                                               tion liability. See Fluor, 1 S.W.3d at 169-70.
               Daniel or a third party or all or
               some of them be found liable to
                                                                       5     Civil Action No. C-96-603, styled Fluor
               the extent of the total thereof.
                                                                       Daniel, Inc. v. H.B. Zachry Co., Inc.
                                                                       6 The Rooker-Feldman doctrine is discussed in
                                                                       more detail in our previous opinion. See Fluor
      [*3] The determination of exactly what the per-                  Daniel, Inc. v. H.B. Zachry, Co., 1 S.W.3d 166,
centage of liability apportionment meant, however, re-                 168-69 (Tex. App.-Corpus Christi 1999, pet. de-
sulted in the ensuing litigation. Fluor construed the arbi-            nied). Essentially, we stated that "under the
tration panel's decision to mean that since Citgo was                  Rooker-Feldman doctrine, federal district courts,
statutorily shielded from liability, both Fluor and Zachry             as courts of original jurisdiction, lack jurisdiction
should contribute equally to the settlement fund because               to review, modify, or nullify final orders of state
they were found equally at fault. However, Zachry inter-               courts." Id. at 168.
preted the panel's ruling differently, believing that since            7 The basis of this petition was "to have the
it was held to be only 10% at fault, it is responsible for             Court construe the Arbitration Agreement be-
providing only 10% of the settlement fund. The crux of                 tween these parties and its earlier judgment en-
Zachry's belief is that the panel had the option of finding            tered pursuant to such Agreement and declare the
Citgo 100% percent liable, which would have yielded the                meaning thereof in aid of enforcement of the
status quo. The status quo would have been exactly what                Judgment." Fluor conceded that the court's prior
the parties tendered into the settlement fund prior to ar-             judgment was final, binding, and unappealable
bitration, with Fluor contributing $ 800,000 and Zachry                under the terms of the agreement, but it asked the
contributing $ 50,000.                                                 court to declare the prior judgment's actual dollar
                                                                       effect as to each party, due to the fact that the ar-
     Fluor sought judicial review of the panel's ruling. 4
                                                                       bitration panel's decision apportioning liability
First, Fluor attempted to have the district court modify,
                                                                       against Citgo was "inconsistent with Texas law"
correct and confirm the arbitration panel's final award to
                                                                       as well as the settlement agreement between Flu-
their interpretation. The district court denied the relief
                                                                       or and Zachry.
Fluor sought and entered a final judgment in Cause No.
                                                                [*6]
92-1055-C. No appeal from this judgment was taken;
                                                                       8 Chapter 37 of the Texas Civil Practice and
therefore, [*4] this became a final and unappealable
                                                                       Remedies Code, known as the Declaratory Judg-
order.
                                                                       ments Act, provides that in any proceeding under
                                                                       the Act [HN1] "the court may award costs and
                                                                                                                      Page 4
                                               2005 Tex. App. LEXIS 8403, *


        reasonable and necessary attorney's fees as are               The Texas Supreme Court has stated that [HN2] "a
        equitable and just." TEX. CIV. PRAC. & REM.              judgment is final for purposes of appeal if it disposes of
        CODE ANN. § 37.009 (Vernon 1997).                        all pending parties and claims in the record, except as
                                                                 necessary to carry out the decree."           Lehmann v.
     On remand, the district court severed the claims into
                                                                 Har-Con Corp., 39 S.W.3d 191, 195, 44 Tex. Sup. Ct. J.
two causes, Cause No. 97-3543-C (Fluor's original
                                                                 364 (Tex. 2001) (citations omitted). "Whether a judicial
claim) and 97-6119-C (Zachry's counterclaim for attor-
                                                                 decree is a final judgment must be determined from its
ney's fees). Cause No. 97-3543-C proceeded to a bench
                                                                 language and the record in the case." Id. Moreover, "[a]
trial in which the court rendered judgment in favor of
                                                                 severance divides the lawsuit into two or more separate
Zachry on January 2, 2001. Fluor filed a timely motion
                                                                 and independent causes. When this is done, a judgment
for new trial, which was overruled by operation of law,
                                                                 that disposes of all parties and issues in one of [*9] the
and attempted to appeal the final judgment in Cause No.
                                                                 severed causes is final and appealable." Hall v. City of
97-3543-C. However, we dismissed that appeal for want
                                                                 Austin, 450 S.W.2d 836, 837-38, 13 Tex. Sup. Ct. J. 163
of jurisdiction, holding that Fluor did not timely file its
                                                                 (Tex. 1970) (emphasis added).
notice of appeal pursuant to Texas Rule of Appellate
Procedure 26.1. See Fluor Daniel, Inc. v. H.B. Zachry,               The trial court severed the two causes of action on
Co., No. 13-01-289-CV, 2001 Tex. App. LEXIS 3675                 January 2, 2001, thereby making the judgment in Cause
(Tex. App.-Corpus Christi [*7] May 24, 2001, no pet.)            No. 97-3543-C final and appealable. The judgment for
(not designated for publication).                                Cause No. 97-3543-C reads in pertinent part:
     Cause No. 97-6119-C (Zachry's claim for attorney's
                                                                            It is hereby ORDERED, ADJUDGED
fees) then proceeded to a jury trial. The jury returned
                                                                        AND DECREED that the declaratory re-
judgment in favor of Zachry and awarded it reasonable
                                                                        lief sought by H. B. Zachry Company,
and necessary attorney's fees in the amount of $ 50,000
                                                                        Inc. that its liability for contribution to
for defending Cause No. 97-3543-C and for prosecuting
                                                                        Fluor Daniel, Inc. be limited to ten per-
Cause No. 97-6119-C. The jury also held that if Cause
                                                                        cent (10%) of the total settlement fund as
No. 97-6119-C were appealed to this Court, then the
                                                                        determined by the Arbitration Panel in its
reasonable and necessary attorney's fees Zachry would
                                                                        Final Decision must be and it is hereby
additionally incur on appeal would be $ 12,500. The dis-
                                                                        GRANTED.
trict court subsequently rendered judgment on the ver-
dict. The court entered its "Final Judgment" on July 3,                      ...
2003, according to the court's docket sheet; however, the
                                                                             IT IS ORDERED, ADJUDGED and
date was not noted on the copy of the judgment. On July
                                                                        DECREED that the Counter-Claim of H.
30, 2003, Fluor filed a motion for new trial, and Zachry
                                                                        B. Zachry Company, Inc. for recovery of
filed an "Unopposed Motion For Entry of Judgment
                                                                        attorney's fees be and the same is hereby
Nunc Pro Tunc" seeking to have the nunc pro tunc
                                                                        severed from the claim of Fluor Daniel
judgment date reflect the date of the final judgment. The
                                                                        Inc. and H. B. Zachry, Inc. and the Coun-
court signed the nunc pro tunc judgment on July 31,
                                                                        ter-Claim of H. B. Zachry Company, Inc.
2003. Subsequently, Fluor filed an amended motion for
                                                                        against Fluor Daniel, Inc. as to which the
new trial on August 12, 2003, and then it filed its notice
                                                                        Court has entered this Judgment, which
of appeal for Cause No. 97-6119-C on September 30,
                                                                        Judgment is hereby made final; and
2003. In [*8] addition, and on the same day, Fluor filed
another notice of appeal for Cause No. 97-3543-C.                            IT IS FURTHER ORDERED that the
                                                                        Clerk of the Court re-docket the pleadings
FINALITY OF JUDGMENT                                                    of H. B. Zachry Company, Inc. asserting
                                                                        its claim for attorney's [*10] fees as
     We address Fluor's second issue which essentially
                                                                        Cause No. 97-6119-C in this Court in
asserts that "the trial court erred in severing the attorney's
                                                                        such other manner as approved by the
fees issue and rendering an ostensible final judgment in
                                                                        Court which will preserve such claims.
Cause No. 97-3543-C." Fluor did not, however, present
an argument regarding the propriety of the severance;                       All relief not specifically herein
rather, Fluor avers that the judgment entered on January                granted, is denied.
2, 2001 in Cause No. 97-3543-C was not final and it did
not become final until Cause No. 97-6119-C made it
final. Fluor's argument is wholly unfounded.
                                                                     Therefore, the record clearly indicates that the trial
                                                                 court intended to dispose of all issues and parties in-
                                                                                                                    Page 5
                                              2005 Tex. App. LEXIS 8403, *


volved in Cause No. 97-3543-C. Further, the parties            writ). Having forced Zachry to defend against a declara-
themselves understood this is what the trial court in-         tory judgment action, Fluor may not now complain on
tended. [HN3] "Finality 'must be resolved by a determi-        appeal that a declaratory judgment was not a "proper
nation of the intention of the court as gathered from the      avenue" for this case.
language of the decree and the record as a whole, aided
                                                                    Finally, Fluor alleges that the award itself was ineq-
on occasion by the conduct of the parties.'" Lehmann,
                                                               uitable. [HN4] Section 37.009 of the civil practice and
39 S.W.3d at 203 (quoting 5 RAY W. MCDONALD,
                                                               remedies code explicitly states that the trial judge may
TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Cov-
                                                               [*13] award reasonable and necessary attorney's fees as
ell, ed., 1992 ed.)). The record is patently clear from the
                                                               are equitable and just for any proceeding brought under
conduct of the trial judge and the parties that they in-
                                                               the Texas Declaratory Judgments Act (hereinafter "Act")
tended the January 2, 2001 final order in Cause No.
                                                               of chapter 37 of the civil practice and remedies code. See
97-3543-C to be final and appealable. In fact, Fluor at-
                                                               TEX. CIV. PRAC. & REM. CODE ANN. § 37.009
tempted to appeal this judgment, albeit after the time for
                                                               (Vernon 1997); Bocquet v. Herring, 972 S.W.2d 19, 20,
appeal had expired. Fluor had its chance to appeal the
                                                               41 Tex. Sup. Ct. J. 650 (Tex. 1998). Thus, the award of
final judgment of Cause No. 97-3543-C but failed to
                                                               attorney's fees in a declaratory judgment action is en-
abide by the rules. Fluor now seeks a second bite at the
                                                               trusted to the discretion of the trial court. See Bocquet,
apple by again bringing an appeal [*11] but disguising
                                                               972 S.W.2d at 20. In a declaratory judgment action, a
it as an attack on the severance of the case. Accordingly,
                                                               successful defendant may recover attorney's fees if the
Fluor's issue on severance is overruled.
                                                               defendant so requests. Id.
    ATTORNEY'S FEES
                                                                    [HN5] The standards for awarding attorney's fees
     We now turn to Fluor's issue regarding the award of       pursuant to the Act are that (1) the fees must be reasona-
attorney's fees. In its counterclaim, Zachry alleged that      ble and necessary, which is a question of fact, and (2) the
"as the prevailing party in a suit for declaratory judgment    fees must be equitable and just, which is a matter of law.
[Cause Number 97-3453-C] it would be just and equita-          Id. at 21. The trial court abuses its discretion if it awards
ble for . . . [it] to recover its reasonable and necessary     attorney's fees arbitrarily, unreasonably, or without re-
attorney's fees . . . pursuant to § 37.009, Texas Civil        gard to guiding legal principals. Id. (citing Goode v.
Practice and Remedies Code." Zachry alleged that it            Shoukfeh, 943 S.W.2d 441, 446, 40 Tex. Sup. Ct. J. 487
incurred in excess of $ 150,000 in reasonable and neces-       (Tex. 1997)). Additionally, there must be supporting ev-
sary attorney's fees. 9 Fluor contends that the trial court    idence in [*14] order to sustain a verdict of an award of
should not have awarded attorney's fees in favor of            attorney's fees. See id. (citing Beaumont Bank v. Buller,
Zachry. Fluor raises several reasons for this assertion.       806 S.W.2d 223, 226, 34 Tex. Sup. Ct. J. 482 (Tex.
                                                               1991)). In sum, when reviewing an award of attorney's
       9 The jury however awarded Zachry only $                fees under the Act, "the court of appeals must determine
       50,000 for reasonable and necessary attorney's          whether the trial court abused its discretion by awarding
       fees.                                                   fees when there was insufficient evidence that the fees
                                                               were reasonable and necessary, or when the award was
    First, Fluor alleges that Zachry's reliance on section
                                                               inequitable or unjust." Id.
38.001 of the civil practice and remedies code for its
authority to recover attorney's [*12] fees "is flawed."             In the present case, we find nothing to indicate that
However, Zachry did not rely on Section 38.001; rather,        the district court's awarding of attorney's fees to Zachry
Zachry relies on chapter 37 of the civil practice and          was unjust or inequitable, as there was ample evidence to
remedies code and the agreement itself for its authority       support the jury's determination that $ 50,000 in attor-
enabling it to recover attorney's fees.                        ney's fees was reasonable and necessary. Zachry pre-
                                                               sented numerous invoices from the Kleberg Law Firm,
      Next, Fluor alleges that "the declaratory judgment
                                                               which represented Zachry in the matter. These invoices
itself is not a proper avenue in this case and therefore
                                                               detail the expenses Zachry incurred in defending and
cannot provide the basis for [an award of] attorney's
                                                               prosecuting these claims. The invoices show that the
fees." However, Fluor is the party who first brought a
                                                               Kleberg Law Firm billed Zachry for roughly $ 148,743
declaratory judgment action. Fluor's original petition
                                                               for their legal services. Testimony at trial elucidated how
specifically prays that the trial court "declare the dollar
                                                               these fees were incurred. The jury determined that $
effect" of the arbitration award. No particular type of
                                                               50,000 was a reasonable award. There is certainly more
pleading is required by the declaratory judgments act, but
                                                               than a scintilla of evidence to [*15] support this award.
it is clear that Fluor's suit was an action seeking declara-
                                                               Zachry was the prevailing party in a declaratory judg-
tory judgment. See, e.g., Anderson v. McRae, 495
                                                               ment action. Finally, section VI of the arbitration agree-
S.W.2d 351, 358 (Tex. Civ. App.-Texarkana 1973, no
                                                               ment between Fluor and Zachry specifically calls for an
                                                                                                                Page 6
                                              2005 Tex. App. LEXIS 8403, *


award of attorney's fees when one party seeks judicial         ter Cons. Dist., 925 S.W.2d 618, 637, 39 Tex. Sup. Ct. J.
relief. Therefore, when reviewing the entire record, we        858 (Tex. 1996). Accordingly, Fluor's issue regarding the
cannot say that the trial court abused its discretion in       awarding of attorney's fees is overruled.
awarding Zachry attorney's fees.
                                                               CONCLUSION
     Lastly, Fluor attempts to assert that Zachry cannot
recover its attorney's fees because it was not a prevailing        Having overruled both of Fluor's issues on appeal,
party. We conclude that Zachry did prevail in the under-       we affirm the trial court's judgment severing the two
lying cause because Zachry received what it requested,         causes and awarding Zachry attorney's [*16] fees.
that is, an interpretation of the arbitration decision which
                                                                   Rogelio Valdez,
entitled it to contribute only 10% of the settlement fund.
However, we also note that [HN6] under the Act a party             Chief Justice
does not have to prevail to be awarded attorney's fees.
See, e.g., Barshop v. Medina County Underground Wa-
|   | Caution
As of: April 7, 2015 5:40 PM EDT


                               Fresh Coat, Inc. v. Life Forms, Inc.
                                Court of Appeals of Texas, First District, Houston
                      December 31, 2003, Decided ; December 31, 2003, Opinion Issued
                                               NO. 01-03-00730-CV

Reporter
125 S.W.3d 765; 2003 Tex. App. LEXIS 10837; CCH Prod. Liab. Rep. P16,863

FRESH COAT, INC., Appellant v. LIFE FORMS, INC.,            fourth party petition alleging claims against the insulation
Appellee                                                    company for common-law, contractual, and statutory
                                                            indemnity. The builder then filed a motion for summary
Subsequent History: [**1]                                   judgment. In its motion for summary judgment, the
53.7(F) mot. for extension of time filed by, 02/09/2004     builder did not seek summary judgment on its
53.7(F) mot. for extension of time filed by, 03/19/2004     common-law and statutory indemnity claims. However,
53.7(F) mot. for extension of time filed by, 04/16/2004     the trial court granted the builder all of the relief the
                                                            builder had requested and that the trial court was entitled
Prior History: On Appeal from the 295th District Court.     to give. Also, the judgment was a final and appealable
Harris County, Texas. Trial Court Cause No.                 judgment because it clearly and unequivocally disposed
1998-25256-D.                                               of all of the parties and the claims pending in the trial
                                                            court. Thus, because the insulation company did not file
Disposition: Motion to dismiss granted; appeal              its notice of appeal within 30 days of the date the
dismissed.                                                  judgment was signed, and did not seek an extension of
                                                            its appellate deadlines, it did not timely perfect its appeal
Core Terms                                                  and did not properly invoked the appellate court's
                                                            jurisdiction.

trial court, parties, dispose, final judgment, lawsuit,     Outcome
summary judgment motion, indemnity, appealable
judgment, pending claim, unequivocally, class-action        The appellate court dismissed the insulation company's
                                                            appeal for want of jurisdiction.
Case Summary
                                                            LexisNexis® Headnotes
Procedural Posture
                                                               Civil Procedure > Appeals > Appellate Jurisdiction > Final
The 295th District Court, Harris County (Texas), granted       Judgment Rule
summary judgment in favor of appellee home builder on
its claims against appellant insulation company for         HN1 It is well-established that, in general, an appeal
common-law indemnity, contractual indemnity, based          may be taken only from a final judgment; that is, a
on the provisions of the parties' contract, and statutory   judgment that disposes of all pending parties and claims.
indemnity, based on the builder's alleged status as an
innocent retailer. The insulation company appealed.            Civil Procedure > Appeals > Appellate Jurisdiction > Final
                                                               Judgment Rule
Overview
                                                            HN2 For purposes of an appeal, the intent to finally
The builder asserted causes of action for alleged defects   dispose of a case must be unequivocally expressed in
in the design of residential and commercial exterior        the words of the judgment itself. If that intent is clearly
insulation finish systems. The builder asserted claims      expressed in the judgment, then the order is final and
for indemnity against the insulation company. In a          appealable, even though the record does not provide
severed cause, the builder filed a second amended           an adequate basis for rendition of judgment.
                                 125 S.W.3d 765, *765; 2003 Tex. App. LEXIS 10837, **1


    Civil Procedure > Appeals > Appellate Jurisdiction > Final     Opinion
    Judgment Rule

HN3 For purposes of determining whether a judgment                   [*766] Appellant, Fresh Coat, Inc. (Fresh Coat),
is final and appealable, to determine whether an order             challenges the trial court's rendition of summary
disposes of all pending claims and parties, an appellate           judgment in favor of appellee, Life Forms, Inc. (Life
court may also look to the record from the court below.            Forms). Prior to the submission of briefing on the merits
                                                                   by either party, Life Forms filed a motion with this Court
    Civil Procedure > Appeals > Appellate Jurisdiction > Final     seeking to dismiss this appeal for want of jurisdiction. In
    Judgment Rule                                                  its motion to dismiss, Life Forms contends that Fresh
                                                                   Coat failed to timely appeal from the trial court's final
HN4 In a judgment, the inclusion of the language "all              judgment and that, as a result, this Court lacks
relief not expressly granted is denied," standing alone,           jurisdiction over this appeal.
does not indicate finality in a judgment rendered without
a conventional trial on the merits.                                We dismiss the appeal for want of jurisdiction.

    Civil Procedure > Appeals > Appellate Jurisdiction > Final
                                                                   Procedural Background
    Judgment Rule

HN5 In determining whether a judgment is final, in a               Fresh Coat and Life Forms were originally parties to a
case in which an appellate court is uncertain about a              class-action lawsuit pending in the trial court below. 1
trial court's intent in signing a judgment, the appellate          The plaintiffs in that lawsuit asserted causes of action
court may abate the appeal to permit clarification by the          for alleged defects in the design of residential and
trial court.                                                       commercial exterior insulation finish [**2] systems. Life
                                                                   Forms, a home builder, contracted with Fresh Coat to
    Civil Procedure > Appeals > Appellate Jurisdiction >           have Fresh Coat construct and apply such finish
    Interlocutory Orders                                           systems on Life Forms's homes. After it was made a
                                                                   party to the class-action lawsuit, Life Forms asserted
HN6 An express adjudication of all parties and claims in
a case is not interlocutory merely because the record              claims for indemnity against Fresh Coat.
does not afford a legal basis for the adjudication. In
those circumstances, the order must be appealed and                On October 30, 2002, the trial court signed an agreed
reversed.                                                          order severing Life Forms's claims against Fresh Coat
                                                                   into the cause on appeal. 2 As part of its severance
Counsel: FOR APPELLANT: Adam Brett Chambers,                       order, the trial court instructed the parties as follows:
Bateman Pugh, P.L.L.C., Houston, TX. Kevin D. Jewell,              "Life Forms and Freshcoat [sic] agree that their claims
Chamberlain, Hrdlicka, White, Williams, & Martin,                  can be decided on the papers with Life Forms filing its
Houston, TX. Robert H. Bateman, Magenheim,                         motion on or before 12/2/02 and Freshcoat [sic] filing its
Bateman, Robinson, Wrotenbery & Helfand, Houston,                  response on or before 12/12/02."
TX.
                                                                    [**3] In the severed cause, Life Forms subsequently
FOR APPELLEE: Chris E. Ryman, Coats, Rose, yale,                   filed its "Second Amended Fourth Party Petition"
Holm, Ryman & Lee, P.c., Houston, TX.                              alleging claims against Fresh Coat for (1) common-law
                                                                   indemnity; (2) contractual indemnity, based on the
Judges: Terry Jennings, Justice. Panel consists of                 provisions of the parties' contract; and (3) statutory
Chief Justice Radack and Justices Jennings and Higley.             indemnity, based on Life Forms's alleged status as an

Opinion by: Terry Jennings

1
  The original matter is styled McCray, et al. v. Parex, Inc., et al., No. 98-25256, in the 295th Judicial District Court of Harris
County, Texas.
2
    Fresh Coat did not present any affirmative claims for relief against Life Forms.
                                                                                                                      Page 2 of 4
                               125 S.W.3d 765, *766; 2003 Tex. App. LEXIS 10837, **3



"innocent retailer." 3 Life Forms then filed a motion for      Finality of the Judgment
summary judgment arguing that, as a matter of law,
under the provisions of the parties' contract, (1) Fresh       In its motion to dismiss this appeal, Life Forms argues
Coat was obligated to defend and indemnify Life Forms          that the trial court's March 7, 2003 judgment was a final
from the claims against it in the class-action lawsuit, (2)    and appealable judgment because it clearly and
Fresh Coat's obligation to indemnify Life Forms was            unequivocally disposed of all parties and claims pending
triggered by the claims brought against it in that lawsuit,    in the trial court. Additionally, Life Forms argues that, to
and (3) Fresh Coat was obligated to reimburse Life             the extent the trial court's judgment granted more relief
Forms for its attorney's fees and costs incurred, and          than Life Forms was entitled to receive, the judgment
settlements paid, as a result of that lawsuit. As exhibits     was arguably erroneous, but final and appealable
to its motion for summary judgment, Life Forms attached        nonetheless.
affidavits and other [*767] records documenting its
claim for attorney's fees, costs, and settlements totaling     HN1 It is well-established that, in general, an appeal
$ 186,819.43 paid as a result of the claims brought            may be taken only from a final judgment; that is, a
against Life Forms in the class-action lawsuit and             judgment that disposes [**6] of all pending parties and
incurred in pursuit of its indemnity claims against Fresh      claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191,
Coat. In its [**4] motion for summary judgment, Life           195, 44 Tex. Sup. Ct. J. 364 (Tex. 2001). HN2 The intent
Forms did not seek summary judgment on its                     to finally dispose of the case must be unequivocally
common-law and statutory indemnity claims. Fresh Coat          expressed in the words of the judgment itself. Id. at 200.
filed a response to the motion for summary judgment            If that intent is clearly expressed in the judgment, then
and disputed Life Forms's contractual indemnity claims.        the order is final and appealable, even though the
                                                               record does not provide an adequate basis for rendition
On March 7, 2003, the trial court signed a "Final              of judgment. Id. In Lehmann, the court conceded that,
Judgment" which reads as follows:                              HN3 to determine whether an order disposes of all
                                                               pending claims and parties, an appellate court may also
The Court has considered and decided to grant Life             look to the record from the court below. Id. at 205-06.
Forms Incorporated's Motion for Summary Judgment.
Life Forms Incorporated's Motion for Summary                   The judgment at issue here, entitled "Final Judgment,"
Judgment is granted.                                           contains a "Mother Hubbard" clause, e.g., "All relief not
                                                               expressly granted is denied." See id. at 203. The Texas
It is ADJUDGED that Life Forms, Incorporated have              Supreme Court has held that HN4 the inclusion of such
and recover judgment against Fresh[]Coat, Inc. for $           language, standing alone, does not indicate finality in a
186,819.43, together with all costs of court and interest      judgment rendered, as here, without a conventional trial
on this judgment at the rate of ten percent (10%) per          on the merits. Id. at 203-04.
annum from the date of judgment until paid. This is a
final judgment disposing of all parties and all issues. All    The judgment also clearly states that it "is a final
relief not expressly [**5] granted is denied.                  judgment disposing of all parties and all issues." Fresh
                                                               Coat argues that this language is not [**7] an
In June 2003, Fresh Coat filed a "Motion for Entry of          unequivocal statement of finality, and in support of its
Appealable Judgment" in which it argued that, because          argument [*768] relies on the Texas Supreme Court's
the trial court's March 7, 2003 judgment did not dispose       suggestion in Lehmann that, to avoid any doubt as to
of all pending claims, it was not a final, appealable          the finality of its judgment, a trial court could include a
judgment. In its motion, Fresh Coat requested that the         statement such as, "'This judgment finally disposes of
trial court sign a judgment that "clearly and                  all parties and all claims and is appealable.'" Id. at 206
unequivocally" disposed of the entire case. Following a        (emphasis added).
hearing, the trial court denied the motion, for want of
jurisdiction, on July 7, 2003. The following day, Fresh        Here, however, the fact that the trial court did not
Coat filed its notice of appeal from the trial court's March   expressly state that its judgment was "appealable" does
7, 2003 judgment.                                              not render the court's intent ambiguous. The issue

3
   See TEX. CIV. PRAC. & REM. CODE ANN. § 82.002 (Vernon 1997); TEX. BUS. & COM. CODE ANN. § 17.555 (Vernon
2002).
                                                                                                               Page 3 of 4
                                 125 S.W.3d 765, *768; 2003 Tex. App. LEXIS 10837, **7



presented to the trial court by Life Forms's motion for             case is not interlocutory merely because the record
summary judgment was whether Fresh Coat was                         does not afford a legal basis for the adjudication. In
contractually obligated to indemnify Life Forms for the             those circumstances, the order must be appealed and
attorney's fees, costs, and settlements incurred and                reversed." Id. If Fresh Coat had any question as to the
paid by Life Forms as a result of the class-action lawsuit.         finality of the trial court's judgment, it could have either
In its judgment, the trial court awarded, to the penny, the
                                                                    requested [**9] that the trial court clarify its judgment
amount of damages which Life Forms claimed it was
                                                                    while the court retained plenary power or perfected a
entitled to recover from Fresh Coat, and the trial court
                                                                    timely appeal from the judgment. It did neither.
could not have granted any more relief to Life Forms
than it did. This judgment clearly and finally disposed of
all parties and all pending claims because Life Forms               Based on the language of the trial court's March 7, 2003
could recover no more than the amount awarded in the                judgment and the record presented, we hold that, as of
judgment, [**8] which was everything it sought.                     the date it was signed, the judgment was a final and
                                                                    appealable judgment disposing of all parties and
Moreover, the Texas Supreme Court has suggested                     pending claims. Accordingly, because Fresh Coat did
that, HN5 in a case in which we are uncertain about the             not file its notice of appeal within 30 days of the date the
trial court's intent in signing a judgment, we may abate
                                                                    judgment was signed, and did not seek an extension of
the appeal to permit clarification by the trial court. Id.
                                                                    its appellate deadlines, it has not timely perfected its
(citing TEX. R. APP. P. 27.2). We need not do so in this
                                                                    appeal in this cause and has not properly invoked this
case because, at the hearing on Fresh Coat's "Motion
                                                                    Court's appellate jurisdiction. See TEX. R. APP. P. 26.1.
for Entry of Appealable Judgment," the trial court stated           4
as follows: "I believe it was a final judgment. You are
asking me about my belief. My belief was it was a final
judgment." Additionally, the trial court denied Fresh               Conclusion
Coat's motion "for lack of trial court jurisdiction." Thus,
the record indicates that the trial court clearly and               We grant Life Forms's motion and dismiss the appeal
unequivocally expressed its intent to dispose of all                for want of jurisdiction.
parties and pending claims in its March 7, 2003
judgment.                                                           [**10] Terry Jennings


Finally, as the Texas Supreme Court has noted, HN6                  Justice
"An express adjudication of all parties and claims in a




4
  Fresh Coat did not file a motion for new trial or request that the trial court prepare findings of fact and conclusions of law. See
TEX. R. APP. P. 26.1(a).
                                                                                                                        Page 4 of 4
                                                                                                                      Page 1




Caution
As of: Mar 30, 2015

                  ALFREDO P. GARCIA d/b/a GARCIA TRUCKING COMPANY, Petitioner, v.
                              KASTNER FARMS, INC., ET AL., Respondents

                                                        No. C-8279

                                            SUPREME COURT OF TEXAS

                               774 S.W.2d 668; 1989 Tex. LEXIS 97; 32 Tex. Sup. J. 573


                                                  July 12, 1989, Decided

PRIOR HISTORY:             [**1]    From Live Oak Coun-        could be filed after he received the trial court's findings
ty Thirteenth District.                                        of fact and [**2] conclusions of law. Garcia explained
                                                               that he could not adequately determine the propriety or
                                                               necessity of an appeal until he had received and reviewed
COUNSEL: Mr. W. Michael Murray, Cackowski &                    these findings of fact and conclusions of law.
Murray, Austin, Texas, Attorneys for petitioner.
                                                                   In determining whether to grant Garcia's motion, the
                                                               court of appeals considered Rule 41(a)(2):
Mr. James M. Whitten, Law Offices of James M. Whit-
ten P.C., Sinton, Texas, Attorneys for respondents.

JUDGES: C.L. Ray, Justice.
                                                                      An extension of time may be granted by
                                                                      the appellate court for late filing of a cost
OPINION BY: RAY
                                                                      bond or notice of appeal or making the
                                                                      deposit required by paragraph (a)(1) or for
OPINION
                                                                      filing the affidavit, if such bond or notice
      [*669] The issue presented is whether Alfredo P.                of appeal is filed, deposit is made, or af-
Garcia has reasonably explained his failure to timely file            fidavit is filed not later than fifteen days
a cost bond for appeal. Tex. R. App. P. 41(a)(2). The                 after the last day allowed and, within the
court of appeals held he had not and dismissed Garcia's               same period, a motion is filed in the ap-
appeal for want of jurisdiction. 761 S.W.2d 444. We re-               pellate court reasonably explaining the
verse the judgment of the court of appeals and remand                 need for such extension.
the cause to that court for further proceedings.
     Garcia sued Kastner Farms, Inc. for breach of con-
                                                               The court of appeals overruled Garcia's motion and dis-
tract, and the trial court rendered judgment that Garcia
                                                               missed the appeal for want of jurisdiction, concluding
take nothing. Because Garcia did not file a motion for
                                                               that a misunderstanding of the law was not a reasonable
new trial, the cost bond was due to be filed within thirty
                                                               explanation. 761 S.W.2d at 446. The court of appeals
days. Tex. R. App. P. 41(a)(1). Garcia did not file his cost
                                                               purported to follow the leading case of Meshwert v.
bond within the thirty-day period; however, he did file a
                                                               Meshwert, 549 S.W.2d 383 (Tex. 1977), and also relied
motion to extend time to file his cost bond. Garcia was
late in filing his bond because he believed the cost bond
                                                                                                                     Page 2
                                      774 S.W.2d 668, *; 1989 Tex. LEXIS 97, **;
                                                 32 Tex. Sup. J. 573

heavily on Home Ins. Co. v. Espinoza, 644 S.W.2d 44           ion in Sloan v. Passman, which said that "the require-
(Tex. App. -- Corpus Christi 1982, writ ref'd n.r.e.).        ment of a reasonable explanation implies no stricter
                                                              standard than that applicable to avoidance of a default
      [**3] In Meshwert, we defined the phrase "rea-
                                                              judgment." 538 S.W.2d at 1. Under this standard:
sonably explaining," to mean "any plausible statement of
circumstances indicating that failure to file within the
                                                                        Any plausible statement of circum-
[required] period was not deliberate or intentional, but
                                                                     stances indicating that failure to file . . .
was the result of inadvertence, mistake or mischance."
                                                                     was not deliberate or intentional, but was
549 S.W.2d at 384. While the definition of reasonable
                                                                     the result of inadvertence, mistake, [**5]
explanation is settled, the courts of appeals have not ap-
                                                                     or mischance, [would] be accepted as a
plied the definition consistently. Compare Heritage Life
                                                                     reasonable explanation, even though
Ins. Co. v. Heritage Group Holding Corp., 751 S.W.2d
                                                                     counsel or his secretary may appear to
229 (Tex. App. -- Dallas 1988, writ denied) (holding that
                                                                     have been lacking in that degree of dili-
any conduct short of deliberate or intentional noncom-
                                                                     gence which careful practitioners normal-
pliance qualifies as inadvertence, mistake or mischance
                                                                     ly exercise.
-- even if that conduct can also be characterized as pro-
fessional [*670] negligence) with Home Ins. Co. v.
Espinoza, 644 S.W.2d 44 (Tex. Civ. App. -- Corpus
                                                              Id. This liberal standard of review encompasses the neg-
Christi 1982, writ ref'd n.r.e.) (holding that failure to
                                                              ligence of counsel as a reasonable explanation for the
adequately familiarize oneself with the basic rules of
                                                              necessity of an extension. See Heritage Life, 751 S.W.2d
appellate procedure is not a reasonable explanation).
                                                              at 231-32; Stricklin, 547 S.W.2d at 339-40. Thus, the
     In Espinoza, the attorney impliedly admitted that she    proper focus under Meshwert is on a lack of deliberate or
was mistaken regarding the requirements under the rule,       intentional failure to comply. See Heritage Life, 751
somehow having gleaned the impression that the cost           S.W.2d at 232; Meshwert, 549 S.W.2d at 384. Any con-
bond need not be filed if a hearing [**4] on the motion       duct short of deliberate or intentional noncompliance
for new trial is still pending. The court of appeals in Es-   qualifies as inadvertence, mistake or mischance -- even if
pinoza said that a misunderstanding of the law was not a      that conduct can also be characterized as professional
reasonable explanation. We believe that Espinoza repre-       negligence. See Heritage Life, 751 S.W.2d at 232.
sents an unduly restrictive view of Rule 41(a)(2).
                                                                   We conclude that the view espoused in Espinoza is
     This court in Meshwert recognized that the reasona-      too strict and that the more lenient standard enunciated in
ble explanation standard was a relaxed requirement from       Heritage Life is correct. In applying the Heritage Life
the old standard of good cause. 549 S.W.2d at 384.            standard, we have determined Garcia's attempted late
Meshwert followed the reasoning of the dissent in Sloan       filing was not intentional or deliberate, but was due to
v. Passman, 536 S.W.2d 575 (Tex. Civ. App. -- Dallas          the attorney's misunderstanding of the law. Accordingly,
1976, no writ) (Guittard, C.J., dissenting at 538 S.W.2d      we [**6] hold that the explanation offered is a reasona-
1). Sloan v. Passman was specifically overruled by the        ble one within the ambit of rule 41(a)(2).
Dallas Court of Civil Appeals in United States Fire Ins.
                                                                  We reverse the judgment of the court of appeals and
Co. v. Stricklin, 547 S.W.2d 338 (Tex. Civ. App. -- Dal-
                                                              remand the cause to that court for further proceedings.
las 1977, no writ). Stricklin adopted the dissenting opin-
|   | Caution
As of: April 7, 2015 5:42 PM EDT


                                    Gardner v. U.S. Imaging, Inc.
                                              Supreme Court of Texas
                                      December 19, 2008, Opinion Delivered
                                                    NO. 08-0268

Reporter
274 S.W.3d 669; 2008 Tex. LEXIS 1138; 52 Tex. Sup. J. 229

CRAIG GARDNER AND THELMA GARDNER,                            patient contracting spinal meningitis, which caused his
PETITIONERS, v. U.S. IMAGING, INC. D/B/A SADI                hearing loss. Both the physician and the health care
PAIN MANAGEMENT AND BERNEY KESZLER, M.D.,                    facility objected to the patient's expert report, and they
RESPONDENTS                                                  moved for dismissal under Tex. Civ. Prac. & Rem. Code
                                                             Ann. § 74.351(b). The health care facility also
Subsequent History: Reported at Gardner v. U.S.              complained that it was not timely served with the report.
Imaging Inc., 2008 Tex. LEXIS 1155 (Tex., Dec. 19,           Nevertheless, the health care facility had defaulted, and
2008)                                                        it made little sense to require service of the expert report
                                                             on a party who by default had admitted to the allegations.
Prior History: [**1] ON PETITION FOR REVIEW                  When the health care facility failed to timely answer the
FROM THE COURT OF APPEALS FOR THE FOURTH                     suit, the statutory period was tolled until the health care
                                                             facility made an appearance. The expert report was
DISTRICT OF TEXAS.
                                                             served well within the statutory period. Also, the report
U.S. Imaging, Inc. v. Gardner, 274 S.W.3d 693, 2007
                                                             was sufficient because the health care facility's liability
Tex. App. LEXIS 9998 (Tex. App. San Antonio, Dec. 28,
                                                             was vicarious through the physician.
2007)
                                                             Outcome
Core Terms
                                                             The supreme court reversed the intermediate appellate
                                                             court, and the matter was remanded to the trial court for
expert report, default judgment, trial court, deficient      further proceedings consistent with the opinion.

Case Summary                                                 LexisNexis® Headnotes
Procedural Posture                                             Evidence > ... > Testimony > Expert Witnesses > General
                                                               Overview
Petitioner patient and petitioner wife brought a health
                                                               Healthcare Law > ... > Actions Against Facilities > Facility
care liability suit against respondent physician and
                                                               Liability > General Overview
respondent health care facility, alleging that the
physician was negligent and failed to obtain the patient's     Healthcare Law > Healthcare Litigation > Actions Against
informed consent. The trial court denied a motion to           Healthcare Workers > Doctors & Physicians
dismiss the suit, but the Court of Appeals for the Fourth      Torts > Malpractice & Professional Liability > Healthcare
District of Texas determined an expert report was              Providers
deficient and ordered the case dismissed. Review was
sought.                                                      HN1 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)
                                                             provides that a health care liability suit must be
Overview                                                     dismissed if a non-compliant report is served, subject to
                                                             the availability of one thirty-day extension to cure under
The physician performed a lumbar epidural procedure          Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).
on the patient. The patient and his wife served an expert
report on the physician and the health care facility. The      Evidence > ... > Testimony > Expert Witnesses > General
patient contended the physician's actions led to the           Overview
                                   274 S.W.3d 669, *669; 2008 Tex. LEXIS 1138, **1


  Healthcare Law > ... > Actions Against Facilities > Facility   performed a lumbar epidural procedure on Craig, and
  Liability > General Overview                                   U.S. Imaging, Inc. d/b/a SADI Pain Management
  Healthcare Law > Healthcare Litigation > Actions Against       ("SADI"), the owner and operator of the facility where
  Healthcare Workers > Doctors & Physicians                      the procedure was performed. The Gardners served an
                                                                 expert report on Dr. Keszler and SADI, who both
  Torts > Malpractice & Professional Liability > Healthcare
                                                                 contested the report as untimely and deficient. See
  Providers
                                                                 TEX. CIV. PRAC. & REM. CODE § 74.351(a). The trial
HN2 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)                 court denied the defendants' motion to dismiss the suit,
states that, within 120 days of filing an original petition,     but the court of appeals determined the report was
a claimant must serve on each party or the party's               deficient and ordered the case dismissed. S.W.3d at .
attorney one or more expert reports.                             Although we do not disturb the court of appeals'
                                                                 determination that the report was deficient, in light of
  Civil Procedure > ... > Pretrial Judgments > Default &         our decision in Leland v. Brandal, 257 S.W.3d 204 (Tex.
  Default Judgments > Relief From Default                        2008), we vacate the court of appeals' judgment and
                                                                 remand the case to the trial court to consider granting
HN3 For a default judgment to be set aside, the plaintiff        the Gardners an extension to cure under section
must be placed in no worse position than he would have           74.351(c) of the Texas Civil Practice and Remedies
been had an answer been filed.                                   Code.

  Evidence > ... > Testimony > Expert Witnesses > General
                                                                 On August 24, 2006, the Gardners filed this suit alleging
  Overview                                                       that Dr. Keszler was negligent in choosing to
                                                                  [**2] perform a lumbar epidural procedure, that he did
  Healthcare Law > ... > Actions Against Facilities > Facility   not conform to the standard of care while performing the
  Liability > General Overview
                                                                 procedure, and that he failed to obtain Craig Gardner's
  Torts > Malpractice & Professional Liability > Healthcare      informed consent. The Gardners contend Dr. Keszler's
  Providers                                                      actions led to Craig's contracting spinal meningitis,
                                                                 which caused his hearing loss. Dr. Keszler timely
HN4 When a party's alleged health care liability is              answered the suit, and pursuant to section 74.351(a),
purely vicarious, a report that adequately implicates the        the Gardners served Dr. Keszler with an expert report
actions of that party's agents or employees is sufficient.       from Dr. Edson O. Parker (the "Parker report") within
                                                                 120 days of filing suit. TEX. CIV. PRAC. & REM. CODE
Counsel: For Mr. Craig Gardner, PETITIONER: Ms.                  § 74.351(a).
Elizabeth Leslie Higginbotham, Higginbotham &
Associates, Austin, TX.; Mr. William M. Nichols, William         Unlike Dr. Keszler, SADI failed to timely answer the suit
M. Nichols, P.C., San Antonio, TX.                               and, before the 120-day period for filing an expert report
                                                                 expired on December 22, 2006, the Gardners moved
For U.S. Imaging Inc., RESPONDENT: Mr. Lynn Cullen               for default judgment against SADI. The trial court
Moore, Ms. Debra Ibarra Mayfield, Mr. Nathan                     rendered a default judgment on December 14, 2006,
Montgomer Rymer, Rymer Moore Jackson & Echols,                   and severed the suit against SADI. Upon learning of the
P.C., Houston, TX.                                               default judgment, SADI filed an answer in the severed
                                                                 suit, along with a motion for new trial and a motion to set
For Mr. Berney Keszler, M.D., RESPONDENT: Mr.                    aside the default judgment. Pursuant to the parties'
Michael J. Mooris, Morris & Allen, New Braunfels, TX.;           agreement, the court, on February 8, 2007, granted a
Ms. Stephanie S. Bascon, Law Office of Stephanie S.              new trial and set aside the default judgment. In
Bascon PLLC, New Braunfels, TX.                                  accordance with the agreed order, the Gardners
                                                                 nonsuited the severed [**3] suit, SADI filed an answer
                                                                 in the original suit on February 12, and the Gardners
Opinion                                                          filed an amended petition in the original suit on February
                                                                 16. On March 20, the Gardners served SADI with the
[*670] PER CURIAM                                                expert report they had served on Dr. Keszler.
Craig Gardner and Thelma Gardner brought this health             Dr. Keszler and SADI objected to the report and moved
care liability suit against Dr. Berney Keszler, who              for dismissal under HN1 section 74.351(b), which
                                                                                                             Page 2 of 4
                                   274 S.W.3d 669, *670; 2008 Tex. LEXIS 1138, **3



provides that a health care liability suit must be              purpose to inform the served party of the conduct called
dismissed if a non-compliant report is served, subject to       into question and to provide a basis for the trial court to
the availability of one thirty-day extension to cure under      conclude that the plaintiff's claims have merit, it makes
section 74.351(c). TEX. CIV. PRAC. & REM. CODE §                little sense to require service of an expert report on a
74.351(b), (c); see Lewis v. Funderburk, 253 S.W.3d             party who by default has admitted the plaintiff's
204, 207 (Tex. 2008). The trial court, presumably finding       allegations. Moreover, our jurisprudence requires that,
that the report complied with the statute, denied the           HN3 for a [**6] default judgment to be set aside, the
defendants' motions to dismiss. The court of appeals            plaintiff must be placed "in no worse position than he
reversed, however, reasoning that the report was                would have been had an answer been filed . . . ."
deficient because the discussion of causation was               Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388,
conclusory. S.W.3d at . The court remanded the case             133 S.W.2d 124, 125 (Tex. 1939). Accordingly, when
to the trial court to award the defendants reasonable           SADI failed to timely answer the Gardners' suit by the
attorneys' fees and costs pursuant to section 74.351(b).        Monday following the expiration of twenty days after it
Id. at . In their motion for rehearing before the court of      was served, see TEX. R. CIV. P. 99(b), the statutory
appeals, [*671] the Gardners argued that, in light of our       period for serving it with an expert report was tolled until
decision in Leland, 257 S.W.3d 204, the court of                such time as SADI made an appearance. Once the
 [**4] appeals should have also remanded the suit to the        default judgment was set aside and SADI filed an
trial court to consider granting a thirty-day extension to      answer, tolling ended and the Gardners had 100 days
cure. 1 We agree, and reject the defendants' contention         remaining in which to serve SADI with an expert report.
that the Parker report is so deficient as to constitute no      SADI filed an answer in the original suit on February 12,
report at all. See Ogletree v. Matthews, 262 S.W.3d             and the Gardners served it with an expert report on
316, 323 (Tex. 2007) (WILLETT, J., concurring);                 March 20, well within the remaining statutory period.
Funderburk, 253 S.W.3d at 211 (WILLETT, J.,                     SADI additionally contends it was not served with an
concurring). 2                                                  expert report because the report that was served does
SADI asserts an additional challenge, contending it was         not mention SADI or implicate its behavior. The
not served with an expert report within the statutory           Gardners respond that because SADI's alleged liability
deadline. HN2 Section 74.351(a) states that, within 120         is purely vicarious in nature, the report as to Dr. Keszler
days of filing an original petition, a claimant must "serve     was sufficient. To the extent the allegations against
 [**5] on each party or the party's attorney one or more        SADI are based upon respondeat superior, we agree
expert reports." TEX. CIV. PRAC. & REM. CODE §                  with [**7] the Gardners. HN4 When a party's alleged
74.351(a). Because SADI was named in the original               health care liability is purely vicarious, [*672] a report
petition as a party to this suit, the Gardners were             that adequately implicates the actions of that party's
required to serve it with a report before the statutory         agents or employees is sufficient. See Univ. of Tex.
period expired on December 22, 2006, and it is                  Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex.
undisputed they failed to do so. However, before the            App.--Houston [1st Dist.] 2008, no pet.); Univ. of Tex.
120-day period expired, SADI defaulted and judgment             Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.
was taken against it. The statute does not specify the          App.--Dallas 2006, no pet.); Casados v. Harris Methodist
effect of a default judgment on the 120-day period. But         H-E-B, No. 2-05-080-CV, 2006 Tex. App. LEXIS 6357,
the effect of default on a plaintiff's claim for unliquidated   at *12-*13 (Tex. App.--Fort Worth July 20, 2006, no
damages is clear: once a default judgment is taken, all         pet.)(not designated for publication) . Thus, to the extent
factual allegations contained in the petition, except the       the Gardners allege that SADI is liable only vicariously
amount of damages, are deemed admitted. See Holt                for Dr. Keszler's actions, the expert report requirement
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.         is fulfilled as to SADI if the report is adequate as to Dr.
1992). In light of the expert-report requirement's dual         Keszler.

1
    Because the Gardners argued that the trial court's decision should have been affirmed, and remand constitutes lesser
included relief, the Gardners need not have requested an extension earlier to preserve such relief. See Martinez-Partido v.
Methodist Specialty & Transplant Hosp., 267 S.W.3d 881 (Tex. 2008).
2
   The defendants additionally contend the report is deficient because Dr. Parker was not qualified to render an opinion.
Because such a deficiency would be subject to cure on remand, we do not address the defendants' challenge to Dr. Parker's
qualifications. Funderburk, 253 S.W.3d at 207.
                                                                                                                Page 3 of 4
                               274 S.W.3d 669, *672; 2008 Tex. LEXIS 1138, **7



We grant the petition and, without hearing oral           OPINION DELIVERED: December 19, 2008
argument, reverse the court of appeals' judgment and
remand to the trial court for further proceedings
consistent with this opinion. See TEX. R. APP. P. 59.1,
60.2(f).




                                                                                             Page 4 of 4
                                                                                                               Page 1




                                                  1 of 1 DOCUMENT


                          RAYLEE GILSTRAP, Appellant v. JASON CALLEY, Appellee

                                                 NO. 14-04-01064-CV

                  COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                             2004 Tex. App. LEXIS 11035


                                         December 9, 2004, Rendered
                                  December 9, 2004, Memorandum Opinion Filed

PRIOR HISTORY:            [*1] On Appeal from the            Civil Procedure > Judgments > Relief From Judgment
405th District Court. Galveston County, Texas. Trial         > Motions for New Trials
Court Cause No. 01CV1010.                                    Civil Procedure > Appeals > Reviewability > Time Lim-
                                                             itations
DISPOSITION:         Appeal is dismissed.                    Governments > Legislation > Statutes of Limitations >
                                                             Time Limitations
CASE SUMMARY:                                                [HN1] A notice of appeal must be filed within 30 days
                                                             after the judgment is signed when appellant has not filed
                                                             a timely motion for new trial, motion to modify the
PROCEDURAL POSTURE: Appellant, a pro se liti-                judgment, motion to reinstate, or request for findings of
gant, sought review of a judgment from the 405th Dis-        fact and conclusion of law. Tex. R. App. P. 26.1.
trict Court, Galveston County (Texas), in a civil case.

OVERVIEW: No motion for new trial was filed. The             Civil Procedure > Pleading & Practice > Pleadings >
notice of appeal was filed more than 30 days after entry     Time Limitations > Extensions
of judgment; hence, it was untimely under Tex. R. App.       Civil Procedure > Appeals > Reviewability > Time Lim-
P. 26.1. Moreover, the notice of appeal was not filed        itations
within the 15-day grace period provided by Tex. R. App.      Governments > Legislation > Statutes of Limitations >
P. 26.3. The litigant claimed that he did not receive no-    Time Limitations
tice of entry of final judgment; however, he had not         [HN2] A motion for extension of time is necessarily im-
sought to establish late notice of a judgment under the      plied when an appellant, acting in good faith, files a no-
procedures set out in Tex. R. Civ. P. 306a(4), (5). The      tice of appeal beyond the time allowed by Tex. R. App. P.
court observed that pro se litigants were held to the same   26.1, but within the 15-day grace period provided by
standards as licensed attorneys and were required to         Rule 26.3 for filing a motion for extension of time.
comply with all applicable rules of procedure. Accord-       However, the appellant must offer a reasonable explana-
ingly, the court declined to extend the deadline for per-    tion for failing to file the notice of appeal in a timely
fecting the appeal.                                          manner. Tex. R. App. P. 26.3, 10.5(b)(1)(C).

OUTCOME: The court dismissed the appeal.
                                                             Civil Procedure > Parties > Self-Representation >
LexisNexis(R) Headnotes                                      General Overview
                                                             [HN3] Pro se litigants are held to the same standards as
                                                             licensed attorneys, and therefore they must comply with
                                                             all applicable rules of procedure.
                                                                                                                 Page 2
                                            2004 Tex. App. LEXIS 11035, *


                                                             timely manner. See TEX. R. APP. P. 26.3, 10.5(b)(1)(C);
COUNSEL: For APPELLANTS: Raylee Gilstrap, Iowa               Verburgt, 959 S.W.2d at 617-18. Appellant's notice of
Park, TX.                                                    appeal was not filed within the fifteen-day period pro-
                                                             vided by Rule 26.3
For APPELLEES: Jerry A. Pusch, Kurt Arbuckle, Hou-
                                                                  On November 4, 2004, notification was transmitted
ston, TX.
                                                             to all parties of the Court's intent to dismiss the appeal
                                                             for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
JUDGES: Panel consists of Justices Anderson, Hudson,
                                                             Appellant filed a response, claiming that he was never
and Frost.
                                                             apprised of entry of final judgment. Because appellant
                                                             filed a notice of appeal, he did, at some point, become
OPINION
                                                             aware of entry of final judgment. If appellant did not
    MEMORANDUM OPINION                                       receive timely notice of the trial court judgment, he
                                                             could have extended the deadlines for appeal by follow-
     This is an attempted appeal from a judgment, signed
                                                             ing the procedures set out in TEX. R. CIV. P.
June 11, 2003. No motion for new trial was filed. Appel-
                                                             306a(4)-(5). [HN3] Pro se litigants are held to the same
lant's notice of appeal was filed on October 4, 2004.
                                                             standards as licensed attorneys, and therefore they must
     [HN1] The notice of appeal must be filed within         comply with all applicable Rules of procedure. Mans-
thirty days after the judgment is signed when appellant      field State Bank v. Cohn, 573 S.W.2d 181, 184-85, 22
has not filed a timely motion for new trial, motion to       Tex. Sup. Ct. J. 43 (Tex. 1978) [*3] (holding that liti-
modify the judgment, motion to reinstate, or request for     gants who represent themselves must comply with pro-
findings of fact and conclusion of law. See TEX. R. APP.     cedures established by Rules notwithstanding fact that
P. 26.1                                                      they are not licensed attorneys). Because appellant failed
                                                             to follow the procedures for establishing late notice of
     Appellant's notice of appeal was not filed timely.      the judgment, the deadline for perfecting the appeal was
[HN2] A motion for extension of time is necessarily im-
                                                             not extended. We find that appellant's response to our
plied when an appellant, acting in good faith, files a no-
                                                             notice regarding the untimely notice of appeal fails to
tice of appeal beyond the time allowed by rule 26.1, but     demonstrate that this Court has jurisdiction to entertain
within the fifteen-day grace period provided by Rule 26.3    the appeal.
for filing a motion for extension of time. See Verburgt
v. Dorner, 959 S.W.2d 615, 617-18, 41 Tex. Sup. Ct. J.           Accordingly, the appeal is ordered dismissed.
138 (1997) [*2] (construing the predecessor to Rule
                                                                 PER CURIAM
26). However, the appellant must offer a reasonable ex-
planation for failing to file the notice of appeal in a
|   | Positive
As of: April 7, 2015 5:43 PM EDT


                                               Ginn v. Forrester
                                                Supreme Court of Texas
                                          March 27, 2009, Opinion Delivered
                                                      NO. 08-0163

Reporter
282 S.W.3d 430; 2009 Tex. LEXIS 112; 52 Tex. Sup. J. 491

EMMANUEL GINN, A&R TRANSPORT, INC., KEITH                      that the clerk's notation that there was no notice in the
JACKSON, STEVE BRANTLEY, PETITIONERS, v.                       record affirmatively demonstrated the trial court's failure
JEFF FORRESTER AND KIM FORRESTER,                              to notify plaintiffs of the impending and subsequent
RESPONDENTS                                                    dismissal, the court of appeals reversed the dismissal.
                                                               The court agreed with defendants that this was error.
Prior History: [**1] ON PETITION FOR REVIEW                    Although the clerk was required to give notice of the
FROM THE COURT OF APPEALS FOR THE                              dismissal, the clerk was not required to enter any such
FOURTEENTH DISTRICT OF TEXAS.                                  notice on the record. A record that was silent was
Forrester v. Ginn, 282 S.W.3d 513, 2008 Tex. App.              insufficient for a restricted appeal. In this case, the
LEXIS 125 (Tex. App. Houston 14th Dist., Jan. 10,              clerk's notation that the record was silent as to the
2008)                                                          giving of notices was not more that an affirmation of a
                                                               silent record, which was insufficient to establish
Core Terms                                                     reversible error in a restricted appeal.

                                                               Outcome
notice, trial court, notation, want of prosecution, face of
                                                               The court reversed the court of appeals' judgment and
the record, court of appeals
                                                               rendered judgment dismissing the case.

Case Summary                                                   LexisNexis® Headnotes
Procedural Posture
                                                                 Civil Procedure > ... > Standards of Review > Plain Error >
Plaintiffs filed suit against defendants for damages             Obvious Errors
arising out of a traffic accident. The trial court dismissed
                                                               HN1 A restricted appeal requires error that is apparent
the case for want of prosecution. The plaintiffs filed a
                                                               on the face of the record; error that is merely inferred
notice of restricted appeal. The Court of Appeals for the
                                                               will not suffice.
14th District of Texas reversed the dismissal.
Defendants appealed, contending the court of appeals             Civil Procedure > Dismissal > Involuntary Dismissals >
erred in holding that the requirements for a restricted          Failure to Prosecute
appeal were met.
                                                               HN2 Before a trial court may properly dismiss a case for
Overview                                                       want of prosecution, notice of the court's intention to
                                                               dismiss and the date and place of the dismissal hearing
Plaintiffs' restricted appeal required an error that was       shall be sent by the clerk to each attorney of record.
apparent on the face of the record under Tex. R. App. P.       Tex. R. Civ. P. 165a(1).
30. Plaintiffs contended that they never received notice
of the dismissal for want of prosecution as required by          Civil Procedure > ... > Standards of Review > Plain Error >
Tex. R. Civ. P. 165a(1) and Tex. R. Civ. P. 306a(3). The         Obvious Errors
court of appeals suggested that they supplement the
record with a notation from the clerk that no notice was       HN3 When a party claims in a restricted appeal that
contained in the record, and plaintiffs did so. Concluding     required notice was not given or a required hearing was
                                    282 S.W.3d 430, *430; 2009 Tex. LEXIS 112, **1



never held, the error must appear on the face of the             of the record. Accordingly, we reverse the court of
record. Tex. R. App. P. 30. When extrinsic evidence is           appeals' judgment and render judgment dismissing the
necessary to challenge a judgment, the appropriate               case.
remedy is by motion for new trial or by bill of review filed
in the trial court so that the trial court has the opportunity   Jeff and Kim Forrester filed suit against Emmanuel
to consider and weigh factual evidence.                          Ginn, A&R Transport, Inc., Keith Jackson, and Steve
                                                                 Brantley (collectively Ginn) on January 29, 2004, for
   Civil Procedure > Dismissal > Involuntary Dismissals >        damages arising out of a traffic accident. On May 18,
   Failure to Prosecute                                          2005, the trial court notified all parties that unless either
   Civil Procedure > ... > Standards of Review > Plain Error >   a judgment [**2] or scheduling order was signed or a
   Obvious Errors                                                verified motion to retain was filed by June 27, the case
                                                                 would be dismissed for want of prosecution. On June
   Governments > Courts > Clerks of Court
                                                                 17, Forrester filed a verified motion to retain the case,
HN4 As to what constitutes error on the face of the              which the trial court granted after inserting the words
record for purposes of Tex. R. App. P. 30, silence is not        "for 60 days" at the end of the paragraph ordering
enough. The rules governing dismissals for want of               retention. The trial court subsequently granted
prosecution direct the district clerk to mail notice             Forrester's [*432] motion to substitute counsel, but the
containing the date and place of hearing at which the            record reflects no further activity until December 2 when
court intends to dismiss the case, Tex. R. Civ. P. 165a(1),      the trial court dismissed the case for want of prosecution.
and a similar notice of the signing of the dismissal order,      Six months later, Forrester filed a notice of restricted
Tex. R. Civ. P. 306a(3). But the rules do not impose             appeal.
upon the clerk an affirmative duty to record the mailing         The court of appeals initially denied Forrester's restricted
of the required notices; accordingly, the absence of             appeal for failure to demonstrate error apparent on the
proof in the record that notice was provided does not            face of the record, but suggested that this requirement
establish error on the face of the record.                       might be satisfied by a notation from the trial court clerk
                                                                 indicating that no documents were available to show
Counsel: For Ginn, Emmanuel, Petitioner: Mr. Edward              the notice allegedly not given or the record of the
E. Rundell, Gold, Weems, Bruser, Sues & Rundell,                 hearing allegedly not had. Forrester v. Ginn, No.
Alexandria LA.                                                   14-06-00549-CV, 2007 Tex. App. LEXIS 5826 at *14
                                                                 (Tex. App.--Houston [14th Dist.] July 26, 2007), reh'g
For Forrester, Jeff, Respondent: Mr. Michael C.                  granted, vacated by 282 S.W.3d 513, 2008 Tex. App.
Engelhart, Ms. Kelly Alice Greenwood, Engelhart &                LEXIS 125. Apparently relying on the court of appeals'
Greenwood, L.L.P., Houston TX.                                   suggestion, Forrester requested a supplemental
                                                                  [**3] clerk's record containing the following documents,
Opinion                                                          or an indication in writing that the following documents
                                                                 were not contained in the clerk's file:
[*431] PER CURIAM
                                                                     1. Notice of Dismissal for Want of Prosecution,
                                                                     Dated December 2, 2005;
HN1 A restricted appeal requires error that is apparent
on the face of the record; error that is merely inferred             2. Any notice of intent to dismiss dated after
will not suffice. In this case, the clerk's supplemental             June 27, 2005 and before December 2, 2005;
record contains a notation that the clerk's office was               3. Any notice of any hearing scheduled for
unable to locate documents indicating notice was sent                December 2, 2005 regarding the court's intent
or a hearing was held on the trial court's dismissal for             to dismiss the case;
want of prosecution. Construing the notation as
affirmative evidence that the trial court failed to provide          4. The record of any hearing regarding the
notice, a divided court of appeals concluded the                     court's intent to dismiss held on December 2,
requirements for a restricted appeal were met. S.W.3d                2005 in this case;
  . Because the clerk has no affirmative duty to record              5. Any trial court docket sheet entry for any
the giving of notice, however, a statement that the                  notice of a hearing to be held on December 2,
record reflects none cannot establish error on the face              2005;
                                                                                                            Page 2 of 3
                                     282 S.W.3d 430, *432; 2009 Tex. LEXIS 112, **3


    6. Any trial court docket sheet entry regarding               HN4 As to what does constitute error on the face of the
    any hearing on the court's intent to dismiss held             record, we have clearly said that silence is not enough.
    on December 2, 2005;                                          The rules governing dismissals for want of prosecution
                                                                  direct the district clerk to mail notice containing the date
    7. Any notice of the December 2, 2005 dismissal
                                                                  and place of hearing at which the court intends to
    order sent to Plaintiffs[] or their counsel . . . .
                                                                  dismiss the case, TEX. R. CIV. P. 165a(1), and a similar
In response to Forrester's request, the clerk provided a          notice of the signing of the dismissal order, see TEX. R.
supplemental record that concluded with the statement             CIV. P. 306a(3). But the rules do not impose upon the
"NOTE: Unable to locate other items requested."                   clerk an affirmative duty to record the mailing of the
Concluding on rehearing that the clerk's notation                 required notices; accordingly, the absence of proof in
affirmatively demonstrated the trial court's failure to           the record that notice was provided does not establish
notify Forrester of the impending and subsequent                  error on the face of the record. See Alexander, 134
dismissal, the court of appeals reversed the trial                S.W.3d at 849 ("'The absence from the record of
 [**4] court's judgment of dismissal and remanded the             affirmative proof that notice of intent to dismiss or of the
case for further proceedings. S.W.3d , . Ginn filed               order of dismissal was provided does not establish
this petition for review contending the court of appeals          error.'" (quoting Falcon Ridge, 811 S.W.2d at 944)).
erred in holding that the requirements for a restricted
appeal were met. We agree.                                        Forrester contends, and the court of appeals held, that
                                                                  the clerk's notation in the trial [**6] record that the
HN2 Before a trial court may properly dismiss a case for          clerk's office was "[u]nable to locate other items
want of prosecution, "[n]otice of the court's intention to        requested" affirmatively reveals that the trial court failed
dismiss and the date and place of the dismissal hearing           to notify Forrester of its intent to dismiss the case.
shall be sent by the clerk to each attorney of record."           Because the clerk's notation is in writing and appears in
TEX. R. CIV. P. 165a(1). HN3 When a party claims in a             the record, Forrester asserts, the record as to notice is
restricted appeal that required notice was not given or a         not silent but rather demonstrates on its face that no
required hearing was never held, the error must appear            notice was given. According to Forrester, the clerk's
on the face of the record. See TEX. R. APP. P. 30; Gold           notation comports with the requirements we have
v. Gold, 145 S.W.3d 212, 213 (Tex. 2004); Alexander v.            articulated for a restricted appeal. We fail to see the
Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004);                distinction, however, between a record that is silent and
Gen. Elec. Co. v. Falcon Ridge Apartments, Joint                  a record that contains a written notation that the record
Venture, 811 S.W.2d 942, 943 (Tex. 1991). When                    is silent; either way, proof of error is absent. See Gold,
extrinsic evidence is necessary to challenge a judgment,          145 S.W. 3d at 213; Alexander, 134 S.W. 3d at 849-50;
the appropriate remedy is by motion for new trial or by           Falcon Ridge, 811 S.W.2d at 943-44. The clerk's
bill of review filed in the trial court so that the trial court   notation reflected nothing more than affirmation of a
has the opportunity to consider and weigh factual                 silent record, which is insufficient to establish reversible
evidence. See Falcon Ridge, 811 S.W.2d at 944.                    error in a restricted appeal.
Accordingly, we have held that affidavits [**5] filed for
the first time in the appellate court from the district clerk     We reverse the court of appeals' judgment and render
and its counsel averring, respectively, that notice was           judgment dismissing the case.
neither given nor received constituted extrinsic evidence
and [*433] did not support a restricted appeal. Id. at            OPINION DELIVERED: March 27, 2009
943-44.




                                                                                                                  Page 3 of 3
|   | Positive
As of: April 7, 2015 5:44 PM EDT


                                            Grondona v. Sutton
                                  Court of Appeals of Texas, Third District, Austin
                                               October 22, 1998, Filed
                                                NO. 03-98-00454-CV

Reporter
991 S.W.2d 90; 1998 Tex. App. LEXIS 6541

Marco Bence Grondona, Santa Cristina Sociedad                 appeal on August 14. First appellant filed an amended
Anonima, Atahualpa del Monte Sociedad Anonima, and            motion to establish late notice of judgment on August
Ignacio Maria Steverlynck, Appellants v. Joseph H.            19, which was denied. Appellants moved the appeals
Sutton, Appellee                                              court to deem their appeal timely filed and appellee
                                                              moved for dismissal of the appeal for want of jurisdiction.
Subsequent History: [**1] Petition for Review Denied          The appeals court denied appellants' motion and
October 7, 1999.                                              granted appellee's motion. The court held that since
                                                              first appellant failed to provide evidence of when his
Prior History: FROM THE DISTRICT COURT OF                     attorney learned of the judgment during the trial court's
TRAVIS COUNTY, 200TH JUDICIAL DISTRICT. NO.                   plenary power, as required by Tex. R. Civ. P. 306a(5),
98-02843, HONORABLE JON N. WISSER, JUDGE                      the ruling had no effect. Thus, first appellant failed to
PRESIDING.                                                    invoke the trial court's jurisdiction and his notice of
                                                              appeal was untimely. Remaining appellants' notices
Disposition: Appeal Dismissed for Want of Jurisdiction        were likewise ineffective. Appellee's motion to dismiss
on Appellee's Motion.                                         the appeal was granted.

Core Terms                                                    Outcome

                                                              The court held that the district court's denial of
notice, date of notice, days, plenary power, trial court,     appellants' motion to establish late notice of judgment
notice of appeal, no writ                                     had no effect because it was not made during the
                                                              district court's plenary power. The court granted
Case Summary                                                  appellee's motion to dismiss the appeal for want of
                                                              prosecution holding appellants' notice of appeal was
Procedural Posture                                            untimely.

Appellant sought review of a judgment of the District         LexisNexis® Headnotes
Court of Travis County, 200th Judicial District (Texas)
that denied appellants' motion to establish late notice of
                                                                Civil Procedure > Attorneys > General Overview
judgment. Appellant moved the appeals court to deem
their appeal timely filed. Appellee moved for dismissal         Civil Procedure > Judgments > Entry of Judgments >
of the appeal for want of prosecution.                          General Overview


Overview                                                      HN1 An exception to the rule that procedural timetables
                                                              run from the date the judgment is signed exists for a
Default judgment was entered against appellants on            party who learns of the judgment more than 20 but less
April 21, and they timely moved for a new trial, which        than 90 days after it was signed. Tex. R. Civ. P. 306a(4);
was denied. First appellant filed a motion to establish       Tex. R. App. P. 4.2. To benefit from the exception, the
late notice of judgment, asserting that he first had notice   party must prove in the trial court, on sworn motion and
of the judgment on May 19. He filed a notice of appeal        notice, the date he or his attorney first received notice or
on the same date. Remaining appellants filed notices of       acquired actual knowledge of the signing. Tex. R. Civ. P.
                                991 S.W.2d 90, *90; 1998 Tex. App. LEXIS 6541, **1



306a(5). If evidence at the hearing establishes the date      Grondona's motion.
of notice, appellate deadlines and the court's plenary
power start from that date rather than the date the           HN1 An exception to the rule that procedural timetables
judgment was signed. Tex. R. Civ. P. 306a(4); Tex. R.         run from the date the judgment is signed exists for a
App. P. 4.2(a)(1).                                            party who learns of the judgment more than twenty, but
                                                              less than ninety, days after it was signed. Tex. R. Civ. P.
  Civil Procedure > ... > Subject Matter Jurisdiction >       306a(4); Tex. R. App. P. 4.2. To benefit from the
  Jurisdiction Over Actions > General Overview                exception, the party must prove in the trial court, on
                                                              sworn motion and notice, the date he or his attorney first
  Civil Procedure > Judgments > Entry of Judgments >
                                                              received notice or acquired actual knowledge of the
  General Overview
                                                              signing. Tex. R. Civ. P. 306a(5). If evidence at the
HN2 Complying with the provisions of Tex. R. Civ. P.          hearing establishes the date of notice, appellate
306a is a jurisdictional requisite. The sworn motion          deadlines and the court's plenary power start from that
serves the purpose of establishing a prima facie case of      date rather than the date the judgment was signed. Tex.
lack of timely notice, thereby invoking the trial court's     R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a)(1).
jurisdiction for the limited purpose of holding a hearing
                                                              HN2 Complying with the provisions of Rule 306a is a
to determine the date of notice. If the movant fails to
                                                              jurisdictional requisite. Memorial Hosp. v. Gillis, 741
establish the applicability of the exception in the manner
                                                              S.W.2d 364, 365-66 (Tex. 1987); In re Simpson, 932
prescribed, the trial court lacks jurisdiction to determine
                                                              S.W.2d 674, 677 (Tex. App.--Amarillo 1996, no writ).
the date of notice and any order doing so is void.
                                                              The sworn motion serves the purpose of establishing a
                                                              prima- facie case of lack of timely notice, thereby
Counsel: FOR APPELLANT: Mr. Robert C. Alden,
                                                              invoking the trial court's jurisdiction for the limited [*92]
Bracewell & Patterson, L.L.P., Austin, TX.
                                                              purpose of holding a hearing to determine the date of
                                                               [**3] notice. Carrera v. Marsh, 847 S.W.2d 337, 342
FOR APPELLEE: Mr. Edward P. Watt, Watt &
                                                              (Tex. App.--El Paso 1993, orig. proceeding). If the
Associates, P.C., Austin, TX.
                                                              movant fails to establish the applicability of the exception
                                                              in the manner prescribed, the trial court lacks jurisdiction
Judges: Before Justices Powers, Aboussie and Kidd.
                                                              to determine the date of notice and any order doing so
                                                              is void. Gillis, 741 S.W.2d at 365-66; Simpson, 932
Opinion                                                       S.W.2d at 678.

[*91] PER CURIAM                                              We first consider whether Grondona's motion invoked
                                                              the trial court's jurisdiction to hear evidence to determine
Appellants Marco Bence Grondona, Santa Cristina               the date of notice. Grondona filed his motion eighty-four
Sociedad Anonima, Atahualpa del Monte Sociedad                days after the date he claims to have learned of the
Anonima, and Ignacio Maria Steverlynck move this              default judgment. Neither Rule 306a nor Rule 4 states
Court to deem their appeal timely perfected. Appellee         when a party must move for a determination of late
Joseph Sutton moves to dismiss the appeal for want of         notice. Several courts of appeals have held that a party
jurisdiction.                                                 must file such a motion within thirty days of acquiring
                                                              notice. See Gonzalez v. Sanchez, 927 S.W.2d 218, 221
On April 21, 1998, the trial court signed a default           (Tex. App.--El Paso 1996, no writ); Montalvo v. Rio Nat'l
judgment against appellants. Appellants timely moved          Bank, 885 S.W.2d 235, 237 (Tex. App.--Corpus Christi
for a new trial on May 21, and the court denied the           1994, no writ); Womack-Humphreys Architects, Inc. v.
motion by an order signed on July 15. On August 11,           Barrasso, 886 S.W.2d 809, 816 (Tex. App.--Dallas 1994,
Grondona filed a motion to establish late notice of           writ denied).
judgment, asserting that he first had notice of the
judgment on May 19. He filed a notice of appeal on the        This Court, however, has concluded that a party can file
same date. The remaining appellants filed notices of          such a motion more than thirty days after receiving [**4]
appeal on August 14. Grondona amended his motion to           notice, as long as he files it within the court's plenary
establish late notice of judgment on August 19, and [**2]     power counted from the date of notice. Vineyard Bay
on September 3, the trial court signed an order denying       Dev. Co. v. Vineyard on Lake Travis, 864 S.W.2d 170,
                                                                                                           Page 2 of 3
                                 991 S.W.2d 90, *92; 1998 Tex. App. LEXIS 6541, **4



172 & n.1 (Tex. App.--Austin 1993, writ denied). In           Even if Grondona had offered prima-facie evidence
Vineyard Bay, the motion to determine notice was filed        during the court's plenary power, he failed to obtain a
thirty-one days after the date of notice but during the       ruling on his motion within that period. See Montalvo,
court's plenary power, which had been extended by a           885 S.W.2d at 237-38; Barrasso, 886 S.W.2d at 816;
motion for new trial. Id. Here, Grondona moved for a          Conaway v. Lopez, 843 S.W.2d 732, 733 (Tex.
new trial on May 21, two days after the asserted date of      App.--Austin 1992, no writ). The trial court heard the
notice, and the trial court overruled the motion on July      motion and signed the order overruling it on September
15. The court's plenary power would therefore have            3, beyond the time it would have had power to determine
expired thirty days later on August 14. Grondona's            the date of notice of judgment. The order is therefore of
motion, filed on August 11, was timely.                       no effect. 1

                                                               [**6] We conclude that Grondona failed to invoke the
To make a prima-facie case of lack of timely notice,          trial court's jurisdiction to determine [*93] the date of
Grondona had to offer evidence that neither he nor his        notice of the judgment. His notice of appeal, filed 112
attorney learned of the judgment within twenty days           days after the judgment was signed, is thus untimely.
after it was signed. Tex. R. Civ. P. 306a(5); Simpson,        See Tex. R. App. P. 26.1. The remaining appellants
932 S.W.2d at 678; see Tex. R. App. P. 4.2(c). By             assert that they have timely appealed because they
affidavit attached to the motion, Grondona states that        filed their notices of appeal within fourteen days after
he first received notice of the judgment on May 19.           Grondona filed his notice of appeal. See Tex. R. App. P.
Grondona offered no evidence, however, of when his            26.1(d). Because Grondona's notice of appeal is
attorney first learned of the judgment.                       ineffective to perfect appeal, the remaining notices are
                                                              likewise ineffective.
On August 19, Grondona filed [**5] an amended motion
to determine the date of notice. The amended motion           We overrule appellants' motion to deem the appeal
includes the affidavit of Grondona's attorney, who avers      timely perfected. Because we lack jurisdiction over an
that he did not know of the judgment until May 19.            appeal that is not timely perfected, we grant Sutton's
Grondona therefore could not have made a prima-facie          motion to dismiss the appeal. Davies v. Massey, 561
case until the amended motion was filed on August 19,         S.W.2d 799, 800 (Tex. 1978). We dismiss the appeal for
beyond the trial court's plenary power. By failing to offer   want of jurisdiction. Tex. R. App. P. 42.3(a).
prima-facie evidence of late notice of judgment during
                                                              Before Justices Powers, Aboussie and Kidd
the trial court's plenary power, Grondona did not invoke
the court's jurisdiction to determine the date of notice.     Dismissed for Want of Jurisdiction on Appellee's Motion
Barrasso, 886 S.W.2d at 816; Montalvo, 885 S.W.2d at
237-38; see Owen v. Hodge, 874 S.W.2d 301, 303 (Tex.          Filed: October 22, 1998
App.--Houston [1st Dist.] 1994, no writ).




1
   The court found in its order that the date the judgment was signed remained applicable. Having determined that the trial
court lacked jurisdiction to render the order, we do not review the finding substantively.
                                                                                                               Page 3 of 3
                                                                                                             Page 1




Caution
As of: Mar 30, 2015

               PAUL HERBERT, Appellant v. GREATER GULF COAST ENTERPRISES, INC.
                          D/B/A GULF COAST ENTERPRISES, Appellee

                                                No. 01-94-01240-CV

                      COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

                                   915 S.W.2d 866; 1995 Tex. App. LEXIS 2859


                                             November 16, 1995, Filed

PRIOR HISTORY:             [**1] On Appeal from the
                                                                Paul Herbert appeals a default judgment in favor of
County Civil Court at Law Number Three. Harris Coun-
                                                           appellee Greater Gulf Coast Enterprises, Inc., D/B/A
ty, Texas. Trial Court Cause No. 627786. CAROLYN D.
                                                           Gulf Coast Enterprises, Inc. (Gulf Coast), in a suit
HOBSON, Judge.
                                                           brought under Tex. Prop. Code Ann. 162.001 (Vernon
    This Opinion Substituted on Grant of Appellant Paul    1984). In five points of error, appellant contends that
Herbert's Motion for Rehearing for Withdrawn Opinion       service of process was defective, that the trial court did
of August 3, 1995, Previously Reported at: 1995 Tex.       not have personal jurisdiction over him, and that there
App. LEXIS 1740.                                           was no evidence to establish misapplication of trust
                                                           funds or quantum meruit or to support the award of ex-
DISPOSITION:         Judgment affirmed in part; reversed   emplary damages. We reverse in part and affirm in part.
and remanded in part
                                                               Facts
                                                                Appellant, who resides in Connecticut, is the presi-
COUNSEL: For Appellant: DAVID S. O'NEIL, MAU-              dent of Herbert and Boghosian, Inc. (H&B), a Connecti-
RICE TATE 3RD., WOODLAND.                                  cut corporation [**2] in the business of general con-
                                                           tracting. Gulf Coast contracted with H&B to supply labor
For Appellee: CHUCK PORTZ, HOUSTON.                        and materials to demolish and reinstall drywall and
                                                           acoustical materials. Although Gulf Coast fully per-
JUDGES: Adele Hedges, Justice, Justices Hutson-Dunn        formed its obligations, H&B refused to pay as agreed.
and Mirabal also sitting.                                  Gulf Coast sued appellant and H&B in Harris County,
                                                           Texas to recover the money it alleged it was owed. Both
OPINION BY: ADELE HEDGES                                   H&B and appellant were served in Connecticut under
                                                           Tex. R. Civ. P. 108. Neither filed an answer or made an
OPINION                                                    appearance. The trial court granted Gulf Coast's motion
                                                           for default judgment and entered judgment finding ap-
   [*869]      OPINION ON MOTION FOR RE-
                                                           pellant and H&B jointly and severally liable for $ 61,373
HEARING
                                                           actual damages, $ 1,800 in pre-judgment interest, $ 305
    We grant appellant, Paul Herbert's, motion for re-     as costs of court, $ 100,000 in exemplary damages and $
hearing, withdraw our opinion of August 3, 1995, and       30,000 in attorney's fees. Within six months after the
substitute this opinion in its stead.                      entry of judgment, appellant and H&B filed a petition for
                                                                                                                       Page 2
                                   915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, **


writ of error seeking to set aside the default judgment.        Section 162. Defendants have diverted and disposed of
H&B was later dismissed as a party to this appeal on its        the corpus of the trust and Plaintiff is entitled to seek
own motion.                                                     exemplary damages of at least $ 100,000.00.
    Standard of Review                                               Additionally, [**5] attached to and incorporated
                                                                in the petition are invoices which identify the location of
     Review of a judgment by writ of error is proper only
                                                                the jobsite as Houston, Texas and the business address of
if (1) the petition is filed within six months of the signing
                                                                Gulf Coast as Porter, Texas.
of the judgment [*870] (2) by a party to the lawsuit
(3) who did not participate in the trial. [**3] Tex. R.              The allegations in Gulf Coast's petition are sufficient
App. P. 45. Reversal of the judgment is proper only if          to confer in personam jurisdiction. Section 162 of the
error is apparent from the face of the record. Brown v.         Property Code establishes that construction payments are
McLennan County Children's Protective Servs., 627               trust funds for the purpose of the statute if the payments
S.W.2d 390, 392 (Tex. 1982). In determining whether an          were made to a contractor or to an officer under a con-
error appears on the face of the record, a court may con-       struction contract for the improvement of specific real
sider all the papers on file in the appeal, including the       estate in Texas. Tex. Prop. Code Ann. 162.001 (Vernon
statement of facts. DSC Finance Corp. v. Moffitt, 815           1984). A contractor or an officer who receives trust
S.W.2d 551, 551 (Tex. 1991). Legal and factual suffi-           funds is a trustee of the funds. Tex. Prop. Code Ann.
ciency of the evidence to support the judgment is an ap-        162.002 (Vernon 1984). Gulf Coast specifically put ap-
propriate inquiry on writ of error. See Comstock Silver-        pellant on notice that he was being sued for liability un-
smiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex. App.--San        der this chapter of the Property Code. These contentions
Antonio 1995, no writ).                                         are sufficient allegation of appellant's purposeful act or
                                                                transaction in the State of Texas. The cause of action,
    Lack of In Personam Jurisdiction
                                                                collection of money owed under the construction con-
     In point of error one, appellant contends that the trial   tract, clearly arose out of the transaction.
court erred in granting Gulf Coast a default judgment
                                                                     We do not believe that jurisdiction over appellant is
against him because Gulf Coast's petition did not contain
                                                                offensive to the ideals of fair play and justice. The Leg-
jurisdictional allegations sufficient to confer in personam
                                                                islature enacted section 162 as a [**6] special protec-
jurisdiction on the trial court.
                                                                tion for contractors and subcontractors in order to avoid
     Gulf Coast served appellant under Tex. R. Civ. P.          the injustice of owners' and contractors' refusal to pay for
108. Allegations in petitions served under this rule must       work completed. See American Amicable Life Ins. Co. v.
be sufficient to meet due process requirements. Para-           Jay's Air Conditioning & Heating, Inc., 535 S.W.2d 23,
mount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491,          26 [*871] (Tex. Civ. App.--Waco 1976, writ ref'd
496 (Tex. 1988). Service of process [**4] under rule            n.r.e.). The basic equities weigh in favor of in personam
108 does not, in and of itself, confer in personam juris-       jurisdiction. See Siskind, 642 S.W.2d at 436.
diction. Id. at 495. To pass constitutional muster, Gulf
                                                                    We overrule point of error one.
Coast was required to allege (1) that appellant purpose-
fully did some act or consummated some transaction in               Lack of Proper Service
Texas, (2) that the cause of action arose from or was
                                                                     In point of error two, appellant contends that the trial
connected with such act or transaction, and (3) that the
                                                                court erred in granting the default judgment because the
assumption of jurisdiction by the trial court will not of-
                                                                service of process was improper. Specifically, he com-
fend "traditional notions of fair play and substantial jus-
                                                                plains that the officer's return attached to the citation fails
tice . . . ." Siskind v. Villa Foundation for Education, 642
                                                                to reflect service of the petition on him.
S.W.2d 434, 436 (Tex. 1982).
                                                                    Rule 108 provides:
    In this case, Gulf Coast's pleadings set forth:
                                                                     Where the defendant is absent from the State, or is a
    Defendant, H&B promised to pay for the labor and
                                                                nonresident of the State, the form of notice to such de-
materials and has accepted all and has used and benefited
                                                                fendant of the institution of the suit shall be the same as
from installing them in construction contracts for Petrie
                                                                prescribed for citation to a resident defendant; and such
Stores Corporation.
                                                                notice may be served by any disinterested person com-
     Although requested to do so, Defendant wholly              petent to make oath of the fact in the same manner pro-
failed and refused to pay as agreed.                            vided in Rule 106 hereof.
     Defendants, H&B and PAUL HERBERT as Presi-                     Tex. R. Civ. P. 108. Rule 106 provides:
dent are trustees for construction draws to which Plaintiff
is a beneficiary in accordance with Texas Property Code
                                                                                                                    Page 3
                                   915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, **


    (a) Unless the citation or an order [**7] of the           perstore, Inc. v. Haner, 877 S.W.2d 376, 379 (Tex.
court otherwise directs, the citation shall be served by       App.--Houston [1st Dist.] 1994, no writ); Popkowsi v.
any person authorized by Rule 103 by                           Gramza, 671 S.W.2d 915, 917 (Tex. App.--Houston [1st
                                                               Dist.] 1984, no writ).
     (1) delivering to the defendant, in person, a true
copy of the citation with the date of delivery endorsed            We overrule point of error two.
thereon with a copy of the petition attached thereto . . . .
                                                                Legal Insufficiency
    Tex. R. Civ. P. 106.
                                                                    Legal insufficiency review requires that the court
    The return and affidavit of Sheriff Ocif, the officer
                                                               consider only the evidence [*872] and inferences,
in Connecticut who served appellant, states:
                                                               when viewed in their most favorable light, that tend to
     That on March 21, 1994 at 11:30 a.m. I left a true        support the finding, and disregard all evidence and in-
and attested copy of the within and foregoing Original         ferences to the contrary. Davis v. City of San Antonio,
Petition Citation, Notice to Serve Non-Resident Defend-        752 S.W.2d 518, 522 (Tex. 1988); Stafford v. Stafford,
ant with my endorsement thereon and a copy of the              726 S.W.2d 14, 16 (Tex. 1987). If there is any evidence
Complaint with and in the hands of the within named            of probative force to support the finding, the point must
defendant PAUL HERBERT, 314 Ella Grasso Drive,                 be overruled and the finding upheld. Sherman v. First
Torrington, CT.                                                Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988); In re
                                                               King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.
    (Emphasis added.) Appellant contends that the affi-
                                                               1951). If there is more than a scintilla of evidence to
davit is defective because it references a complaint,
                                                               support the finding, the no evidence challenge fails.
while Gulf Coast's pleading was denominated a petition.
                                                               Stafford, 726 S.W.2d at 16.
     Strict compliance with the rules regarding service of
citation is required to confer jurisdiction on the trial       Misapplication [**10]        of Funds
court. See Primate Const., Inc. v. Silver, 884 S.W.2d 151,
                                                                    In point of error three, appellant contends that the
152 (Tex. 1994). In a writ of error attack, we indulge no
                                                               trial court erred entering the default judgment because
presumptions in favor of valid issuance, service, and
                                                               there was no evidence that he misapplied trust funds.
return [**8] of citation. Uvalde Country Club v. Mar-
tin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).              A defendant who defaults admits all allegations of
In spite of these stringent requirements, we believe that      facts except unliquidated damages. Stoner v. Thompson,
the sheriff's return of citation reflects proper service on    578 S.W.2d 679, 684-85 (Tex. 1979). Appellant admitted
appellant.                                                     by default the existence of the contract, the performance
                                                               by Gulf Coast, the refusal to pay, the fact that he is a
     We disagree that Woodall v. Lansford, 254 S.W.2d
                                                               trustee of the construction funds for the benefit of Gulf
540, 543 (Tex. Civ. App.--Fort Worth 1953, no writ)            Coast under section 162 of the Property Code, and that
supports appellant's challenge of the return. In that case,    he diverted and disposed of the corpus of the trust. The
the return stated that the sheriff had served a copy of the
                                                               allegations admitted by default in the context of Gulf
citation on the defendant, but it omitted any reference to
                                                               Coast's reference to section 162 suffice to establish that
the petition. Nor does Primate Const., 884 S.W.2d at
                                                               appellant misapplied the trust funds.
152, mandate a finding of defective return. The return of
service preprinted form in that case recited that the of-
                                                               Quantum Meruit
ficer served Plaintiff's Original Petition, which statement
was inaccurate. The citation accurately reflected that the          In point of error five, appellant contends that the tri-
defendant was served with Plaintiff's Second Amended           al court erred in granting the default judgment because
Petition, the first pleading which made the defendant a        there was no evidence to support an award of damages
party. In both of these cases, the return's deviation from     based on quantum meruit.
absolute accuracy was much more pronounced than in
                                                                    Quantum meruit is an equitable remedy which does
this case.
                                                               not arise out of a contract, but is independent of it. Vortt
     The return we are reviewing merely refers to the          Exploration Co. v. Chevron U.S.A., 787 S.W.2d 942, 944
original petition as a complaint, a term clearly synony-       (Tex. 1990). Generally, a party [**11] may recover un-
mous with petition. The fact that the original petition is     der quantum meruit only where there is no express con-
referred [**9] to as a complaint does not make it any          tract covering the services or materials furnished. Id. In
less clear that appellant was served with the appropriate      this case, appellant admitted the elements of Gulf Coast's
documents. Even strict compliance does not require such        quantum meruit claim by default. Further, appellant's
absolute obeisance to the minutest detail. See Boat Su-
                                                                                                                Page 4
                                  915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, **


admission by default of the existence of an express con-           Although appellant admitted by default that he in-
tract renders this issue moot.                                tentionally or knowingly misapplied trust funds in viola-
                                                              tion of section 162 of the Texas Property Code, appellee
    We overrule point of error five.
                                                              did not plead or present any evidence to show that the
                                                              [*873] extent of appellant's knowing conduct was so
Exemplary Damages
                                                              egregious as to warrant exemplary damages. Further-
     In point of error four, appellant contends that appel-   more, no evidence was presented by appellee to support
lee failed to present evidence to support the award of        the amount of exemplary damages awarded.
exemplary damages. Although a default judgment has
                                                                   Because there was no hearing on the issue of exem-
the effect of admitting all matters properly alleged, if
                                                              plary damages, we sustain point of error four, and re-
damages are unliquidated or not proved by an instrument
                                                              mand to the trial court for appellee and appellant to pre-
in writing, the prevailing party must present evidence on
                                                              sent (1) evidence regarding the extent of appellant's in-
damages. Tex. R. Civ. P. 243; Holt Atherton Indus., Inc.
                                                              tentional conduct; and (2) evidence regarding the [**13]
v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (court rendering
                                                              reasonableness of the amount of exemplary damages
default judgment must hear evidence of unliquidated
                                                              requested.
damages) Unliquidated claims include exemplary dam-
ages. First Nat'l Bank of Irving v. Shockley, 663 S.W.2d           We reverse the part of the judgment that awards pu-
685, 689 (Tex. App.--Corpus Christi 1983, no writ).           nitive damages and remand the issue of punitive damag-
Thus, to sustain an award of additional damages in a          es only. Tex. R. App. P. 81(b)(1); see Alvarado v. Reif,
default judgment, appellees must both plead knowing           783 S.W.2d 303, 305 (Tex. App--Eastland 1989, no writ)
conduct and present evidence that [**12] the extent of        (in absence of a record on the issue of unliquidated
appellant's knowledge warrants additional damages. See        damages following a no-answer default judgment, rever-
Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 534           sal and remand on this issue is required). The remainder
(Tex. App.--San Antonio 1988, writ denied) (punitive          of the judgment is affirmed.
damages are not regarded as admitted by default in a
                                                                  /s/Adele Hedges
DTPA action). In addition, an exemplary damages award
must be reasonably proportioned to actual damages. Al-            Justice
amo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.
1981). The trial court must consider several factors to           Justices Hutson-Dunn and Mirabal also sitting.
determine whether an award of exemplary damages is                Judgment rendered and opinion delivered
reasonable. See id.
                                                                                                                  Page 1




Caution
As of: Mar 30, 2015

                DOROTHY L. HIGGINBOTHAM AND JOHN G. HIGGINBOTHAM, Petitioners,
                 v. GENERAL LIFE AND ACCIDENT INSURANCE COMPANY, ET AL., Re-
                                           spondents

                                                       No. C-7641

                                           SUPREME COURT OF TEXAS

                               796 S.W.2d 695; 1990 Tex. LEXIS 121; 34 Tex. Sup. J. 16


                                              October 10, 1990, Delivered

PRIOR HISTORY:             [**1]    From Tarrant County       12:01 p.m. that day was during business hours. We fur-
Second District.                                              ther [**2] hold that the trial court's order was effective
                                                              to amend the officer's return. We reverse the court of
                                                              appeals judgment and remand this cause to it for further
JUDGES: C. L. Ray, Justice. Dissent by Chief Justice          proceedings.
Thomas R. Phillips joined by Justices Cook, Hightower
                                                                   Dorothy and John Higginbotham sued General Life
and Hecht.
                                                              and National Benefit for the refusal to pay for Dorothy's
                                                              medical expenses alleged to have been covered by in-
OPINION BY: RAY
                                                              surance policies issued by those companies. When the
                                                              insurers failed to answer, the trial court rendered default
OPINION
                                                              judgment against them. The return on the citations for
     [*695] OPINION                                           the two defendants read substantially the same:
     RAY, Justice. The issue in this cause is whether the          Received this citation the 18 day of March, 1986, at
record reflects proper service of citation on General Life    8:07 o'clock a.m. Executed [*696] at Fort Worth,
and Accident Insurance Company and National Benefit           within the county of Tarrant, state of Texas, on the 18
Life Insurance Company, both domestic insurance com-          day of March, 1986, at 12:01 o'clock p.m., by summon-
panies. The return on both defendants' citations stated       ing the within named corporation, Gen. Life & Accident
that they were served "on the 18 day of March, 1986 at        Ins. by delivering to Joyce Brown, Presi-
12:01 o'clock p.m." The trial court rendered default          dent-Vice-President-Registered Agent-, in person of the
judgment against both defendants. After hearing the mo-       said Gen. Life & Accident Ins. at 3900 SFwy a true copy
tions for new trial presented by both defendants, the trial   of this citation together with the accompanying copy of
court expressly concluded that service was proper under       plaintiff's original petition, having first endorsed on same
former article 3.64 of the Insurance Code, allowing ser-      the date of delivery.
vice "at the home office of such company during busi-
                                                                   On the citation return for General [**3] Life the
ness hours." The court of appeals reversed the trial court
                                                              words "registered agent" were circled. The citation re-
judgment, concluding that there was no indication in the
                                                              turn for National Benefit had its name in the appropriate
record that 12:01 p.m. was during defendants' business
                                                              blanks but did not have any words circled.
hours. 750 S.W.2d 19. We hold that an express finding
by the trial court necessarily included the finding that
                                                                                                                   Page 2
                                     796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **;
                                                 34 Tex. Sup. J. 16

     The insurance companies filed motions for new trial      and National Benefit each admitted they actually re-
asking that the default judgments be set aside. They          ceived citation. The officer's return, direct testimony and
failed to specifically raise the defect that 12:01 p.m. was   circumstantial evidence indicated that Joyce Brown was
not expressly recited to have been during business hours,     a clerical employee who took the citations during regular
but they did complain that Joyce Brown was not an of-         business hours.
ficer or registered agent and that service was improper.
                                                                   The record shows literal compliance with a method
     At the time of service in 1986, article 3.64 of the      of service provided by the statute. The only apparent
Insurance Code provided the following methods for ser-        defect is that the officer's return did not adequately recite
vice of process on domestic insurance companies:              such method of service. Neither insurance company
                                                              pointed out nor expressly complained about such defect
     Process in any civil suit against any "domestic"
                                                              before the trial court. The trial court has express authori-
company, may be served only on the president, or any
                                                              ty to allow amendment of the return to reflect the service
active vice president, or secretary, or general counsel
                                                              that was actually had. See Tex. R. Civ. P. 118. Since the
residing at the city of the home office of the company, or
                                                              record affirmatively shows service of citation, and [**6]
by leaving a copy of same at the home office of such
                                                              the trial court in a formal order has found [*697] the
company during business hours.
                                                              facts that constitute the service that was had, we see no
     Insurance Code, ch. 491, § 1, art. 3.64, 52d Leg.,       point in requiring the trial judge to sign a separate order
1951 Tex. Gen. Laws 868, 920, repealed by Act of Apr.         labeled "Order Granting Amendment of Return." The
21, 1987, ch. 46, § 12, 70th Leg., 1987 Tex. Gen. Laws        order signed by the judge in the record is tantamount to
79, 88.                                                       an order amending the return.
     The trial court conducted a hearing on the motions            Our holding in this case is consistent with the one
for new trial. [**4] The affidavits by vice presidents        opinion in which we have construed rule 118. In London
of both companies supporting the respective motions for       v. Chandler, 406 S.W.2d 203 (Tex. 1966), petitioner
new trial stated "someone received citations and rather       claimed that a default judgment was invalid because the
than following the proper procedure, mistakenly placed        citation failed to state the date of issuance, and stating
them in the claim file." The motions themselves con-          the date of issuance was an express requirement under
tained identical allegations that "through someone's er-      the rules of civil procedure. We held that the mere failure
ror, these petitions were erroneously placed in the claim     to note the date of issuance did not make the citation
file of Mr. and Mrs. Higginbotham, rather than forward-       invalid or the service of the citation ineffective. We stat-
ed to the corporate officers who then forwarded them to       ed this was "made clear by Rule 118 which provides for
an attorney for the filing of an answer." The trial court     amendment of citations." Id. We then noted that the cita-
could properly take judicial notice that 12:01 p.m. on        tion showed the date of sealing and stamping, the date of
March 18, 1986 was an early afternoon on a Tuesday that       delivery to the sheriff, and date of service. Since the rec-
was not a statutory holiday. Tex. R. Civ. Evid.               ord showed a permissible period when the citation must
201(b),(c). There was testimony that Joyce Brown was          have been issued, we held that the "failure of the clerk to
an employee of both insurance companies who worked            note the date of issuance on the [**7] citation did not
in the office during the relevant time. In the order over-    result in any prejudice to petitioner." Id. In London, as in
ruling the motion for new trial, the trial court expressly    the present case, there was no order as such expressly
found:                                                        amending the citation or citation return.
     However, the return established that service oc-             The record and express finding of the trial court al-
curred at the offices of the defendants and the proof at      ready establish the amendment of the incorrect or in-
the hearing reinforced that fact, and it was also proven      complete recitation on the return. If that alleged defect
that Ms. Brown, while not a "registered agent," was an        had been properly raised before the trial court, it "might
employee of these domestice [sic] insurance companies.        have been immediately cured by amendment," and the
This [**5] meets the requirement of Insurance Code            appellate court should not have reversed the default
Article 3.64 to serve such a company inter alia" . . . by     judgment to require the trial court to expressly correct it.
leaving a copy of same at the home office of such com-        See generally Crain v. Griffis, 14 Tex. 358, 363 (1855).
pany during business hours." Service was proper and the       Because the record affirmatively demonstrated a proper
Court acquired jurisdiction.                                  form of service and contained an order tantamount to
                                                              formal amendment of the return of citation, the record
     The trial court, finding that service was proper under   was sufficient to show valid service.
the quoted provision of the statute, necessarily also found
that service was made "during business hours." The evi-            Our holding in this case should not be mistaken as a
dence in the record supported this finding. General Life      retreat from our line of cases holding that the record of
                                                                                                                    Page 3
                                       796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **;
                                                   34 Tex. Sup. J. 16

service supporting a default judgment must show strict          a strict compliance with the provided mode of service."
compliance with the rules governing service of process.         McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965).
See, e.g., McKanna v. Edgar, 388 S.W.2d 927 (Tex.               This showing must be made from the record that was
1965); Eagle Life Ins. Co. v. George, 473 S.W.2d 311            actually before the trial court when the default judgment
(Tex.Civ.App. - Beaumont 1971, [**8] writ ref'd). We            was signed, [**10] unless the record is amended pur-
adhere to our rule that "failure to affirmatively show          suant to Texas Rule of Civil Procedure 118. See, e.g.,
strict compliance with the Rules of Civil Procedure ren-        Cox Marketing, Inc. v. Adams, 688 S.W.2d 215,
ders the attempted service of process invalid and of no         217-18(Tex. App. -- El Paso 1985, no writ)(cost and
effect." Uvalde Country Club v. Martin Linen Supply             supersedeas bonds signed by defendant's president can-
Co., 690 S.W.2d 884, 885 (Tex. 1985).                           not establish validity of service on signer since neither
                                                                bond was on file when default judgment signed).
     Most of these opinions addressing the requirement
that the record show strict compliance are writ of error            The return of service on the two defendants in this
attacks on default judgments. In such cases there is no         case was as follows:
record of service other than the citation return, and its
                                                                    PL. 12
recitations, taken as true, must show strict compliance
with service requirements. We are not to be understood              OFFICER'S RETURN FOR CORPORATIONS
as holding that the citation return alone in this case
                                                                     Received this Citation the 18 day of March, 1986, at
would have been sufficient to show valid service. Our
                                                                807 o'clock A.M. Executed at Ft. Worth, within the
holding in this case is restricted to situations in which
                                                                County of Tarrant, State of TX, on the 18 day of March,
there is a record (such as the evidence at the hearing on
                                                                1986, at 1201 o'clock P.M., by summoning the within
motion for new trial) showing strict compliance with a
valid method of service and an order expressly amending         named corporation, Natl. Benefit Life Ins. Co. by deliv-
the return or that is tantamount to an order amending the       ering to Joyce Brown at 3900 S. Fwy. President --
                                                                Vice-President -- Registered Agent --, in person, of the
return of citation.
                                                                said Natl. Benefit Life Ins. Co. a true copy of this cita-
    We reverse the judgment of the court of appeals and         tion together with the accompanying copy of plaintiff's
remand the cause to that court for it to consider the de-       original petition, having first indorsed on same the date
fendants' other points of error not previously addressed.       of delivery.
                                                                    PL. 13
DISSENT BY: [**9] PHILLIPS
                                                                    OFFICER'S RETURN FOR CORPORATIONS
DISSENT
                                                                     Received this Citation the 18 day of March, 1986, at
DISSENTING OPINION                                              807 o'clock A.M. Executed at Ft. Worth, within the
                                                                County of Tarrant, State of [**11] TX, on the 18 day of
    Thomas R. Phillips, Chief Justice dissenting.               March, 1986, at 1201 o'clock P.M., by summoning the
                                                                within named corporation, Gen. Life & Accident Ins. by
     I dissent. The court's holding in this case is incon-
                                                                delivering to Joyce Brown Registered Agent -, in person,
sistent with settled Texas authority regarding the suffi-
                                                                of the said Gen. Life & Accident Ins. at 3900 S. Fwy. a
ciency of service in default judgments.
                                                                true copy of this citation together with the accompanying
     When a defendant alleges defective service in an           copy of plaintiff's original petition, having first indorsed
appeal from a default judgment, the ordinary presump-           on same the date of delivery.
tions supporting the validity of the judgment do not ap-
                                                                    Both of these returns are defective, as they do not,
ply. As we explained in Flynt v. City of Kingsville, 125
                                                                on the record in this case, affirmatively reflect compli-
Tex. 510, 82 S.W.2d 934 (1935):
                                                                ance with any applicable service statute.
 [*698] On a direct attack . . . the usual presumption of            These defendants were amenable to service under at
service because of the recital in the judgment, "that de-       least two statutes. The first is article 2.11 of the Texas
fendants though duly and legally cited to appear and            Business Corporation Act, which provides that a domes-
answer, came not but wholly made default," does not             tic corporation which maintains a registered agent within
obtain, and the error resulting from the absence in the         the state may be served by delivering process to the
record of the necessary showing necessitates a reversal         president, any vice president, or the registered agent of
of the judgment.                                                the corporation. The return of service on National Bene-
                                                                fit Life states that delivery of process was made on Joyce
Thus, it is "the established law of this State that it is im-   Brown, but it does not state whether she was the presi-
perative and essential that the record affirmatively show       dent, a vice president, or the registered agent of that de-
                                                                                                                      Page 4
                                       796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **;
                                                   34 Tex. Sup. J. 16

fendant. As neither the petition nor the citation supply        the hearing on motion for new trial, such
this necessary information, the service [**12] does not         "post-judgment" evidence cannot supply necessary in-
satisfy article 2.11.                                           formation which was not in the record when the judg-
                                                                ment was signed. See Cox, 688 S.W.2d at 218. Because
     The return of service on General Life and Accident
                                                                the face of the record does not reflect proper service, and
Insurance Company, on the other hand, is regular on its
                                                                because the Higginbothams made no attempt to amend
face, since it [*699] states that Joyce Brown is the
                                                                the record under Rule 118, the companies are entitled to
registered agent of that defendant. Recitations in the of-
                                                                a new trial.
ficer's return have been held to be prima facie evidence
of proper service. See National Med. Enterprises of Tex-            These rules, while complicated, have been devel-
as, Inc. v. Wedman, 676 S.W.2d 712, 715 (Tex. App.              oped by our courts to protect the rights of all litigants. As
1984, nor writ); contra NBS Southern, Inc. v. The Mail          we explained in Finlay v. Jones, 435 S.W.2d 136, 138-39
Box, Inc., 772 S.W.2d 470 (Tex. App. -- Dallas 1989, no         (Tex. 1968):
writ). However, in its motion for new trial, General Life
established by uncontroverted evidence that Ms. Brown           The two basic judicial decisions a trial judge must make
was not its registered agent, and the trial court so found      before rendering and entering a default judgment are (1)
in its findings of fact and conclusions of law. Thus, nei-      that the court has jurisdiction of the subject matter and
ther defendant was properly served under article 2.11.          the parties to the suit, and (2) that, on the record, the case
                                                                [**15] is ripe for judgment. These decisions cannot
     The second possible statute under which service was
                                                                possibly be clerical because the court has no more sol-
authorized was article 3.64 of the Texas Insurance Code,
                                                                emn judicial obligation than that of seeing that no litigant
then in effect but now repealed. That statute provided
                                                                is unjustly saddled with a judgment in the absence of
that service could be effected on a "domestic" life, health
                                                                notice and a hearing.
and accident insurance company by serving process "on-
ly on the president, or any active vice president, or sec-            Today, the court changes these rules. It deems the
retary, or general counsel residing at the home [**13]          trial court's explanation of its ruling, based on testimony
office of the company, or by leaving a copy of same at          offered at the hearing on defendant's motion for new
the home office of such company during business hours."         trial, as "tantamount to an order amending the return of
The Higginbothams argue that service was properly ef-           citation" under Texas Rule of Civil Procedure 118. The
fected on both defendants under this statute. If so, such       court's sole authority for this remarkable holding is Lon-
proper service was not reflected in the officer's returns.      don v. Chandler, 406 S.W.2d 203 (Tex. 1966). This reli-
Joyce Brown's position was not designated on National           ance is misplaced. London cited Rule 118 only to explain
Benefit's return, and nothing in the petition or citation       that the availability of amendment demonstrates that a
demonstrates that she met one of the applicable catego-         technical defect in a citation does not render service
ries for accepting service. And although she was desig-         thereunder absolutely void. [*700] Id. at 204. Neither
nated as registered agent on the return of service on           London nor any other Texas case has ever suggested that
General Life, the evidence presented to and accepted by         a citation or return may be amended by implication. By
the trial court demonstrated that this statement was false.     its terms, the rule obviously contemplates a physical
Hence, the only remaining avenue of service under the           substitution of a corrected instrument into the record.
statute was by leaving process at the home office. Noth-        See, e.g., Mylonas v. Texas Commerce Bank -- West-
ing in the return on either defendant reflects that "3900       wood, 678 S.W.2d 519 (Tex. App. -- Houston [14th Dist.]
S. Fwy" was the home office of either company, nor is           [**16] 1984, no writ). At the most, it might conceiva-
such information supplied by the citation. The plaintiffs'      bly be expanded to encompass an affidavit from the of-
original petition stated as follows:                            ficer who committed the error. See generally Zaragoza v.
                                                                de la Paz Morales, 616 S.W.2d 295, 296 (Tex. Civ. App.
    Defendants are domestic insurance companies with
                                                                -- Eastland 1981, no writ)(on rehearing). If the court de-
home offices in Tarrant County, Texas, and registered to
                                                                sires to change Rule 118, it should do so by amendment,
conduct business as insurance companies in the state of
                                                                not by a tortured reading of a prior opinion.
Texas. Defendants may be served process at their [**14]
address, 3900 South Freeway, Fort Worth, Texas 76110.                I would not so cavalierly alter Texas law. In light of
                                                                the Higginbothams' failure to establish valid service, I
      Since an "address" is not necessarily a home office,
                                                                would affirm the judgment of the court of appeals and
the recitals in the petition fall short of supplying the nec-
                                                                remand the cause for trial. I therefore find it unnecessary
essary proof that service was effected on defendants at
                                                                to discuss whether the court of appeals erred in its hold-
their home office, as the statute requires. Although the
                                                                ing that the Higginbothams were required to establish on
trial court made a finding of fact that this address was the
                                                                the face of the record that the time of service was in fact
home office, apparently based on evidence presented at
                                                                during business hours, or whether the insurance compa-
                                                                                              Page 5
                                   796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **;
                                               34 Tex. Sup. J. 16

nies established a right to new trial under the Craddock   Tex. 388, 133 S.W.2d 124 (1939).
standards. Craddock v. Sunshine Bus Lines, Inc., 134
|   | Caution
As of: April 7, 2015 5:46 PM EDT


                              Holt Atherton Industries, Inc. v. Heine
                                                Supreme Court of Texas
                                              June 17, 1992, DELIVERED
                                                       No. D-0562

Reporter
835 S.W.2d 80; 1992 Tex. LEXIS 75; 35 Tex. Sup. J. 881

HOLT ATHERTON INDUSTRIES, INC., PETITIONER                      to set aside the judgment and for a new trial. The
v. ROY HEINE, AND WIFE, KITTY HEINE,                            appellate court affirmed the judgment. On writ of error,
RESPONDENTS                                                     the court held that because petitioner did not allege any
                                                                facts supporting its conclusory allegations that its failure
Prior History: [**1] ON APPLICATION FOR WRIT OF                 to answer was not the result of conscious indifference
ERROR TO THE COURT OF APPEALS FOR THE                           on its part or the part of its agent, petitioner was not
THIRTEENTH DISTRICT OF TEXAS                                    entitled to set aside the judgment. The court held that
                                                                the evidence was insufficient for the amount of lost
Core Terms                                                      profits awarded to respondents because it was not
                                                                based on one complete calculation. Therefore, the court
                                                                affirmed the order denying the motion to set aside the
lost profits, bulldozer, trial court, damages, no evidence,     default judgment, reversed the lost profit award, and
calculation, ref'd, default judgment, contracts, new trial,     remanded the case for a full hearing under Tex. R. Civ.
estimated, questions, repairs, no writ, profits, Brick, trial   P. 243 on the amount of lost profits.
judge, unliquidated damages, court of appeals, legal
insufficiency, measuring, conscious indifference,               Outcome
allegations, inferences, warranty
                                                                The court affirmed the order upholding the order denying
Case Summary                                                    petitioner corporation's motion to set aside a default
                                                                judgment because petitioner did not allege facts
Procedural Posture                                              showing its failure to answer was not due to conscious
                                                                indifference on its or its agent's part. The court reversed
Petitioner, a corporation, applied for writ of error to the     the award of lost profits to respondents, business
Court of Appeals for the 13th District Court (Texas) that       owners, because the amount was not based on one
affirmed the order from the trial court denying its motion      complete calculation and remanded the case for a
to set aside the default judgment in favor of respondents,      hearing on the amount.
owners of a business, and for a new trial, and that
affirmed the award of lost profits to respondents on their      LexisNexis® Headnotes
contract and warranty claims arising from a delay in
repairing a bulldozer.
                                                                  Civil Procedure > Judgments > Pretrial Judgments >
                                                                  General Overview
Overview
                                                                  Civil Procedure > ... > Pretrial Judgments > Default &
Petitioner corporation's predecessor delayed in                   Default Judgments > Default Judgments
repairing the bulldozer of respondent owners of a
                                                                  Civil Procedure > ... > Pretrial Judgments > Default &
business because of a dispute about a warranty. After             Default Judgments > Relief From Default
the bulldozer was repaired, respondents sued petitioner
by serving its agent on contract, warranty, and business          Civil Procedure > Judgments > Relief From Judgments >
claims. When petitioner failed to answer, the trial court         General Overview
granted respondents' motion for a default judgment,               Civil Procedure > ... > Relief From Judgments > Excusable
awarded them lost profits, and denied petitioner's motion         Mistakes & Neglect > Mistake
                                     835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1


  Civil Procedure > Judgments > Relief From Judgments >          Contracts Law > ... > Types of Damages > Compensatory
  Motions for New Trials                                         Damages > General Overview
                                                                 Torts > ... > Commercial Interference > Prospective
HN1 A default judgment should be set aside and a new
                                                                 Advantage > General Overview
trial ordered in any case in which [1] the failure of the
defendant to answer before judgment was not                      Torts > ... > Types of Damages > Compensatory
intentional, or the result of conscious indifference on his      Damages > General Overview
or her part, but was due to a mistake or an accident;
provided [2] the motion for a new trial sets up a              HN5 The correct measure of damages is lost net profit,
meritorious defense and [3] is filed at a time when the        not gross profits.
granting thereof will occasion no delay or otherwise
                                                                 Civil Procedure > Trials > Bench Trials
work an injury to the plaintiff.
                                                                 Civil Procedure > ... > Standards of Review > Substantial
  Civil Procedure > ... > Pretrial Judgments > Default &         Evidence > General Overview
  Default Judgments > Relief From Default
                                                               HN6 In a nonjury trial, where no findings of fact or
  Civil Procedure > Judgments > Relief From Judgments >
                                                               conclusions of law are filed or requested, it will be
  General Overview
                                                               implied that the trial court made all the necessary
  Civil Procedure > Judgments > Relief From Judgments >        findings to support its judgment. When a statement of
  Motions for New Trials                                       facts is brought forward, these implied findings may be
HN2 When applying the Craddock test, the trial court           challenged by factual or legal sufficiency points.
looks to the knowledge and acts of the defendant as
                                                                 Civil Procedure > ... > Standards of Review > Substantial
contained in the record before the court. Where factual
                                                                 Evidence > General Overview
allegations in a movant's affidavits are uncontroverted,
it is sufficient that the motion for new trial and             HN7 In determining a legal sufficiency question, a court
accompanying affidavits set forth facts which, if true,        must consider only the evidence and inferences that
would satisfy the Craddock test. However, conclusory           tend to support the finding, and disregard all evidence
allegations are insufficient.                                  and inferences to the contrary. If there is more than a
                                                               scintilla of evidence to support the finding, the no
  Civil Procedure > Pleading & Practice > Pleadings >
                                                               evidence challenge fails.
  Answers

  Civil Procedure > ... > Pretrial Judgments > Default &         Contracts Law > ... > Types of Damages > Compensatory
  Default Judgments > Relief From Default                        Damages > General Overview
                                                                 Criminal Law & Procedure > ... > Crimes Against Persons >
HN3 When a defendant relies on his or her agent to file
                                                                 Assault & Battery > General Overview
an answer, he or she must demonstrate that both he or
she and his or her agent were free of conscious                  Criminal Law & Procedure > ... > Assault & Battery > Simple
indifference.                                                    Offenses > General Overview

                                                                 Torts > ... > Commercial Interference > Contracts > General
  Civil Procedure > Judgments > Pretrial Judgments >             Overview
  General Overview
                                                                 Torts > ... > Types of Damages > Compensatory
  Civil Procedure > ... > Pretrial Judgments > Default &         Damages > General Overview
  Default Judgments > General Overview
  Civil Procedure > ... > Pretrial Judgments > Default &       HN8 Recovery for lost profits does not require that the
  Default Judgments > Default Judgments                        loss be susceptible of exact calculation. However, the
                                                               injured party must do more than show that they suffered
HN4 Once a default judgment is taken on an                     some lost profits. The amount of the loss must be
unliquidated claim, all allegations of fact set forth in the   shown by competent evidence with reasonable
petition are deemed admitted, except the amount of             certainty. What constitutes reasonably certain evidence
damages. A court rendering a default judgment must             of lost profits is a fact intensive determination. As a
hear evidence of unliquidated damages. Tex. R. Civ. P.         minimum, opinions or estimates of lost profits must be
243.                                                           based on objective facts, figures, or data from which the
                                                                                                             Page 2 of 10
                                     835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1



amount of lost profits can be ascertained. Although               Civil Procedure > Judgments > Pretrial Judgments >
supporting documentation may affect the weight of the             General Overview
evidence, it is not necessary to produce in court the
                                                                  Civil Procedure > ... > Pretrial Judgments > Default &
documents supporting the opinions or estimates.
                                                                  Default Judgments > General Overview

   Contracts Law > Breach > General Overview                      Civil Procedure > ... > Pretrial Judgments > Default &
                                                                  Default Judgments > Default Judgments
HN9 The bare assertion that contracts are lost does not
                                                                  Civil Procedure > Trials > Judgment as Matter of Law >
demonstrate a reasonably certain objective
                                                                  General Overview
determination of lost profits.
                                                                  Civil Procedure > ... > Standards of Review > Substantial
   Contracts Law > ... > Types of Damages > Compensatory          Evidence > General Overview
   Damages > General Overview
   Torts > ... > Commercial Interference > Prospective          HN13 After a default judgment is granted, the trial court
   Advantage > General Overview                                 must hear evidence of unliquidated damages. Tex. R.
                                                                Civ. P. 243. However, as a practical matter, in an
   Torts > Remedies > Damages > General Overview
                                                                uncontested hearing, evidence of unliquidated damages
HN10 Recovery of lost profits must be predicated on             is often not fully developed. This is particularly true
one complete calculation.                                       when the trial judge expresses a willingness to enter
                                                                judgment on the evidence that has been presented.
   Contracts Law > ... > Types of Damages > Compensatory        Therefore, when an appellate court sustains a no
   Damages > General Overview                                   evidence point after an uncontested hearing on
   Torts > ... > Commercial Interference > Prospective          unliquidated damages following a no-answer default
   Advantage > General Overview                                 judgment, the appropriate disposition is a remand for a
   Torts > Remedies > Damages > General Overview                new trial on the issue of unliquidated damages.

HN11 The court does not sanction any one method for             Counsel: FOR PETITIONER: Caldwell, Mr. G. Wade,
determining lost profits. However, once a party has             ATT 003621020, 512/227-7591, Martin, Drought &
chosen a particular method for measuring their lost             Torres, Inc., 2500 NationsBank Plaza, 300 Convent
profits, they must provide a complete calculation.              Street, San Antonio, TX 78205-3789. Golightly, Mr.
                                                                Michael, ATT 008109500, 512/349-4900, Klein & Klein,
   Civil Procedure > Judgments > Pretrial Judgments >
   General Overview                                             70 N.E. Loop 410, Suite 800, San Antonio, TX 78216.
                                                                Simmons,      Ms.   Rebecca,    ATT     018370890,
   Civil Procedure > ... > Pretrial Judgments > Default &
                                                                512/554-5500, Cox & Smith Incorporated, 2000 NBC
   Default Judgments > General Overview
                                                                Bank Plaza, 112 East Pecan Street, San Antonio, TX
   Civil Procedure > ... > Pretrial Judgments > Default &       78205.
   Default Judgments > Default Judgments
   Civil Procedure > Judgments > Relief From Judgments >        FOR RESPONDENTS: Griffin, Mr. David C., ATT
   General Overview                                             008456950, 512/573-5500, Houston, Marek & Griffin,
   Civil Procedure > Judgments > Relief From Judgments >        120 Main Place, Suite 600, P.O. Box 2329, Victoria, TX
   Motions for New Trials                                       77902-2329. Sheppard, Ms. Cynthia T., ATT
   Civil Procedure > ... > Standards of Review > Substantial
                                                                020245500, 512/573-5500, Houston, Marek & Griffin,
   Evidence > General Overview                                  120 Main Place, Suite 600, Post Office Box 2329,
                                                                Victoria, TX 77902-2329. Griffin, Jr., Mr. John, ATT
HN12 As a general matter, when the court sustains a no          008460300, 512/573-5500, Houston, Marek & Griffin,
evidence point of error after a trial on the merits, the        120 Main Place, Suite 600, Post Office Box 2329,
court renders judgment on that point. Tex. R. App. P.           Victoria, TX 77902.
81(c). Texas courts view an appeal from a default
judgment somewhat differently than an appeal from a             Judges: Cook, Doggett
trial on the merits. In part, this is because an adjudication
on the merits is preferred in Texas.                            Opinion by: Eugene A. Cook
                                                                                                             Page 3 of 10
                                     835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1



Opinion                                                        Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133
                                                               S.W.2d 124 (1939). The rule is:
 [*82] OPINION
                                                               HN1 A default judgment should be set aside and a new
This case presents two questions: 1) whether the trial         trial ordered in any case in which [1] the failure of the
court abused its discretion in denying the motion of           defendant to [**4] answer before judgment was not
defendant [**2] Holt Atherton Industries, Inc. to set          intentional, or the result of conscious indifference on his
aside default judgment and for new trial; and 2) whether       part, but was due to a mistake or an accident; provided
there is any evidence to support recovery of lost profits.     [2] the motion for a new trial sets up a meritorious
We hold that the trial court did not abuse its discretion in   defense and [3] is filed at a time when the granting
denying the motion for new trial and that the evidence is      thereof will occasion no delay or otherwise work an
legally insufficient to support recovery of lost profits.      injury to the plaintiff.
Therefore, we affirm in part and reverse in part the
judgment of the court of appeals. 797 S.W.2d 250.              Craddock, 133 S.W.2d at 126; Bank One, Texas, N.A. v.
                                                               Moody, S.W.2d (Tex. 1992).
In January 1987, Roy and Kitty Heine took their
                                                               HN2 When applying the Craddock test, the trial court
bulldozer to Holt Machinery Company for repairs under
                                                               looks to the knowledge and acts of the defendant as
an alleged oral warranty. Holt Machinery did not
                                                               contained in the record before the court. Strackbein v.
recognize the oral warranty. The bulldozer remained in
                                                               Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984). Where
the possession of Holt Machinery but it was not being
                                                               factual allegations in a movant's affidavits are
repaired because Holt Machinery did not recognize the
                                                               uncontroverted, it is sufficient that the motion for new
warranty and the Heines did not agree to pay for repairs.
                                                               trial and accompanying affidavits set forth facts which, if
In August of 1987, Holt Machinery merged into Holt
                                                               true, would satisfy the Craddock test. Cliff v. Huggins,
Atherton Industries, Inc. Holt Atherton then merged into
                                                               724 S.W.2d 778, 779 (Tex. 1987); Strackbein, 671
B.D. Holt Company. In September of 1987, the Heines
                                                               S.W.2d at 38-39. However, conclusory allegations are
agreed to pay for the repairs to their bulldozer. In March
                                                               insufficient. Folsom Investments, Inc. v. Troutz, 632
1988, the Heines brought this action against B.D. Holt,
                                                               S.W.2d 872, 875 (Tex. App.--Fort Worth 1982, writ ref'd
B.D. Holt Co., and Holt Co. of Texas alleging violations
                                                               n.r.e.).HN3
of the Deceptive Trade Practices Act (Tex. Bus. & Com.
Code [**3] §§ 17.41-17.63), breach of express and               [*83] When a defendant relies on his agent to file an
implied warranties, breach of contract, negligence, and        answer, he [**5] must demonstrate that both he and his
tortious interference with business relations. In July         agent were free of conscious indifference. Harris v.
1988, the Heines' Second Amended Original Petition             Lebow, 363 S.W.2d 184, 186 (Tex. Civ. App.--Dallas
added Holt Atherton as a defendant and was properly            1962, writ ref'd n.r.e.). Because Stevenson Atherton
served on Holt Atherton's registered agent, Stevenson          was Holt Atherton's registered agent, Holt Atherton
Atherton. In August 1988, the trial court rendered default     must show that Stevenson Atherton's failure to answer
judgment against Holt Atherton due to its failure to           was due to a mistake or accident rather than intentional
appear and answer. The Heines severed their cause of           or due to conscious indifference.
action against Holt Atherton to obtain a final judgment.
Subsequently, the trial court stayed the actions against       The evidence introduced by Holt Atherton in support of
the other defendants pending the outcome of this               its motion for new trial was uncontroverted by the
appeal. Holt Atherton moved to set aside the default           Heines. Therefore, the trial court could accept this
judgment and for new trial. The trial court denied Holt        evidence as true and apply the Craddock requirements.
Atherton's motion, and the court of appeals affirmed.          The only evidence Holt Atherton presented to the trial
797 S.W.2d 250.                                                court to negate intentional disregard or conscious
                                                               indifference was the affidavit of Stevenson Atherton,
I.                                                             which states:

A trial court's discretion in determining whether to grant     The failure of the corporation to file an answer herein
a new trial after the court renders a default judgment         was due to accident and mistake due to the complete
must be referenced to the guiding rule set out in              lack of any knowledge as to the facts or circumstances
                                                                                                           Page 4 of 10
                                       835 S.W.2d 80, *83; 1992 Tex. LEXIS 75, **8



involved in this cause. Holt Atherton Industries, Inc. has          [**8] Holt Atherton argues that there is no evidence
never done any business with Roy or Kitte [sic] Heine,             supporting the trial court's award of damages for lost
nor repaired any type of equipment nor provided any                profits. "HN6 In a nonjury trial, where no findings of fact
type of service of any kind to either Roy or Kitte [sic]           or conclusions of law are filed or requested, it will be
Heine. The corporation [**6] known as Holt Atherton                implied that the trial court made all the necessary
Industries, Inc. has not been actively involved in the             findings to support its judgment." Burnett v. Motyka, 610
operation of a business that repairs heavy equipment of            S.W.2d 735, 736 (Tex. 1980) (citing Goodyear Tire and
any type during the time period set forth in the Heine's           Rubber Co. v. Jefferson Construction [*84] Co., 565
[sic] lawsuit.                                                     S.W.2d 916 (Tex. 1978); Lassiter v. Bliss, 559 S.W.2d
                                                                   353 (Tex. 1978)). When, as in this case, a statement of
Holt Atherton argues that its motion and affidavit                 facts is brought forward, these implied findings may be
established that it failed to answer due to an accident or         challenged by factual or legal sufficiency points.
mistake. Atherton's statement that no answer was filed             Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.
"due to accident and mistake" is merely a conclusory               1989); Burnett, 610 S.W.2d at 736. HN7 In determining
allegation. There is no explanation of the nature of the           a legal sufficiency question, a court must consider only
mistake. The factual allegations only serve to set up a            the evidence and inferences that tend to support the
meritorious defense. There are no factual allegations              finding, and disregard all evidence and inferences to
supporting the first part of the Craddock test. The                the contrary. Best v. Ryan Auto Group, Inc., 786 S.W.2d
essence of Holt Atherton's evidence is that it did not file        670, 671 (Tex. 1990); King v. Bauer, 688 S.W.2d 845,
an answer because Stevenson Atherton did not think                 846 (Tex. 1985). If there is more than a scintilla of
Holt Atherton could possibly be held liable.                       evidence to support the finding, the no evidence
                                                                   challenge fails. Stafford v. [**9] Stafford, 726 S.W.2d
The trial court did not abuse its discretion in denying the        14, 16 (Tex. 1987); Kindred v. Con/Chem, Inc., 650
motion because it could have concluded, based on the               S.W.2d 61, 63 (Tex. 1983).
evidence before it, that Holt Atherton's failure to answer
was intentional or due to conscious indifference. There            HN8 Recovery for lost profits does not require that the
was no support given to the allegation of mistake or               loss be susceptible of exact calculation. White v.
accident. Because we hold that the first element of the            Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.
Craddock test was not satisfied, we do not reach [**7]             1983); Southwest Battery Corp. v. Owen, 131 Tex. 423,
the other two elements.                                            115 S.W.2d 1097, 1098 (1938). However, the injured
                                                                   party must do more than show that they suffered some
II.                                                                lost profits. The amount of the loss must be shown by
                                                                   competent evidence with reasonable certainty. White,
HN4 Once a default judgment is taken on an                         651 S.W.2d at 262; Southwest Battery, 115 S.W.2d at
unliquidated claim, all allegations of fact set forth in the       1098. What constitutes reasonably certain evidence of
petition are deemed admitted, except the amount of                 lost profits is a fact intensive determination. As a
damages. Morgan v. Compugraphic Corp., 675 S.W.2d                  minimum, opinions or estimates of lost profits must be
729, 731 (Tex. 1984). A court rendering a default                  based on objective facts, figures, or data from which the
judgment must hear evidence of unliquidated damages.               amount of lost profits can be ascertained. See, e.g.,
TEX. R. CIV. P. 243; see Morgan, 675 S.W.2d at 731.                Pena v. Ludwig, 766 S.W.2d 298, 304 (Tex. App.--Waco
The trial court, in this case, held a hearing and                  1989, no writ); Frank B. Hall & Co. v. Beach, Inc., 733
determined that the Heines suffered damages in the                 S.W.2d 251, 258 (Tex. App.--Corpus Christi 1987, writ
amount of $ 159,665 including $ 120,000 for lost profits.          ref'd n.r.e.); Keller v. Davis, 694 S.W.2d 355, 357 (Tex.
1
                                                                   App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.);

1
   The trial court's judgment includes the $ 120,000 as "Loss of Income Due to Absence of Dozer." Holt Atherton notes that
HN5 the correct measure of damages is lost net profit, not gross profits. See Turner v. PV Int'l Corp., 765 S.W.2d 455, 465 (Tex.
App.--Dallas 1988, writ denied per curiam, 778 S.W.2d 865 (Tex. 1989)); Copenhaver v. Berryman, 602 S.W.2d 540, 544 (Tex.
Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). However, read most favorably to the Heines, the record indicates that the trial
court's judgment is based on an amount the court determined remained after the Heines had paid out expenses. Therefore, the
court applied the correct measure of damages. To avoid confusion in this opinion, we refer to the $ 120,000 award as "lost
profits."
                                                                                                                    Page 5 of 10
                                        835 S.W.2d 80, *84; 1992 Tex. LEXIS 75, **9



Automark of Texas v. Discount [**10] Trophies, 681              suggested that Mrs. Heine could be more helpful
S.W.2d 828, 830 (Tex. App.--Dallas 1984, no writ).              because she kept the books for the Heines. Mrs. Heine
Although supporting documentation may affect the                testified that she could not say what their lost profits
weight of the evidence, it is not necessary to produce in       were without looking [**12] [*85] at their books. When
court the documents supporting the opinions or                  the judge asked what the Heines showed as profits on
estimates. See, e.g., Pena, 766 S.W.2d at 304; Keller,          their income tax returns for 1985 or 1986, the years
694 S.W.2d at 357. 2                                            preceding the year that Holt Atherton kept their
                                                                bulldozer, Mrs. Heine did not know. However, Mr. Heine
The Heines' testimony was the only evidence presented           responded that their income tax return showed profits of
concerning their lost profits and can be divided into two       about $ 120,000. 3 Both Heines testified that in 1985,
segments. First, Mr. Heine was examined by his                  they had two bulldozers that operated about half of the
counsel. Then, the trial judge questioned both Heines.          time because business was slow. Apparently the trial
                                                                judge determined that one bulldozer working full-time
When Mr. Heine was examined by his counsel, only one            would earn as much in thirteen months as two bulldozers
question was asked which touched on lost profits. The           working half-time would earn in twelve months.
relevant question and answer are:
                                                                There are two problems with this analysis. First, the
Q. Now as a result of the defendant keeping the dozer           Heines never offered any evidence showing that there
for eight months, did you lose out on $ 200,200 in lost         was enough work to keep two bulldozers working
income during that time period?                                 full-time over the relevant thirteen month period. This is
                                                                particularly significant here [**13] because the Heines
A. Yes, sir, I did.                                             testified that there had not been enough work in the
                                                                preceding years to keep both bulldozers working
Even if this testimony were otherwise sufficient, [**11]        full-time. 4 Second, the Heines never showed that they
lost income is not the correct measure of damages. See          were entitled to recover lost profits for the entire thirteen
supra note 1. Further, this testimony is legally insufficient   month period. See Morgan, 675 S.W.2d at 731 (must
because it does not provide any indication of how the           show damages were caused by event sued on). The
Heines determined what their lost profits were. See,            total down time may have been thirteen months.
e.g., Village Square, Ltd. v. Barton, 660 S.W.2d 556,           However, according to Mr. Heine's testimony, Holt
559-60 (Tex. App.--San Antonio 1983, writ ref'd                 Atherton only kept the bulldozer for eight months before
n.r.e.)(testimony stating only total amount of lost profits     starting repairs.
held legally insufficient); Frank B. Hall & Co., 733 S.W.2d
at 259 (same). The court does not have any basis for            In response to further questions by the trial judge, Mr.
determining whether the damages were established                Heine testified that the Heines lost several contracts
with reasonable certainty or were based on pure                 because they did not have their bulldozer available. Mr.
speculation. This question and answer are legally               Heine was not able to specify which contracts they lost,
insufficient to prove lost profits.                             how many they lost, how much profit they would have
                                                                had from the contracts, or who would have awarded
After the Heines' counsel completed his questions, the          them contracts. The Heines could have supported their
trial judge asked additional questions to determine what        lost profits with testimony that they had lost out on
the Heines' lost profits were and how the Heines                specific [**14] contracts because they did not have their
concluded that their lost income was $ 200,200. The             bulldozer available. See Pace Corp. v. Jackson, 155
judge started out by questioning Mr. Heine. Mr. Heine           Tex. 179, 284 S.W.2d 340, 349 (Tex. 1955). However,
could not provide answers to the judge's questions but          HN9 the bare assertion that contracts were lost does

2


We disapprove Automark of Texas, 681 S.W.2d at 830, to the extent that it holds the supporting records must he produced in
court.
3
   Although Mr. Heine was not on the witness stand when he made this statement, it was transcribed by the court reporter and
appears in the statement of facts.
4
    Mr. Heine testified "'85 was light; '86 was disastrous."
                                                                                                               Page 6 of 10
                                      835 S.W.2d 80, *85; 1992 Tex. LEXIS 75, **14



not demonstrate a reasonably certain objective                   that point. TEX. R. APP. P. 81(c); Mobil Oil Corp. v.
determination of lost profits. See Pace, 284 S.W.2d at           Frederick, 621 S.W.2d 595, 596 (Tex. 1981); National
348-49; Pena v. Ludwig, 766 S.W.2d 298, 301-02 (Tex.             Life and Accident Ins. Co. v. Blagg, 438 S.W.2d 905,
App.--Waco 1989, no writ).                                       909 (Tex. 1969); Garza v. Alviar, 395 S.W.2d 821, 823
                                                                 (Tex. 1965). Texas courts view an appeal from a default
The testimony elicited by the trial judge provides pieces        judgment somewhat differently than an appeal from a
of several different methods of calculating lost profits.        trial on the merits. In part, this is because an adjudication
However, the Heines were not able to provide evidence            on the merits is preferred in Texas. See, e.g., In re
supporting one complete calculation. HN10 Recovery               T.B.S., 601 S.W.2d 539 (Tex. Civ. App.--Tyler 1980, no
of lost profits must be predicated on one complete               writ).
calculation. See, e.g., Fleming Mfg. Co. v. Capitol Brick,
Inc., 722 S.W.2d 399, 402 (Tex. 1986)(evidence legally           HN13 After a default judgment is granted, the trial court
sufficient to support lost profits; did not discuss              must hear evidence of unliquidated damages. TEX. R.
evidence), on remand, 734 S.W.2d 405 (Tex.                       Civ. P. 243. However, as a practical matter, in an
App.--Austin 1987, writ ref'd n.r.e.)(evidence held              uncontested hearing, evidence of unliquidated damages
factually insufficient to support lost profits; detailed         is often not fully developed. This is particularly true
evidence shows what was in the record for the Supreme            when the trial judge expresses a willingness to enter
Court to consider as part of no evidence review;                 judgment on the evidence that has been presented.
demonstrates a complete calculation of lost profits);            Therefore, when an appellate court sustains a no
Chemical Express Carriers, Inc. v. French, 759 S.W.2d            evidence point after an uncontested [**17] hearing on
 [**15] 683, 687-88 (Tex. App.--Corpus Christi 1988,             unliquidated damages following a no-answer default
writ denied)(demonstrating a complete calculation of             judgment, the appropriate disposition is a remand for a
lost profits); Keller, 694 S.W.2d at 357 (same); Reliance        new trial on the issue of unliquidated damages.
Universal Inc. v. Sparks Indus. Serv., Inc., 688 S.W.2d
890, 893-96 (Tex. App.--Beaumont 1985, writ ref'd                We remand the cause to the trial court for a new trial on
n.r.e.)(same); Village Square, Ltd., 660 S.W.2d at               the issue of lost profits.
559-60 (statement of total lost profits without supporting
analysis held legally insufficient); Frank B. Hall & Co.,        Eugene A. Cook,
733 S.W.2d at 259 (same); Barbier v. Barry, 345 S.W.2d
557, 563 (Tex. Civ. App.--Dallas 1961, no writ)(held no          Justice
evidence of lost profits because no evidence of
                                                                 Concurring and Dissenting Opinion by Justice Doggett
supporting calculations). HN11 We do not sanction any
                                                                 joined by Justice Mauzy.
one method for determining lost profits. Southwest
Battery Corp., 115 S.W.2d at 1099. However, once a
                                                                 OPINION DELIVERED: June 17,1992.
party has chosen a particular method for measuring
their lost profits, they must provide a complete
                                                                 Concur by: LLOYD DOGGETT (In part)
calculation. The Heines have not done that. Therefore,
the evidence is legally insufficient to provide a [*86]
                                                                 Dissent by: LLOYD DOGGETT (In part)
reasonable basis for determining the Heines' lost profits.

III.                                                             Dissent
We affirm the court of appeals' holding that the trial           CONCURRING AND DISSENTING OPINION
court did not abuse its discretion in denying Holt
Atherton's motion for new trial and reverse [**16] the           In overturning a judgment for this family business, the
court of appeals' holding that the evidence supporting           majority imposes new obstacles to any commercial
an award of lost profits was legally sufficient. HN12 As a       enterprise that has wrongfully suffered a loss of profits.
                                                                 1
general matter, when we sustain a no evidence point of             Today's opinion abandons our well established rules
error after a trial on the merits, we render judgment on         governing review of legal sufficiency of the evidence

1
   In burdening small businesses like the one involved here, the majority continues an unfortunate trend of insensitivity to the
realities of independent business. See Caller-Times Publishing Co. v. Trim Communications, Inc., 826 S.W.2d 576, n.4 (Tex.
                                                                                                                  Page 7 of 10
                                     835 S.W.2d 80, *86; 1992 Tex. LEXIS 75, **17



and disavows this particular businessperson's sworn              finding, and disregarding all contrary evidence and
testimony as totally worthless. Although I concur in that        inferences.
part of the judgment affirming liability, I dissent from the
court's decision to ensure that lost profits stay lost.          Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458
                                                                 (Tex. 1992). Only when reasonable minds cannot differ
 [**18] While covered by a Holt Atherton repair warranty,        in concluding that the evidence offered lacks probative
a part broke on one of the two D-8 Caterpillar bulldozers        force will it be held to constitute the legal equivalent of
owned and operated by Roy and Kitty Heine. Instead of            no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d
providing prompt repairs, Holt Atherton allegedly left           61, 63 (Tex. 1983). Recognizing that where "more than
them without the use of the bulldozer for about a year.          a scintilla of evidence [**20] [supports] the trial court's
Before granting the Heines a default judgment, the trial         finding, the no evidence challenge fails," at S.W.2D
court appropriately heard evidence on their unliquidated         at, the majority misapplies the standard and implicitly
damages including lost profits. See Morgan v.                    creates new requirements for what constitutes a
Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).             "scintilla" in the context of lost profits.
Roy calculated lost income to be $ 200,200, based on
                                                                 To support a default judgment in Capitol Brick, Inc. v.
the days the machine was incapacitated and also on
                                                                 Fleming Mfg. Co., 722 S.W.2d 399 (Tex. 1986), a small
"several" lost land clearing contracts, one of which, the
                                                                 business gave evidence of its lost profits arising from
O'Connor contract, was open-ended as to the amount
                                                                 loss of use of an inadequately repaired brick-making
of work. He further testified that by charging $ 80 per
                                                                 machine. The court of appeals reversed on other
hour for bulldozer work, he realized an "immediate
                                                                 nonevidentiary grounds. In reversing the judgment of
profit" of about $ 30 to $ 40 per hour. Additionally, he
                                                                 the court of appeals, we addressed a previously
described a job for other of his equipment, which was
                                                                 unconsidered no evidence challenge, finding that "the
lost due to customer impatience with the extended
                                                                 record reflects more than a scintilla of competent
delays resulting from breakdown of the bulldozer. His
                                                                 evidence to support the . . . lost profits." Id. at 402. The
total figure included an adjustment "for the time that
                                                                 record there was strikingly similar to that here, as
there might not have been anything." Referencing the
                                                                 indicated by the writing of the court of appeals on
probable familiarity of experienced business people
                                                                 remand, addressing the remaining factual insufficiency
with approximate [**19] costs and profit margins, the
                                                                 challenge:
trial court inquired as to profits shown on their recent
income tax returns. The Heines [*87] responded that in           Sprott [its president] testified that . . . Capitol Brick's
the year before the breakdown, they reported a profit of         mold press which would have produced this particular
about $ 120,000 by working both dozers full time for six         ten inch brick was idle for 11 1/2 weeks; that during
months. As the trier of fact, the trial judge found damages      normal conditions the press would have produced some
for lost profits in this lesser amount, rather than the          l,750,000 [**21] bricks; and that these bricks would
larger initial estimate.                                         have sold for $ 120 per thousand, or some $ 207,000.
On appeal, Holt Atherton urges that this testimony was           Sprott also indicated a 25% net profit figure which
"too speculative" and constituted no evidence to support         translates into lost profits of $ 51,750. This was the only
a finding of damages for lost profits. In reviewing a no         evidence concerning Capitol Brick's unliquidated
evidence point, we have recently written that                    damage claim.
consideration must be limited to:
                                                                 Fleming Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405,
only the evidence and inferences tending to support the          406 (Tex. App.--Austin 1987, writ ref'd n.r.e.). 2 [**22] Yet
jury's finding, viewed most favorably in support of the          today's opinion burdens businesses by disregarding
1992)(Doggett J., dissenting)(small business made easy prey for anticompetitive, monopolistic practices); Crim Truck & Tractor
Co. v. Navistar Int'l Trans. Corp., 823 S.W.2d 591, 597 (Tex. 1992)(Mauzy, J., dissenting)(local dealer denied remedy for abuse
by a frachisor).
2


Similarly, in Texas Gas Explor. v. Broughton Offshore, 790 S.W.2d 781, 789 (Tex. App.--Houston [14th Dist.] 1990, no writ), a
party's uncontroverted testimony, based on his industry experience, regarding estimated profits from disabled equipment was
held to constitute legally sufficient evidence.
                                                                                                                 Page 8 of 10
                                    835 S.W.2d 80, *87; 1992 Tex. LEXIS 75, **22



our prior writing, creating a higher evidentiary standard      263 (Tex. 1983); Davis v. Small Business Inv. Co. of
for small service-oriented companies, and presuming to         Houston, 535 S.W.2d 740 743 (Tex. Civ.
conduct a factual sufficiency review on a no evidence          App.--Texarkana 1976, writ ref'd n.r.e.) (victim must
point of error. The majority considers essentially the         present evidence from which factfinder can reasonably
same factual questions previously deemed the function          infer that some profit would have been made and
of the court of appeals: 3 whether the market demand           reasonably estimate the amount of loss). Similarly,
would have supplied as much work as the Heines                  [**24] in Pace Corp. v. Jackson, 155 Tex. 179, 284
estimated, the certainty of specific contract prices, and      S.W.2d 340, 348 (Tex. 1958), this court concluded that
whether the second bulldozer could have handled the            measuring lost profits is an inherently imperfect
total market demand. S.W.2d at.                                undertaking. See also Pena v. Ludwig, 766 S.W.2d 298,
                                                               301 (Tex. App.--Waco 1989, no writ). Small service
To negate the award of lost profits, the majority must
                                                               businesses offering skillful operation of their equipment
take something and call it nothing -- it must treat the
                                                               are entitled to some latitude in measuring inexact lost
Heines' sworn testimony, given in response to a series
                                                               profits sustained from loss of use. Chemical Exp.
of questions from the trial judge, as devoid of any legal
                                                               Carriers, Inc. v. French, 759 S.W.2d 683, 687-88 (Tex.
value. This contrived disposition results from the
                                                               App.--Corpus Christi 1988, writ denied)(owner's
impossibility of a remand to the court of appeals for a
                                                               estimated lost profits for charter company's disabled
factual insufficiency review that Holt Atherton has falled
                                                               airplane legally sufficient). See also Texas Tool Traders,
to request.
                                                               Inc. v. Mosley Machinery Co., 422 S.W.2d 229(Tex. Civ.
Denial of relief in this case has ramifications that extend    App.--Waco 1967, no writ).
to all commercial litigation [*88] in which profits are an
issue. The majority begins by eroding the distinction we       The majority's professed lack of "any basis for
have long recognized between uncertainty as to the             determining whether the damages were established
occurrence of lost profits and uncertainty merely as           with reasonable certainty or were based on pure
 [**23] to their exact amount. The former, but not the         speculation,"     S.W.2d     at, discounts the Heines'
latter, is fatal to recovery. See, e.g., Southwest Battery     response to the trial court's inquiry about how they
Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099             "calculated" their damages. They referenced hourly
(Tex. 1938).                                                   charges, lost contracts, cost factors, and down-time
                                                               adjustments. Estimations, when "given in terms of
It then announces new requirements that a party must           calculations, [constitute] more than [**25] conjecture,
chose a particular method for measuring lost profits,          speculation or guesswork" and must be evaluated by
   S.W.2d at and that "recovery of lost profits must be        the finder of fact. Reliance Universal Inc. v. Sparks
predicated on one complete calculation." Id. at . We           Industrial Services, 688 S.W.2d 890, 895-96 (Tex.
have previously declined to construct such inflexible          App.--Beaumont 1985, writ ref'd n.r.e.).
rules that could unfairly bar recovery:
                                                               Though criticized by the majority for failing to explain
It is impossible to announce with exact certainty any          "that they had lost out on specific contracts," S.W.2d
rule measuring the profits the loss for which recovery         at, the Heines were not necessarily required to identify
may be had. . . . A party who breaks his contract cannot       specific, measurable, lost contracts because they were
escape liability because it is impossible to state or prove    an existing business with a history of profitability. 4 Such
a perfect measure of damages.                                  an operation ordinarily encounters lesser evidentiary
                                                               hurdles to show lost profits already sustained than
Southwest Battery Corp. 115 S.W.2d at 1099; accord             would a business with little record of past earnings that
White v. Southwestern Bell Tel. Co., 651 S.W.2d 260,           seeks to show future lost profits. See Barbier v. Barry,

3


Compare Capitol Brick, 734 S.W.2d at 407, in which the court of appeals on remand examined the factual questions of whether
the market demand existed for the estimated production it would have produced if the machine had been working, the certainty
of the estimated price, and whether the demand could have been met from existing inventory in determining that evidence
presented was factually insufficient.
4


                                                                                                              Page 9 of 10
                                      835 S.W.2d 80, *88; 1992 Tex. LEXIS 75, **25



345 S.W.2d 557, 563 (Tex. Civ. App.--Dallas 1961, no              affirmed.
writ). Among the methods a party may use to calculate
its lost profits is either a history of profitability or the      Lloyd Doggett
actual existence of lost contracts. Allied Bank West
Loop v. C.B.D. Assoc., 728 S.W.2d 49, 54-55 (Tex.                 Justice
App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.).
                                                                  Justice Mauzy joins in this concurring and dissenting
 [**26] There is undoubtedly some legal evidence to               opinion.
support the Heines' lost profits damages. Since there is
no factual insufficiency point of error requiring further         Opinion delivered: June 17, 1992.
review by the court of appeals, its judgment should be




Nor were they required to prove their previous profits "remained stable or [grew] to support award for lost profits in subsequent
years." Martin v. Lou Poliquin Enterprises , Inc., 696 S.W.2d 180, 187 (Tex. App.-- Houston [14th Dist.] 1985, writ ref'd n.r.e.).
                                                                                                                  Page 10 of 10
                                                                                                                     Page 1




Caution
As of: Mar 30, 2015

                 HUNT OIL COMPANY, et al., Petitioners, v. WILLIS MOORE, TRUSTEE, Re-
                                               spondent

                                                        No. C-1219

                                            SUPREME COURT OF TEXAS

                              639 S.W.2d 459; 1982 Tex. LEXIS 324; 25 Tex. Sup. J. 476


                                                       July 21, 1982

PRIOR HISTORY:                [**1]      From Henderson         judgment tracked the Partial Summary Judgment [**2]
County Twelfth District.                                        and then ordered that Hunt Oil pay Moore the sum of
                                                                $377,058.52 together with 9% interest. The judgment
                                                                denied all other relief not expressly granted.
COUNSEL: Ralph B. Shank, Dallas, Texas, for Peti-
                                                                     Moore and Hunt Oil filed separate appeals. Hunt
tioners.
                                                                Oil appealed from the trial court's order terminating the
                                                                lease, vesting title in Moore and awarding damages
 Edward Kliewer, Jr., Dallas, Texas, for Respondent.
                                                                based on the accounting. Moore filed a motion to dismiss
                                                                Hunt Oil's appeal. Moore alleged that the Partial Sum-
OPINION BY: PER CURIAM
                                                                mary Judgment was in fact a final appealable judgment
                                                                from which Hunt Oil should have perfected its appeal.
OPINION
                                                                Thus, Moore alleged, Hunt Oil did not timely perfect its
      [*459] Willis Moore, Trustee, brought suit against        appeal. The court of appeals granted Moore's motion
Hunt Oil Company and others (Hunt Oil) seeking to have          and dismissed [*460] Hunt's appeal for want of juris-
a lease declared terminated, to have cloud on title re-         diction. 629 S.W.2d 260.
moved, and to have title quieted in himself. Addition-
                                                                     The court of appeals relied on Ferguson v. Fergu-
ally, Moore sought to recover damages and prejudgment
                                                                son, 161 Tex. 184, 338 S.W.2d 945 (1960), in dismissing
interest. Both parties filed Motions for Summary Judg-
                                                                Hunt Oil's appeal. In Ferguson, the court ordered an
ment. The trial court entered a "Partial Summary Judg-
                                                                accounting be made and further ordered that one-half of
ment" granting Moore's motion. This judgment de-
                                                                the profits be paid to the plaintiff. This judgment was
clared the lease terminated, quieted title in Moore and
                                                                considered final and appealable because "there remains
ordered the cloud be removed. The Partial Summary
                                                                only the rendering of one-half of the profits over a defi-
Judgment further ordered that Hunt Oil "render an ac-
                                                                nite period of time. . . ." Id. at 338 S.W.2d at 947.
counting to [Moore] for all oil, gas and other minerals
produced . . . which is attributable to [Moore's interest]."         As this Court held in Pan [**3] American Pe-
Moore was awarded costs of the suit, but the judgment           troleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex.
did not mention Moore's claim for prejudgment interest.         550, 324 S.W.2d 200 (1959), however, "a summary
                                                                judgment which does not dispose of all parties and issues
     After the accounting was completed by Hunt Oil,
                                                                in the pending suit is interlocutory and not appealable . . .
Moore filed a Motion for Final Judgment. The court en-
                                                                ." The "Partial Summary Judgment" entered in this case
tered a Final Judgment on May 16, 1980. The final
                                                                                                              Page 2
                                     639 S.W.2d 459, *; 1982 Tex. LEXIS 324, **;
                                                 25 Tex. Sup. J. 476

only established ownership in the leasehold estate and       ble. Hunt Oil timely perfected its appeal from the Final
ordered an accounting to be filed in the future. Any         Judgment and the court of appeals erred in dismissing the
award of damages based on the accounting necessarily         appeal for want of jurisdiction.
had to occur at a subsequent time. See Perkins v.
                                                                 Pursuant to Rule 438 of the Texas Rules of Civil
Springstun, 557 S.W.2d 343 (Tex. Civ. App. -- Austin
                                                             Procedure, we grant the writ of error and, without hear-
1977, writ ref'd n.r.e.). Further, the judgment did not
                                                             ing oral argument, reverse the judgment of the [**4]
address Moore's claim for prejudgment interest.
                                                             court of appeals and remand the cause to the court of
     The Partial Summary Judgment did not dispose of         appeals for consideration of the merits of the appeal.
all issues, therefore, it was interlocutory and unappeala-
                                                                                                                 Page 1




Caution
As of: Mar 30, 2015

                IN RE FRANK BOKELOH, GABRIELE BOKELOH AND JOHN DAUGHERTY
                                   REALTORS, INC., Relators

                                                 NO. 14-00-00366-CV

                  COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                     21 S.W.3d 784; 2000 Tex. App. LEXIS 4326


                                             June 7, 2000, Opinion Filed

PRIOR HISTORY:         [**1] Appeal from 80TH                I. FACTUAL AND PROCEDURAL BACKGROUND
DISTRICT COURT, Harris County; Scott Link, Judge.
                                                                  In August 1998, the real parties in interest, Thomas
                                                             and Denise Bousquet (the "Bosquets"), filed suit in the
DISPOSITION:           Petition for Writ of Mandamus
                                                             80th Judicial District Court of Harris County against
conditionally Granted.
                                                             relators, Frank Bokeloh, Gabriele Bokeloh, John Daugh-
                                                             erty Realtors, Inc. and Maureen Boyd, for alleged mis-
                                                             representations [**2] arising out of the sale of real es-
COUNSEL: David A. Carp, James A. Dunn, J. Richard
                                                             tate. The Bosquets encountered problems in their at-
Hargis of Houston, TX, for Relators.
                                                             tempts to obtain service of process on the relators and on
                                                             March 18, 1999, the trial court notified them of its intent
Thomas G. Bousquet of Houston, TX, for Respondent.
                                                             to dismiss their case on March 29, 1999, for want of
                                                             prosecution. Citing the absence of service or a filed an-
JUDGES: Kem Thompson Frost, Justice. Panel consists
                                                             swer as grounds for dismissal of the case, the trial court's
of Justices Amidei, Anderson and Frost.
                                                             notice informed the Bosquets that their case would be
                                                             dismissed unless "a default judgment is signed, an an-
OPINION BY: Kem Thompson Frost
                                                             swer is filed, or service is accomplished." In response,
                                                             they filed a verified motion to retain on March 29, 1999.
OPINION
                                                             The motion explained that they diligently had attempted
     [*786] ORIGINAL PROCEEDING                              to serve relators, who were now back in the United States
                                                             after having been out of the country "for some time." 1
    WRIT OF MANDAMUS
                                                             The Bosquets claimed they needed additional time, not
     In this original proceeding, relators seek a writ of    for delay, but to obtain service of process. They request-
mandamus directing the trial court to vacate its May 4,      ed the trial court to retain the case on the docket until
1999, order of reinstatement entered in the trial court      June 28, 1999.
cause number 98- 37222, styled Thomas Bousquet Jr., et
ux. v. Frank Bokeloh, et ux. Relators contend the order of          1 Although the Bokelohs lived near London,
reinstatement is void because the trial court's plenary             England for some period of time, the other rela-
power expired before the entry of the order. We agree               tors/defendants John Daugherty Relators, Inc. and
and conditionally grant the writ of mandamus.                       Maureen Boyd are residents of Houston, Harris
                                                                    County, Texas. The Bosquets offered no explana-
                                                                                                                   Page 2
                                   21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **


       tion for their failure to obtain service on these       (Tex. 1989). Mandamus relief is available if the trial
       parties.                                                court abuses its discretion, either in resolving factual
                                                               issues or in determining legal principles when there is no
      [**3] [*787] The trial court dismissed the case
                                                               other adequate remedy by law. See Walker v. Packer,
on March 31, 1999; however, the court clerk's notice of
                                                               827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses
the dismissal is postmarked April 29, 1999. The Bos-
                                                               its discretion if "it reaches a decision so arbitrary and
quets claim their counsel received it on May 3, 1999, and
                                                               unreasonable as to amount to a clear and prejudicial error
immediately contacted the trial court's administrative
                                                               of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d
staff to point out that they had filed a motion to retain
                                                               916, 917 (Tex. 1985). When alleging that a trial court
before the dismissal. On May 4, 1999, the trial court re-
                                                               abused its discretion in its resolution of factual issues,
instated the case on its own motion. Thereafter, relators
                                                               the party must show the trial court reasonably could have
were served and answered the lawsuit.
                                                               reached only one decision. See id. at 918. An abuse of
      Trial was set for April 3, 2000. In February 2000,       discretion also occurs if the trial court clearly failed to
relators moved the trial court to vacate its order of rein-    analyze or apply the law correctly. See Walker, 827
statement, alleging the court did not have jurisdiction to     S.W.2d at 840.
enter it. On March 6, 2000, the Bosquets filed a response
that also purported to be a sworn motion establishing the      III. ANALYSIS OF THE ISSUES
date their counsel first received actual knowledge of the
                                                                    The trial court entered its order of reinstatement
dismissal (via the clerk's post card notice of dismissal
                                                               more than thirty days after dismissing [**6] the case.
and final judgment). The Bosquets, however, insisted
                                                               Generally, a trial court loses plenary jurisdiction thirty
there was no need for a hearing on the matter because the
                                                               days after entry of final judgment. See generally TEX. R.
trial court already had reinstated the case. The trial court
                                                               CIV. P. 329b; see also Thermex Energy Corp. v. Rantec
denied relators' motion to vacate the order of reinstate-
                                                               Corp., 766 S.W.2d 402, 403 (Tex. App. --Dallas 1989, no
ment, prompting them to file a petition for writ of man-
                                                               writ). The Bosquets, relying on Texas Rules of Civil
damus in this court. Relators claim the trial court's [**4]
                                                               Procedure 165a and 306a, argue that the trial court's
ruling attempting to reinstate the case is void, and ask
                                                               jurisdiction was extended beyond the original period and,
this court to compel the trial court to vacate its order of
                                                               therefore, it had jurisdiction to reinstate the case.
reinstatement.
                                                                     A timely and proper motion to reinstate extends the
     With the April 2000 trial setting fast approaching,
                                                               trial court's plenary power until thirty days after the mo-
relators moved for a continuance in the lower court.
                                                               tion is overruled either by a written signed order or by
When, four days before trial, the court below had not
                                                               operation of law. See South Main v. Wittig, 909 S.W.2d
ruled on that motion, relators filed an emergency motion
                                                               243, 244 (Tex. App.--Houston [*788] [14th Dist.]
for a stay in this court, seeking relief from the imminent
                                                               1995, orig. proceeding) (citing TEX. R. CIV. P. 165a(3)).
trial setting. 2 We stayed the trial court proceedings to
                                                               Where, as here, a court dismisses a case for want of
protect this court's jurisdiction pending our ruling on the
                                                               prosecution, a party may file a motion to reinstate within
petition for writ of mandamus.
                                                               thirty days after the order of dismissal is signed or within
                                                               the period provided by Rule 306a. See Levit v. Adams,
       2        RELATORS WAITED NEARLY
                                                               850 S.W.2d 469, 470 (Tex. 1993) (explaining that the
       ELEVEN MONTHS AFTER REINSTATE-
                                                               period provided by Rule 306a must begin within 90 days
       MENT OF THE CASE AND TWO BUSI-
                                                               of judgment; no provision [**7] for notice received
       NESS DAYS BEFORE TRIAL TO CHAL-
                                                               more than 90 days after judgment, TEX. R. CIV. P.
       LENGE THE TRIAL COURT'S REIN-
                                                               165a(3)). Because the trial court dismissed the Bosquets'
       STATEMENT ORDER BY MANDAMUS.
                                                               case on March 31, 1999, a motion to reinstate was due by
       NEVERTHELESS,       LACHES   CANNOT
                                                               April 30, 1999 - one day after the postmark on the notice
       CONFER JURISDICTION UPON A COURT
                                                               of dismissal and three days before the Bosquets claim
       THAT HAS LOST JURISDICTION. SEE
                                                               their counsel received it. The trial court signed an order
       DUBAI PETROLEUM CO. V. KAZI, 12 S.W.3d
                                                               reinstating the case on May 4, 1999, after the original
       71, 76 (TEX. 2000).
                                                               period of jurisdiction had expired. The Bosquets never
    II. STANDARD OF REVIEW                                     filed a motion to reinstate the case. Now, they contend
                                                               their motion to retain, filed before the trial court dis-
     Mandamus is intended to be an extraordinary reme-         missed the case, should be treated as a premature motion
dy, available only in very limited circumstances [**5]         to reinstate. Thus, they argue, their motion to retain ex-
"involving manifest and urgent necessity and not for
                                                               tended the trial court's plenary power under Rule
grievances that may be addressed by other remedies."
                                                               165a(3). In addition, they claim the trial court had juris-
Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684
                                                                                                                    Page 3
                                    21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **


diction to reinstate their case because their response to       Perez, 926 S.W.2d at 427. 4 Therefore, the Perez court
relators' motion to vacate the reinstatement order satisfies   reasoned, a motion to reinstate extends the appellate
Rule 306a(5). For reasons explained below, we reject           timetables in the same way as a motion for new trial.
both arguments.                                                Perez, 926 S.W.2d at 426-27 [**10] (citing Butts v.
                                                               Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697
     A. Is the motion to retain the functional equiva-
                                                               (Tex. 1986)).
lent of a motion to reinstate?
     A prematurely filed motion to reinstate extends the              4 We recognize that the mere fact that the mo-
appellate timetables and the trial court's plenary jurisdic-          tion was overruled before the case was reinstated
tion. [**8] See Perez v. Texas Employers' Ins. Ass'n,                 is not determinative. In the context of appellate
926 S.W.2d 425, 426 (Tex. App.-Austin 1996, no writ).                 timetables, a motion for new trial that has been
At issue in Perez was whether the plaintiff's verified mo-            overruled still serves the procedural functions of
tion to reinstate, filed before the final judgment, was               a motion for new trial:
effective to extend the appellate timetables. See id. First,
                                                                            Rule 58 is not limited by its language to mo-
the trial court signed an interlocutory order dismissing
                                                                      tions that are "live" when the final judgment is
the plaintiff's case against two of the three defendants.
                                                                      rendered, although for jurisdictional purposes . . .
See id. After the trial court denied the plaintiff's motions
                                                                      courts of appeals have engrafted such a require-
to reinstate, the court granted a non-suit as to the third
                                                                      ment onto the rule by judicial interpretation. Oth-
defendant, thereby making the judgment final. See id.
                                                                      er than [one case], in each of the cases in which
The Perez court, construing former Texas Rule of Appel-
                                                                      the court engrafted the "live" pleading require-
late Procedure 58(a), 3 held that a prematurely filed, ver-
                                                                      ment to the rule, the court ultimately held the mo-
ified motion to reinstate extended the appellate timetable
                                                                      tion for new trial filed in the case was viable, and
because it is a "proceeding relating to an appeal." 926
                                                                      therefore could be considered as a premature mo-
S.W.2d at 427. Observing that Rule 58 did not contain a
                                                                      tion.
specific list of items that would extend the appellate
timetable, the Perez court explained:                                      We have not previously addressed this con-
                                                                      struction of Rule 58. Another court has declined
     We do not think the language in Rule 58 compels the
                                                                      to follow the [live pleading requirement], howev-
exclusion of a verified motion to reinstate, whereas in-
                                                                      er. Harris County Hosp. Dist. v. Estrada, 831
terpreting Rule 58 to allow a prematurely filed motion to
                                                                      S.W.2d 876 (Tex. App.--Houston [1st Dist.] 1992,
reinstate to extend the appellate timetables [**9] har-
                                                                      no writ). In Estrada, the court observed the poli-
monizes with the general principle of liberally construing
                                                                      cy reasons for the rules concerning premature
the rules of appellate procedure when possible.
                                                                      filings: "The Texas Supreme Court has twice en-
                                                                      acted rules to assure that cases are not dismissed
       3    Rule 58(a) provided:
                                                                      because the motion for new trial was filed too
           Proceedings relating to an appeal need not be              soon. Neither of those rules limits their applica-
       considered ineffective because of prematurity if a             tion to 'live' pleadings. To require a 'live' pleading
       subsequent appealable order has been signed to                 here would defeat the purpose of those rules." We
       which the premature proceeding may properly be                 conclude that the better reasoned application of
       applied.                                                       Rule 58, more congruent with the Rule's purpose,
                                                                      is set forth in Estrada. The trial court was fully
            See White v. Schiwetz, 793 S.W.2d 278, 280
                                                                      apprised of [the movant's] complaints in its mo-
       (Tex. App. -- Corpus Christi 1992, no writ).
                                                                      tion for new trial and the hearing on the motion,
       Much of former Rule 58(a) is now embodied in                   and the court rejected those arguments when it
       Texas Rule of Appellate Procedure 27.2, govern-                reformed judgment [sic].
       ing premature filings, and provides in pertinent
       part:                                                                 Fredonia State Bank v. General American
                                                                      Life Ins. Co., 881 S.W.2d 279, 282 (Tex. 1994)
           The appellate court may treat actions taken                (citations omitted) (interpreting former TEX. R.
       before an appealable order is signed as relating to            APP. P. 58).
       an appeal of that order and give them effect as if
       they had been taken after the order was signed.              [**11]
            TEX. R. APP. P. 27.2.                                    [*789] Texas Rule of Civil Procedure 329b gov-
                                                               erns motions for new trial. The rule extends the trial
                                                               court's plenary power to thirty days after the overruling
                                                               of any motion for new trial or motion to modify, correct,
                                                                                                                     Page 4
                                     21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **


or reform the judgment. Rule 329b does not include a                    the prayer addresses (i) whether the motion to re-
specific list of items that operate to extend the appellate             tain was a motion to reinstate and (ii) Rule
timetable. Thus, in determining whether a pleading oper-                306a(4) relief. See Carroll v. Carroll, 580 S.W.2d
ates to extend the trial court's plenary power under Rule               410, 413 (Tex. Civ. App.-Houston [1st Dist.]
329b, the issue is whether it seeks a new trial or consti-              1979, no writ) (petition for bill of review must
tutes a motion to modify, correct, or reform a judgment.                meet requisites).
Unlike Rule 329b, however, Rule 165a, governing dis-
                                                                      While courts have broad discretion to interpret
missal for want of prosecution, specifically provides that
                                                                 pleadings [**14] liberally, the interpretation must be
filing a motion to reinstate extends the trial court's ple-
                                                                 reasonable and consistent with the nature and character
nary jurisdiction.
                                                                 of the pleading at issue. To determine if the Bosquets'
     In considering whether the Bosquets' motion to re-          motion to retain meets these standards, we again focus
tain operated as a motion to reinstate, we recognize that        on the text of Rule 165a(3), which states in part:
the substance of a motion, not its title, determines the
                                                                      The clerk shall deliver a copy of the motion to the
relief sought. See Surgitek v. Abel, 997 S.W.2d 598 (Tex.
                                                                 judge, who shall set a hearing on the motion as soon as
1999); see also TEX. R. CIV. P. 71 ("When a party has
                                                                 practicable. The court shall notify all parties or their at-
mistakenly designated any plea or pleading, the court, if
                                                                 torneys of record of the date, time and place of the hear-
justice so requires, shall treat the plea or pleading as if it
                                                                 ing.
had been properly designated."). [**12] Therefore, in
deciding this issue we do not focus on the title of the               The court shall reinstate the case upon finding after
Bosquets' motion but on its nature and purpose.                  a hearing that the failure of the party or his attorney was
                                                                 not intentional or the result of conscious indifference but
     Rule 165a(3) provides that "a motion to reinstate
                                                                 was due to an accident or mistake or that the failure has
shall set forth the grounds therefor and be verified by the
                                                                 been otherwise reasonably explained.
movant or his attorney." TEX. R. CIV. P. 165a(3). The
rule does not dictate the specific grounds the party                   TEX. R.CIV. P. 165a(3) (emphasis added). Rule
should plead in the motion, nor does it require the motion       165a plainly requires notice and a hearing on a motion to
to specifically state that the failure to respond was not        reinstate. To accept the Bosquets' argument that the mo-
intentional. See Gaylor v. Fluker, 843 S.W.2d 234, 236           tion to retain operated as a motion to reinstate, we would
(Tex. App.--Houston [14th Dist.] 1992, no writ). It is           not only have to overlook the true nature of the pleading
clear, however, that when a party files a motion to rein-        but also ignore the fact that the trial court failed to give
state, the court must determine this issue at the hearing        the requisite notice and failed to conduct the requisite
on reinstatement. See id.                                        hearing. The Bosquets [**15] point out that at the time
                                                                 the court entered the order reinstating the case, relators
      Here, the Bosquets' motion is verified and explains
                                                                 had not yet made an appearance as parties in the litiga-
why service on the relators/defendants, though diligently
                                                                 tion and, therefore, were not prejudiced by the lack of
attempted, had not been obtained. However, neither the
                                                                 notice and opportunity to be heard in response to the
title nor the content of the motion makes any mention of
                                                                 motion. The Bosquets, however, point to nothing which
reinstating a case that has been dismissed. Nor does the
                                                                 would suggest the motion to retain served the purpose of
motion request a new trial, or propose by its terms to
                                                                 a motion to reinstate or that the trial court viewed it as
modify, correct, or reform a judgment. If it did, then it
                                                                 such. 6 The record strongly suggests that by reinstating
would not matter that it was filed before the dismissal; it
                                                                 the case sua sponte, the trial court was attempting to
would be the [**13] functional equivalent of a motion
                                                                 correct what may have been an administrative error or
for new trial or a motion to reinstate. Instead of seeking
                                                                 oversight in the dismissal of the case, and that it was
this type of relief, however, the Bosquets' motion to re-
                                                                 taking such action on its own, not in response to any mo-
tain simply asks the trial court not to [*790] dismiss
                                                                 tion.
the case in the first place. 5
                                                                        6 In fact, when the trial court entered its order
        5 For similar reasons, the Bosquets' contention
                                                                        dismissing the Bosquets' claims, it effectively
        that their response to the request to vacate is, in
                                                                        overruled their motion to retain.
        reality, a bill of review, fails. The response con-
        tended the dismissal judgment had already been                In support of their contention that the motion to re-
        vacated; the response did not attack the judgment;       tain served as the functional equivalent of a motion to
        it did not allege the grounds required for a bill of     reinstate, the Bosquets cite to Arguelles v. Kaplan, 736
        review; it was not an original petition filed in a       S.W.2d 782, 785 [**16] (Tex. App.--Corpus Christi
        separate cause; the substance was clearly a re-          1987, pet.ref'd n.r.e). In that case, the court treated the
        sponse to the motion to vacate reinstatement; and        motion to reinstate, filed before dismissal was scheduled,
                                                                                                                   Page 5
                                   21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **


as a motion to retain. However, the point of error in Ar-      reinstatement motion begins on the date the dismissal
guelles addressed only the trial court's decision not to       order is signed. See id. (citing TEX. R. CIV. P. 306a(1)).
dismiss after giving notice of its intention to dismiss. 7     However, Rule 306a(4) and (5) provide a procedural
The Arguelles court did not address the interpretation of      remedy when more than twenty days have passed be-
the motion. Instead, it merely held that, "the dismissal or    tween the signing of the judgment of dismissal and the
refusal to dismiss an action for want of prosecution is        date a party receives the clerk's notice or otherwise ac-
directed to the sound discretion of the trial judge, and his   quires actual knowledge of the signing of the judgment.
action will be reversed only upon a showing of an abuse        Rule 306a(4) allows a party to establish the date it actu-
of such discretion." Id. Under that standard, the trial        ally received notice or acquired knowledge as the com-
court did not need a motion to retain or a hearing to re-      mencement of the plenary jurisdiction period. In this
tain the case on the docket.                                   case, however, [**19] the Bosquets failed to take the
                                                               procedural steps necessary to establish the date they or
       7 The trial court did hold a hearing on the mo-         their counsel first received notice or acquired actual
       tion to reinstate, as required by Rule 165a(3).         knowledge of the judgment.
     In the final analysis, we reject the notion that the         Rule 306a(5) requires the party seeking to imple-
Bosquets' motion to retain was the functional equivalent       ment Rule 306a(4) to:
of a motion to reinstate for two compelling reasons.
                                                                   [i] file a sworn motion;
[**17] First, it did not address reinstatement by title,
content, or relief sought. Second, and equally important,          [ii] provide notice to the other parties; and
we cannot countenance [*791] an argument that
                                                                    [iii] prove in the trial court the date upon which the
would undermine the basic framework for determining
                                                               party adversely affected first received the clerk's notice
appellate timetables. The same logic that would allow us
to interpret the Bosquets' motion to retain opposing dis-      of judgment or acquired actual knowledge that the judg-
missal as a motion to reinstate after dismissal would          ment had been signed.
open the door to arguments that any other pleading that             If the trial court determines a date of notice no more
opposes judgment in the first instance likewise operates       than ninety days after the original judgment was signed,
to extend the trial court's plenary power and the appellate    then appellate deadlines and the period for the trial
deadlines. Embracing this notion would contravene the          court's plenary power commence from the date of notice
rules that control the appellate timetables and create         rather than the date the judgment was actually signed.
confusion and uncertainty about when a trial court's ple-      See TEX. R. CIV. P. 306a(4); TEX. R. APP. P. 4.2(a)(1).
nary jurisdiction expires. The Texas Supreme Court has
repeatedly recognized the importance of ensuring cer-                Filing a motion that complies with the requirements
tainty in computing appellate timetables, 8 and we will        of Rule 306a invokes the trial court's jurisdiction for the
not accept an argument that undermines this policy.            limited purpose of determining the date of notice. See
                                                               Memorial Hosp. v. Gillis, 741 S.W.2d 364, 365-66 (Tex.
       8 See, e.g, Mafrige v. Ross, 866 S.W.2d 590,            1987); In re Simpson , 932 S.W.2d 674, 677 (Tex.
       592 (Tex. 1993) ("Litigants should be able to           App.--Amarillo 1996, no writ). [**20] To invoke the
       recognize a judgment which on its face purports         trial court's jurisdiction to hold a hearing, the sworn mo-
       to be final, and courts should be able to treat such    tion must set forth facts that create a prima facie case
       a judgment as final for purposes of appeal.").          demonstrating the party did not receive the clerk's notice
                                                               or acquire actual knowledge of the judgment within
      [**18] B. Did the trial court have limited juris-        twenty days after the judgment was signed. See Carrera
diction under Rule 306a?                                       v. Marsh, 847 S.W.2d 337, 342 (Tex. App.--El Paso
      The Bosquets next argue that they established the        1993, orig. proceeding). If the sworn motion fails to al-
date of notice or their first actual knowledge by incorpo-     lege facts that would establish the application of Rule
                                                               306a(4), any [*792] order determining the date of
rating a Rule 306a motion into a response they filed
                                                               notice is void. See Gillis , 741 S.W.2d at 365-66; Simp-
nearly a year after judgment. This action, they contend,
gave the court jurisdiction to reinstate the case four days    son , 932 S.W.2d at 678; see also Grondona v. Sutton,
after their counsel received the clerk's notice of dismis-     991 S.W.2d 90 (Tex. App.--Austin 1998, pet. denied)
                                                               (only part of a prima facie case alleged within the period
sal.
                                                               of plenary power; amendment to include full prima facie
     Rule 306a provides a mechanism to establish the           case after plenary power expired failed to invoke the
commencement of the court's plenary power where no-            court's jurisdiction). As the Texas Supreme Court has
tice is not received within twenty days of judgment. Rule      explained:
306a(1) reaffirms that the thirty-day period for filing the
                                                                                                                      Page 6
                                    21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **


Compliance with the time periods prescribed by these                    cannot confer jurisdiction, by estoppel, on a court
rules is a jurisdictional prerequisite. Unless a party es-              that has lost power to act. See Thompson , 997
tablishes in the manner prescribed by the rule that he                  S.W.2d at 622.
had no notice or knowledge [**21] of the judgment,
                                                                      [**23] Texas Rule of Appellate Procedure 4.2,
the general rule prevails: a trial court's power to reinstate
                                                                entitled "No Notice of Trial Court's Judgement in Civil
a cause after dismissal expires thirty days after the order
                                                                Case", states, "after hearing the [306a(5)] motion, the
of dismissal is signed.
                                                                trial court must sign a written order that finds the date
                                                                when the party or the party's attorney first either received
 Memorial Hosp. of Galveston County v. Gillis, 741
                                                                notice or acquired actual knowledge that the judgment or
S.W.2d 364, 365 (Tex. 1987) (emphasis added); see also
                                                                order was signed." TEX. R. APP. P. 4.2(c) (emphasis
Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d
                                                                added). Failure to hold a hearing and make a finding
696, 697 (Tex. 1986) (per curiam) (effect of failure to
                                                                once a prima facie case is established constitutes an
comply with Rule 165a governing motions to reinstate
                                                                abuse of discretion. See, e.g., Cantu , 878 S.W.2d at
after dismissals for want of prosecution); Olvera v.
                                                                131-32 (requiring the trial court to hold a hearing and to
Olvera, 705 S.W.2d 283, 284 (Tex. App. -- San Antonio
                                                                make a finding in a written order when a party presents
1986, writ ref'd n.r.e.) (per curiam) (on mot. for reh'g) (a
                                                                proof of the date of notice in trial court). The trial court
movant under Rule 306a must not only file a sworn mo-
                                                                signed no order finding the date the [*793] Bosquets
tion, but also must obtain a hearing and present evidence
                                                                or their attorney first received notice or acquired actual
to support the motion). Here, the Bosquets failed to [i]
                                                                knowledge of the order of dismissal.
file a sworn motion, [ii] give notice of a hearing, [iii]
present evidence in a hearing as to the date of their actual         The Bosquets do not dispute the lack of any notice,
knowledge or receipt of the court's notice, or [iv] obtain      hearing or order but instead characterize the 306a(5) mo-
an order with written findings, resetting the commence-         tion as a "useless motion" under the facts of this case.
ment of the period of plenary power. Cf. Thompson v.            They argue that because the trial court reinstated the case
Harco Nat. Ins. Co., 997 S.W.2d 607, 623 (Tex.                  on its own, there was no need to take further action as the
App.-Dallas 1998, [**22] pet. denied) ("We reject any           relief [**24] they sought already had been granted.
contention that a trial court 'impliedly' grants relief under   Nevertheless, Rule 306a clearly requires a motion, no-
Rule 306a(4) if it grants a motion for new trial filed more     tice, hearing and order to establish jurisdiction beyond
than thirty days after the entry of a final judgment.").        the original plenary power. Because the Bosquets did not
                                                                follow the procedure mandated by that rule, they failed
      The Bosquets first endeavored to invoke Rule
                                                                to establish a new date for the trial court's plenary power
306a(5) in their response to the relators' motion to vacate
                                                                to commence. Based on this record, we can only con-
the reinstatement order. This effort, however, did not
                                                                clude that the trial court's jurisdiction expired thirty days
come until nearly a year after the trial court signed the
                                                                after March 31, 1999. On May 4, 1999, the date the trial
dismissal order. 9 The Bosquets' response to the motion
                                                                court issued its order reinstating the case, its jurisdiction
to vacate reinstatement (which they claim was also a
                                                                had expired, and it had no authority to act.
Rule 306a motion that meets the requirements for a peti-
tion for bill of review) neither requested a hearing nor
                                                                C. Is the reinstatement order void?
gave notice of one. The sole purpose of the sworn Rule
306a(5) motion is to establish the limited jurisdiction               A judgment is void "when it is apparent that the
necessary to hold the hearing. The Bosquets insisted            court rendering judgment 'had no jurisdiction of the par-
there was no need for a hearing under Rule 306a(5) be-          ties, no jurisdiction of the subject matter, no jurisdiction
cause the court already had granted the motion to rein-         to enter the judgment, or no capacity to act as a court.'"
state. However, a hearing and notice of that hearing are        Id. (quoting Browning v. Placke, 698 S.W.2d 362, 363
essential to the validity of any Rule 306a(5) order. See        (Tex. 1985)). The order of reinstatement was not merely
Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994)               invalid or voidable; it was void from its inception. See
(orig. proceeding). There was no 306(a)(5) notice or            Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). A
hearing in this case.                                           void order is entirely null within itself; it is not suscepti-
                                                                ble [**25] to ratification or confirmation, and its nullity
       9    Because the Bosquets failed to implement            cannot be waived. See Guardianship of B.A.G., 794
       Rule 306a(5), we do not address whether their            S.W.2d 510 (Tex. App.--Corpus Christi 1990) (void
       effort was timely. The Bosquets claim that rela-         judgment) (citing Easterline v. Bean, 121 Tex. 327, 49
       tors are estopped to claim the reinstatement order       S.W.2d 427, 429 (1932); American Universal Ins. Co. v.
       was void because relators continued to seek af-          D.B. & B., Inc., 725 S.W.2d 764, 766 (Tex. App.--Corpus
       firmative relief in the trial court after the rein-      Christi 1987, writ ref'd n.r.e.)). Holding a trial court's
       statement order was entered. However, the parties        order void, when that same order may have led the par-
                                                                                                                  Page 7
                                   21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, **


ties to believe all was well may seem unfair, 10 but just as   ranted and, if necessary, shall issue to compel the court
a trial court cannot act when it has no jurisdiction, a re-    to vacate its void order.
viewing court cannot find jurisdiction where none exists.
We find the trial court's May 4, 1999 order reinstating        IV. CONCLUSION
the case is void.
                                                                    While the Texas Rules of Civil Procedure provide
                                                               additional time to act for parties who do not receive
       10     A combination of factors make the re-
                                                               timely notice of final judgments, the Bosquets did not
       sult in this case seemingly harsh and unyield-
                                                               take the procedural steps necessary to benefit from those
       ing. First, the dismissal was likely the result of
                                                               rules. We cannot reasonably construe their motion to
       an administrative error or oversight by the
                                                               retain as anything but a plea to keep the case on the
       trial court. Second, the trial court's sua sponte
                                                               docket, a motion the trial court effectively over [*794]
       effort to remedy the error may have given the
                                                               ruled in its dismissal order. Because the motion to retain
       Bosquets a false sense that no other action was
                                                               cannot be deemed a prematurely filed motion to rein-
       necessary. Then, for nearly a year after the
                                                               state, motion for new trial, or motion to modify, change,
       court entered the order of reinstatement, the
                                                               [**27] or reform a judgment, the trial court's plenary
       Bosquets pursued the litigation, only to learn
                                                               power was not extended. There was no notice and hear-
       on the eve of trial that their claims were dis-
                                                               ing on the Bosquets' Rule 306a(5) contentions, and no
       missed after all and that the trial court's ear-
                                                               order with factual findings. Consequently, there was no
       nest effort to revivify them was without effect.
                                                               new date established for commencement of the trial
       However, the Bosquets are not without other
                                                               court's plenary jurisdiction. These facts lead to the ines-
       possible remedies. They claim to have good
                                                               capable conclusion that the trial court's plenary power
       grounds to pursue a bill of review. This may
                                                               expired thirty days after it dismissed the case. Because
       well be, but in the current posture of the case,
                                                               the trial court was without jurisdiction when it entered
       the procedural deficiencies are jurisdictional.
                                                               the reinstatement order, that order is void.
      [**26]
                                                                    We conditionally grant relators' petition for writ of
    D. Is mandamus relief warranted?                           mandamus and direct the trial court to vacate its May 4,
                                                               1999, order of reinstatement. The writ will issue only if
     When a trial court erroneously reinstates a case after
                                                               the trial court does not comply.
the expiration of the court's plenary jurisdiction, man-
damus will issue. See Estate of Howley , 878 S.W.2d 139            /s/ Kem Thompson Frost
(Tex. 1994) (per curiam); see also South Main v. Wittig,
                                                                   Justice
909 S.W.2d 243, 244 (Tex. App.-Houston [14th Dist.]
1995, orig. proceeding). Having determined that the trial          Petition Denied and Opinion filed June 28, 2000.
court had no jurisdiction at the time it entered the order
                                                                   Panel consists of Justices Amidei, Anderson and
reinstating the case, we find mandamus relief is war-
                                                               Frost.
|   | Questioned
As of: April 7, 2015 5:48 PM EDT


                                      Irlbeck v. John Deere Co.
                               Court of Appeals of Texas, Seventh District, Amarillo
                                                  June 10, 1986
                                                No. 07-85-0009-CV

Reporter
714 S.W.2d 54; 1986 Tex. App. LEXIS 7698

LARRY IRLBECK, D/B/A I & B FARMS, APPELLANT, v.             appellee submitted its claim on the pleadings and
JOHN DEERE COMPANY, APPELLEE                                affidavits, with appended instruments, with no objection
                                                            and that the affidavit testimony admitted in court satisfied
Subsequent History: [**1] Rehearing Denied July 7,          the evidential hearing requirement. The court held that
1986.                                                       inadmissible hearsay admitted without objection had
                                                            probative value that could be considered in determining
Prior History: FROM THE DISTRICT COURT OF                   sufficiency. The court held that appellant's final points of
OCHILTREE COUNTY; 84TH JUDICIAL DISTRICT;                   error were overruled because the alleged admissions
NO. 7079; HONORABLE J. E. BLACKBURN, JUDGE.                 or stipulations of facts referred to by appellant were
                                                            developed in a temporary injunction hearing. The court
Core Terms                                                  held that it would only consider evidence before the trial
                                                            court when the judgment was rendered and that it could
                                                            not go to the record of another case to ascertain facts
damages, evidentiary hearing, security agreement,
                                                            not shown in the record of the case before it.
default judgment, promissory note, no writ, foreclosure,
default, hearsay, reasonable attorney's fees,
                                                            Outcome
installments, unliquidated, evidential, pleadings,
combine, Holder
                                                            The court affirmed the judgment of the trial court and
                                                            held that there was not a complete absence of
Case Summary                                                admissible probative evidence of damages and that the
                                                            evidence was not too weak to support the damages
Procedural Posture                                          awarded. The court held that the alleged admissions or
                                                            stipulations in a statement of facts developed in a
Appellant judgment debtor sought review of a default        temporary injunction hearing were not in the appellate
judgment from the District Court of Ochiltree County,       record requiring the remaining three points of error to be
84th Judicial District (Texas), which decreed appellant's   overruled.
monetary liability to appellee tractor company and also
granted the foreclosure of appellee's security interest
liens on appellant's pledged collateral with an order of
                                                            LexisNexis® Headnotes
sale.
                                                              Civil Procedure > ... > Costs & Attorney Fees > Attorney
Overview                                                      Fees & Expenses > Reasonable Fees

                                                              Contracts Law > ... > Types of Damages > Compensatory
Appellant judgment debtor challenged a default                Damages > General Overview
judgment entered by the trial court. Appellant asserted
that the judgment was without the necessary evidential      HN1 A claim of damages that is an unliquidated one, by
support. The court affirmed the judgment and held that      virtue of Tex. R. Civ. P. 243, requires the court to hear
appellee tractor company's claim for damages was an         evidence of damages.
unliquidated one, which required a hearing on damages.
However, the court held that the judgment was not             Contracts Law > ... > Types of Damages > Compensatory
rendered without an evidentiary hearing because               Damages > General Overview
                                714 S.W.2d 54, *54; 1986 Tex. App. LEXIS 7698, **1


HN2 Affidavit testimony of damages admitted in court          principal sum of $14,558.17 was for his purchase and
satisfies the evidential requirement of Tex. R. Civ. P.       security for the payment of a Case tractor. Each note
243.                                                          was payable in installments -- the first in six installments,
                                                              and the second in eight installments -- of designated
  Criminal Law & Procedure > Sentencing > Imposition of        [*56] amounts at designated times, and interest on
  Sentence > Evidence                                         each past due installment accrued at the highest rate
  Evidence > ... > Statements as Evidence > Hearsay >         permitted by law or 10% per annum, whichever was
  General Overview                                            lower. Each instrument provided that if the note be in
                                                              default, Irlbeck will pay all expenses, including
HN3 Inadmissible hearsay admitted without objection           reasonable attorney's fees, incurred in collection or
shall not be denied probative value merely because it is      otherwise. Each promissory note-security agreement
hearsay. Tex. R. Evid. 802.                                   contained its written assignment by Hansford Implement
                                                              Company to John Deere Company.
  Civil Procedure > Appeals > Standards of Review > General
  Overview                                                    John Deere filed its action on 6 April 1984, outlining the
                                                              transactions and alleging that as to each note, Irlbeck
HN4 An appellate court will consider only evidence
before the trial when the judgment was rendered. An               has defaulted in his payments under the terms
appellate court cannot go to the record of another case           of the note and security agreement, and has
for the purpose of ascertaining a fact not shown in the           failed and refused to make payments although
record of the case before it.                                     repeated demands for payment have been
                                                                  made.
Counsel: Messrs. Jody Sheets and Timothy D. Zeiger,
Gassaway, Gurley, Sheets & Mitchell, Borger, Texas.           Then, John Deere made this allegation: "As of February
                                                              14, 1984, defendant owed plaintiff $9,918.06 including
Messrs. Jeff Levinger and Michael L. McCoy,                   all [**3] credits and offsets." John Deere prayed for
Carrington, Coleman, Sloman & Blumenthal, Dallas,             recovery from Irlbeck of the indebtedness described
Texas.                                                        with pre-and post-judgment interest and reasonable
                                                              attorney's fees, and for the foreclosure of its security
Judges: Reynolds, C.J., and Dodson and Boyd, JJ.              interest in the collateral, together with general relief.

Opinion by: REYNOLDS                                          Citation was issued on the day the action was filed, and
                                                              personal service was effected on Irlbeck on 16 April
Opinion                                                       1984. He neither appeared nor answered within the
                                                              time allowed by law.
  [*55] Larry Irlbeck, d/b/a I & B Farms, perfected this
                                                              Thereafter in June of 1984, John Deere moved the
appeal from a default judgment decreeing his monetary
                                                              court for default judgment. The motion was supported
liability to John Deere Company, which was also granted
                                                              by two affidavits, copies of Irlbeck's promissory notes
the foreclosure of its security interest liens on Irlbeck's
                                                              and security agreements, and copies of the filed
pledged collateral with an order of sale. With five points
                                                              financing statements. The motion carried the
of error, Irlbeck challenges the evidential support for,
                                                              certification that a copy of it was mailed to Irlbeck by
and the foreclosure provision of, the judgment rendered.
                                                              certified mail on 8 June 1984. Irlbeck did not respond to
On the rationale to be expressed, the points will be
                                                              the motion.
overruled and the judgment will be affirmed.
John Deere brought the action underlying this appeal to       One of the affidavits was executed by Jack B. Holder,
recover on two combination promissory notes and               the Manager of Financial Services for John Deere. He
security agreements Irlbeck executed and delivered to         swore that he had personal knowledge of the facts
Hansford Implement Company. One promissory                    stated, among which were that the appended
note-security agreement in the principal sum of               promissory notes and security agreements are true and
$14,187.49 [**2] was for Irlbeck's purchase and security      correct copies of Irlbeck's promissory notes and security
for the payment of a New Holl combine; the other in the       agreements; that John Deere is the owner and holder in
                                                                                                            Page 2 of 4
                                714 S.W.2d 54, *56; 1986 Tex. App. LEXIS 7698, **3



due course [**4] of the promissory notes;                     a liquidated claim within a literal reading [**6] of Rule
                                                              241, Texas Rules of Civil Procedure, to permit the court
    and that as of 21 May 1984, 1984, [sic] there is          to assess damages without hearing evidence -- the
    now due by defendant Larry Irlbeck d/b/a I & B            notes were in definite amounts payable in denominated
    Farms, to the plaintiff, on the debt set forth in         amounts at designated times with a stated interest rate
    the original petition the sum of $10,181.90 after         accruing upon nonpayment of an installment, and Irlbeck
    allowing all credits and offsets, with additional         ceased to make payments.
    interest accruing at the rate of 10% or $2.79 per
    day thereafter.                                           However, neither the notes nor the pleadings showed
                                                              the credits and offsets which John Deere pleaded Irlbeck
Continuing, Holder stated that "payments are overdue          was allowed, and the pleadings did not state or even
on the notes and defendant has refused to pay the sum         indicate when default in payments occurred. Thus, the
owing on the notes;" that to secure the sum owed,             pleaded factual allegations and the instruments in
Irlbeck gave to the holder of the promissory notes and        writing were not sufficiently definite to enable the court
security agreements a security interest in the New Holl       to make an accurate calculation from them of the amount
combine and in the Case tractor which has not been            of principal and interest due on the notes. Moreover, the
released; and that John Deere has retained the firm of        reasonable attorney's fees provided by the instruments
Carrington, Coleman, Sloman & Blumenthal to                   are by their very nature unliquidated damages. It follows
represent it in the collection and had agreed to pay the      that, as John Deere pleaded its cause of action, its HN1
attorneys a reasonable fee for their services.                claim of damages was an unliquidated one which, by
                                                              virtue of Rule 243, Texas Rules of Civil Procedure
The other affidavit was executed by Michael L. McCoy,         required the court to hear evidence of damages.
an associate in the law firm. He detailed the                 Freeman v. Leasing Associates, Inc., 503 S.W.2d 406,
qualifications and legal services furnished to express        408 (Tex.Civ.App. -- Houston [14th Dist.] 1973, no writ).
the opinion that a reasonable attorney's fee for the          And this result is [**7] not altered by John Deere's
firm's services in this cause would be $250.                  pleaded allegation of the amount owed on a date certain
                                                              "including all credits and offsets," for this allegation is a
On 29 June 1984, the court, hearing John Deere's              conclusion which, absent the factual allegations of
motion for default [**5] judgment, and reciting Irlbeck's     amounts and dates of payments on the notes, is
default, John Deere's entitlement to default judgment,        insufficient to enable the court to accurately calculate
and the hearing of evidence, rendered judgment. By its        the amounts due on the notes. Burrows v. Bowden, 564
judgment, the court decreed that John Deere recover of        S.W.2d 474, 476 (Tex.Civ.App. -- Corpus Christi 1978,
and from Irlbeck, d/b/a I & B Farms, the amount of            no writ); Hall v. C-F Emp. Credit U., 536 S.W.2d 266,
$10,181.90, together with the sum of $250 as                  268 (Tex.Civ.App. -- Texarkana 1976, no writ).
reasonable attorney's fees, with interest thereon at the
rate of 10% per annum from the date of the judgment,          Nevertheless, it cannot be successfully maintained, as
and ordered the foreclosure of John Deere's security          Irlbeck charges, that the judgment was rendered without
interest liens on the New Holl combine and the Case           an evidentiary hearing. This is for the reason that John
tractor with the issuance of an order of sale.                Deere submitted its claim to the court on the pleadings
                                                              and affidavits, with appended instruments, to which no
Irlbeck groups his first two points of error to present his   objection was lodged. It has been held without
central contention that the judgment is without the           disapproval that HN2 affidavit testimony of damages
necessary evidential [*57] support. Initially, he charges     admitted in court satisfies the evidential requirement of
the trial court with error in rendering the judgment          Rule 243, supra. K-Mart Apparel Fashions Corp. v.
without an evidentiary hearing on the unliquidated claim      Ramsey, 695 S.W.2d 243, 247 (Tex.App. -- Houston
which was not proved by an instrument in writing.             [1st Dist.] 1985, writ ref'd n.r.e.).
Secondly, he contends the evidence is legally and
factually insufficient to support the judgment rendered.      Still, in contending evidential support for the judgment is
                                                              lacking, Irlbeck declares that the affidavits [**8] are
Under this record, Irlbeck correctly states that John         inadmissible under Rule 802, Texas Rules of Evidence,
Deere's claim was unliquidated. Viewed objectively,           because each statement in them is offered in evidence
John Deere's pleading of its cause of action presented        to prove the truth of the matter asserted. Irlbeck
                                                                                                               Page 3 of 4
                                714 S.W.2d 54, *57; 1986 Tex. App. LEXIS 7698, **8



misperceives the full import of Rule 802, which became        reformation of the judgment. The error, Irlbeck alleges,
effective before this action was filed.                       lies, in brief, in the rendered judgment's foreclosure
                                                              decree which, by not specifying the amount owned on
Although the rule initially states that hearsay is not        each piece of equipment, allows foreclosure of a
admissible except as provided by law, the second              purchase money lien on the New Holl combine, an item
sentence of the rule reads: "HN3 Inadmissible hearsay         of exempt property, to pay nonexempt debts, particularly
admitted without objection shall not be denied probative      since he has paid the amount due on the combine. To
value merely because it is hearsay." That the rule            show these facts, Irlbeck refers to John Deere's alleged
provides for hearsay admitted without objection to have       admissions or stipulations of facts contained in a
probative value sufficient to support a judgment was          statement of facts developed in a temporary injunction
forecast in Aquamarine Associates v. Burton Shipyard,         hearing four months after the default judgment was
659 S.W.2d 820, 822 (Tex. 1983), and has become a             rendered, and brought to this Court by John Deere's
principle of law. K-Mart Apparel Fashions Corp. v.            appeal in that matter under our cause no.
Ramsey, supra; Aatco Transmission Co. v. Hollins, 682         07-84-0312-CV.
S.W.2d 682, 685 (Tex.App. -- Houston [1st Dist.] 1984,
no writ); Neidert v. Dozers, 681 S.W.2d 847, 848              Those alleged admissions or stipulations of facts were
(Tex.App. -- Eastland 1984, no writ).                         not before the trial court when the default judgment was
                                                              rendered, and, of course, they are not in the record of
It seems accepted that at the hearing of evidence on an       this appeal; but, Irlbeck represents, those later
unliquidated claim after default, testimony of the total      developed facts may be noticed by the authority of
amount due under a written instrument is sufficient to        State ex rel. Colleyville v. City of Hurst, 519 S.W.2d 698,
support an award of that amount, [**9] BLS Limousine          701 (Tex.Civ.App. -- Fort Worth 1975, writ ref'd n.r.e.).
Service v. Buslease, Inc., 680 S.W.2d 543, 547                However, the pronouncements of the Colleyville [**11]
(Tex.App. -- Dallas 1984, no [*58] writ), and that such       court are not that definite nor that inclusive, and Irlbeck's
testimony may be supplied by an affidavit, albeit             representation is untenable.
containing otherwise inadmissible hearsay, when it is
admitted without objection. K-Mart Apparel Fashions           It is axiomatic that the HN4 appellate court will consider
Corp. v. Ramsey, supra. The unobjected to affidavit           only evidence before the trial when the judgment was
testimony of Holder supported the amount awarded on           rendered. Gulf Oil Corp. v. Southland Royalty Co., 478
the notes in this cause. Likewise, the affidavit testimony    S.W.2d 583, 591 (Tex.Civ. App. -- El Paso 1972), aff'd,
of the attorney, again containing otherwise inadmissible      496 S.W.2d 547 (Tex. 1973). And historically, the
hearsay but being admitted without objection, sufficiently    accepted rule of law is that an appellate court cannot go
supported the award of attorney's fees. Neidert v.            to the record of another case for the purpose of
Dozers, supra.                                                ascertaining a fact not shown in the record of the case
                                                              before it. Victory v. State, 138 Tex. 285, 158 S.W.2d
Given this situation and the standards of review              760, 763 (1942); Nolan v. Bettis, 577 S.W.2d 551,
enunciated in Garza v. Alviar, 395 S.W.2d 821, 823            554-55 (Tex.Civ.App. -- Austin 1979, writ ref'd n.r.e.).
(Tex. 1965), as applicable to Irlbeck's evidential point of   Thus, since reference may not be made to the statement
error, it cannot be said either that there is a complete      of facts in the other appeal for an ascertainment of the
absence of admissible, probative evidence of damages,         facts, and appellate review must be confined to the
or that the evidence is too weak to support the damages       papers in this appeal by writ of error, McEwen v.
awarded. Consequently, Irlbeck's first two points of          Harrison, 162 Tex. 125, 345 S.W.2d 706, 711 (1961),
error are overruled.                                          which do not show the facts upon which Irlbeck's points
                                                              depend, [**12] the points must be, and they are,
With his third, fourth and fifth points of error, Irlbeck     overruled.
submits that if we find, as we have found, sufficient
evidence before the trial court to support [**10] the         The judgment of the trial court is affirmed.
default judgment, then there is yet error calling for a




                                                                                                              Page 4 of 4
                                                                                                                 Page 1




Caution
As of: Mar 30, 2015

                 CHRISTOPHER LEIGH JOHN, PETITIONER v. MARSHALL HEALTH SER-
                  VICES, INC. AND HARRISON COUNTY HOSPITAL ASSOCIATION, INC.
                   D/B/A MARSHALL REGIONAL MEDICAL CENTER, RESPONDENTS

                                                       NO. 00-0324

                                            SUPREME COURT OF TEXAS

                               58 S.W.3d 738; 2001 Tex. LEXIS 86; 44 Tex. Sup. J. 1183


                                             September 20, 2001, Delivered

SUBSEQUENT HISTORY: On remand at, Remanded                     the date the movant learned that judgment had been
by John v. Marshall Health Servs., 91 S.W.3d 446, 2002         signed? The court of appeals answered both in the af-
Tex. App. LEXIS 8018 (Tex. App. Texarkana, 2002)               firmative and dismissed the appeal for want of jurisdic-
                                                               tion. 2 We agree that the trial court's judgment was final
PRIOR HISTORY:           [**1] ON PETITION FOR                 and appealable, but not that the appeal was untimely
REVIEW FROM THE COURT OF APPEALS FOR                           perfected. Accordingly, we reverse [**2] the judgment
THE SIXTH DISTRICT OF TEXAS.                                   of the court of appeals and remand the case to that court
John v. Marshall Health Servs., Inc., 12 S.W.3d 888,           for consideration of the merits.
2000 Tex. App. LEXIS 1215 (Tex. App. Texarkana, 2000)
                                                                      1     Unless otherwise noted, all references to
DISPOSITION:         We thus conclude that the court of               rules are to the Texas Rules of Civil Procedure.
appeals erred by dismissing the appeal for want of juris-             2 12 S.W.3d 888.
diction. Accordingly, the Court grants John's petition for
                                                                     Plaintiff Christopher Leigh John sued six defend-
review, and without hearing oral argument, reverses the
                                                               ants: Trinity Mother Frances Health System, Tom
judgment of the court of appeals and remands the case to
                                                               Cammack, and Trincare Inc. ("the Trinity defendants");
that court for consideration of the parties' other argu-
                                                               Harrison County Hospital Association, Inc. and Marshall
ments.
                                                               Health Services ("the Marshall defendants"); and Dianna
                                                               Taylor. John alleged fraud, breach of contract, and tor-
                                                               tious interference. The trial court granted partial sum-
OPINION
                                                               mary judgment for the Marshall defendants on John's
                                                               breach-of-contract claims. Shortly before trial, John
 [*739] PER CURIAM
                                                               reached a preliminary settlement with the three Trinity
     There are two questions here. First: is a judgment        defendants, but no final agreement was made and the
rendered after the close of trial final and appealable if it   Trinity defendants were not dismissed from the case. The
does not expressly dispose of the plaintiff's claims           other three defendants moved for a continuance because
against defendants with whom the plaintiff was negoti-         of uncertainty about the effect of the settlement on the
ating settlement? Second: must a motion to extend              trial. The trial court denied the [**3] motion, and the
post-judgment deadlines under Rule 306a(5) of the Texas        case proceeded to trial on John's claims against Taylor
Rules of Civil Procedure 1 be filed within thirty days of      and the Marshall defendants. John nonsuited Taylor dur-
                                                                                                                    Page 2
                                         58 S.W.3d 738, *; 2001 Tex. LEXIS 86, **;
                                                   44 Tex. Sup. J. 1183

ing the trial, and only his claims against the Marshall          nor the notice of appeal were timely filed. 8 Accordingly,
defendants were submitted to the jury. After the jury            the court of appeals dismissed John's appeal for want of
failed to reach a verdict, the trial court at first declared a   jurisdiction.
mistrial, then withdrew that ruling and granted the Mar-
shall defendants' earlier motion for a directed verdict.                5    12 S.W.3d at 890.
The Marshall defendants drafted and submitted a judg-                   6    400 S.W.2d 893, 897-898 (Tex. 1966).
ment, which the trial court signed on September 8. Enti-                7    866 S.W.2d 590, 592 (Tex. 1993).
tled "Final Judgment", it recited the nonsuit of Taylor                 8    12 S.W.3d at 891.
and ordered that John take nothing against the Marshall
                                                                       We first consider whether the judgment was final.
defendants. The judgment awarded costs against John
                                                                 Recently in Lehmann v. Har-Con Corp., [**6] we
and contained a "Mother Hubbard" clause, that "all other
                                                                 observed that "the presumption that a judgment rendered
relief not expressly granted in this judgment is denied."
                                                                 after a conventional trial on the merits is final and ap-
The judgment did not mention the three settling Trinity
                                                                 pealable has proved fairly workable for nearly a century .
defendants, and the record does not reflect whether their
                                                                 . . ." 9 John here argues that this presumption should not
settlement was finalized.
                                                                 be rigidly applied to make judgments final contrary to
      The judgment was not filed by the clerk until Sep-         litigants' reasonable expectations. We do not disagree
tember 13. John did not receive the defendants' proposed         with this argument in general, especially given today's
draft until several days later, and never received written       frequency of separate trials of parties and claims in a
notice from the clerk that a final judgment had been             single case, and bifurcated trials required in certain in-
signed. 3 John first learned of the judgment [**4] in a          stances. However, we believe the presumption is entirely
telephone conversation with the clerk on September 30.           appropriate in a case like this. John did not move for
The clerk stated that the judgment had been signed Sep-          separate trials; he went to trial against the only defend-
tember 13. John filed a motion for new trial on October          ants against whom he still wished to prosecute his
13, more than thirty days after the judgment was signed          claims. The trial court and all of the parties were aware
[*740] when such motions must ordinarily be filed. 4             of the pending settlement, and there is nothing to indicate
Post-judgment deadlines may be extended under Rule               that the trial court did not intend the judgment to finally
306a, but John did not file the requisite motion under           dispose of the entire case. John did not move for dismis-
Rule 306a(5) until December 10. After a hearing, the             sal of his claims against the Trinity defendants or for an
trial court agreed that John first learned of the judgment       agreed judgment. Whether the judgment was final should
on September 30, but that the Rule 306a(5) motion was            not depend on one party's testimony that he did or did not
filed too late, and therefore the time for filing a motion       finalize a settlement with parties from whom he sought
for new trial was not extended. On December 13, John             no [**7] relief at trial. The Aldridge presumption fits
filed a notice of appeal which was timely only if                just such circumstances.
post-judgment deadlines ran from September 30 instead
of September 8.                                                         9    39 S.W.3d 191, 199 (Tex. 2001).
                                                                      We next consider the Rule 306a issue. Rule 306a(1)
        3 Rule 306a(3) provides in part: "When the fi-
                                                                 provides that the periods within which parties may file
        nal judgment or other appealable order is signed,
                                                                 various post-judgment motions and trial courts may ex-
        the clerk of the court shall immediately give no-
                                                                 ercise their plenary jurisdiction all run from the date the
        tice to the parties or their attorneys of record by
                                                                 judgment is signed. Rule 306a(3) requires clerks to noti-
        first-class mail advising that the judgment or or-
                                                                 fy parties or their attorneys immediately when a judg-
        der was signed."
                                                                 ment is signed. Rule 306a(4) provides the following ex-
        4 TEX. R. CIV. P. 329b(a).
                                                                 ception to Rule 306a(1):
      [**5] On appeal, John argued that the judgment
                                                                      If within twenty days after the judgment or other
was not final because it did not dispose of the claims
                                                                 appealable order is signed, a party adversely affected by
against the Trinity defendants. The court of appeals held
                                                                 it or his attorney has neither received the notice required
that because the judgment followed a conventional trial
                                                                 by paragraph (3) of this rule nor acquired actual
on the merits and contained a "Mother Hubbard" clause,
                                                                 knowledge of [*741] the order, then with respect to
it was presumed final, 5 citing this Court's opinions in
                                                                 that party all the periods mentioned in paragraph (1) shall
North East Independent School District v. Aldridge 6 and
                                                                 begin on the date that such party or his attorney received
Mafrige v. Ross. 7 The court of appeals further held that
                                                                 such notice or acquired actual knowledge of the signing,
John's Rule 306a(5) motion should have been filed with-
                                                                 whichever occurred first, but in no event shall such [**8]
in thirty days of the date he first learned of the judgment
                                                                 periods begin more than ninety days after the original
and because it was not, neither the motion for new trial
                                                                 judgment or other appealable order was signed.
                                                                                                                     Page 3
                                         58 S.W.3d 738, *; 2001 Tex. LEXIS 86, **;
                                                   44 Tex. Sup. J. 1183

     Rule 306a(5) prescribes the procedure for claiming                 13 Green v. Guidry, 34 S.W.3d 669, 670 (Tex.
this exception:                                                         App.--Waco 2000, no pet.) (per curiam); Gron-
                                                                        dona v. Sutton, 991 S.W.2d 90, 92 (Tex.
     In order to establish the application of paragraph (4)
                                                                        App.--Austin 1998, pet. denied) (per curiam);
of this rule, the party adversely affected is required to
                                                                        Vineyard Bay Dev. Co. v. Vineyard on Lake
prove in the trial court, on sworn motion and notice, the
                                                                        Travis, 864 S.W.2d 170, 172 (Tex. App.--Austin
date on which the party or his attorney first either re-
                                                                        1993, writ denied) (per curiam).
ceived a notice of the judgment or acquired actual
                                                                  [**10]
knowledge of the signing and that this date was more
                                                                        14     See Lehmann, 39 S.W.3d at 205 (citing
than twenty days after the judgment was signed.
                                                                        State Dept. of Highways & Pub. Transp. v.
                                                                        Payne, 838 S.W.2d 235, 241 (Tex. 1992), and Al-
The rules do not set a deadline for filing a motion under
                                                                        varado v. Farah Mfg. Co., 830 S.W.2d 911, 915
Rule 306a(5). 10
                                                                        (Tex. 1992)).
                                                                        15 See note 12 supra.
        10 See Levit v. Adams, 850 S.W.2d 469 (Tex.
        1993).                                                         Because the trial court here found that John did not
                                                                 have notice of the judgment until September 30, more
     Nevertheless, the court of appeals in this case held
                                                                 than twenty days after it was signed, time periods based
that such a motion must be filed within thirty days of the
                                                                 on the signing of the judgment ran instead from that date.
date a party or his attorney first either receives the clerk's
                                                                 Thus, under Rule 329b(a) the plaintiff had thirty days to
notice of a judgment or acquires actual knowledge that
                                                                 file a motion for new trial, and he did so. Because the
the judgment was signed. 11 Three other courts have
                                                                 trial court did not rule on the motion, it was overruled by
reached the same conclusion, 12 but two [**9] courts
                                                                 operation of law on the seventy-fifth day 16 after Sep-
have concluded that Rule 306a(5) does not prohibit a
                                                                 tember 30, which was December 14. The trial court's
motion from being filed at any time within the trial
                                                                 plenary jurisdiction did not expire until thirty days later,
court's plenary jurisdiction measured from the date de-          17
                                                                    on January 13, 2000. The plaintiff's notice of appeal
termined under Rule 306a(4). 13 The latter courts are
                                                                 was due ninety days 18 from September 30, which was
plainly correct: Rule 306a simply imposes no deadline,
                                                                 December 29, and was therefore timely when filed on
and none can be added by decision, 14 other than the
                                                                 December 13.
deadline of the expiration of the trial court's jurisdiction.
We disapprove the cases that have reached a contrary
                                                                        16    TEX. R. CIV. P. 329b(c).
result. 15
                                                                  [**11]
                                                                        17    TEX. R. CIV. P. 329b(e).
        11 12 S.W.3d at 891.
                                                                        18    TEX. R. APP. P. 26.1(a).
        12      Thompson v. Harco Nat'l Ins. Co., 997
        S.W.2d 607, 618 (Tex. App.--Dallas 1998, pet.                  [*742] We thus conclude that the court of appeals
        denied); Gonzalez v. Sanchez, 927 S.W.2d 218,            erred by dismissing the appeal for want of jurisdiction.
        221 (Tex. App.--El Paso 1996, no writ) (per cu-          Accordingly, the Court grants John's petition for review,
        riam); Montalvo v. Rio Nat'l Bank, 885 S.W.2d            and without hearing oral argument, reverses the judg-
        235, 237 (Tex. App.--Corpus Christi 1994, no             ment of the court of appeals and remands the case to that
        writ) (per curiam); Womack-Humphreys Archi-              court for consideration of the parties' other arguments.
        tects, Inc. v. Barrasso, 886 S.W.2d 809, 816 (Tex.
        App.--Dallas 1994, writ denied).
                                                                                                               Page 1




Caution
As of: Mar 30, 2015

                      WILLIAM JONES, ET AL., Appellants v. MARK C. GRIEGE, Appellee

                                                 No. 05-90-01194-CV

                             COURT OF APPEALS OF TEXAS, Fifth District, Dallas

                                     803 S.W.2d 486; 1991 Tex. App. LEXIS 453


                                                January 30, 1991, Filed

PRIOR HISTORY:           [**1] On Appeal from the             pealable if it finally adjudicates some substantial right
Probate Court No. 2; Dallas County, Texas; Trial Court        and the order may be final and appealable even though
Cause No. 86-4590-P/2.                                        the decision [**2] does not fully and finally dispose of
                                                              the entire probate proceeding. Bowen v. Hazel, 723
                                                              S.W.2d 795, 797 (Tex. App.--Texarkana 1987, no writ).
JUDGES: Enoch, C.J., and Lagarde and Joe Burnett JJ.          Nonetheless, Griege's request for punitive damages was
                                                              necessarily urged in Griege's proceeding against Jones.
OPINION BY: BURNETT                                           Therefore, if the summary judgment did not dispose of
                                                              that request, then it did not finally adjudicate all of
OPINION                                                       Griege's claims against Jones. A summary judgment en-
                                                              joys no presumption of finality. See Chase Manhattan
 [*487] OPINION                                               Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990)
                                                              (per curiam) (on mot. for reh'g). Therefore, we had to
      We questioned whether the judgment in this case
                                                              determine whether this summary judgment disposed of
was final, to determine whether we had jurisdiction over
                                                              Griege's request for punitive damages.
this appeal. For the reasons given below, we conclude
that the judgment is final and that we do have jurisdic-          In response to the inquiry that we made, Griege's at-
tion.                                                         torney wrote the Court a letter. It stated that:
     Appellee Mark C. Griege succeeded appellant Wil-              As counsel for [Griege] and in consultation with my
liam Jones as the guardian of an incompetent person.          client, we decided not to pursue the punitive damage
Griege sued Jones and alleged that Jones had misappro-        claim. . . . Therefore, the summary judgment which was
priated various funds held in trust for the incompetent.      entered was not entered by mistake. It was a conscious
Griege requested both actual and punitive damages from        decision on the part of [Griege] to forego his right to
Jones.                                                        attempt to collect punitive damages.
     Griege then filed a motion for summary judgment,              There is no showing that Griege had ever informed
which was granted. The summary judgment awarded               the trial court, however, of his decision to waive [**3]
Griege actual damages but was silent on Griege's request      his request for punitive damages. We hold that it was not
for punitive damages. Although the summary judgment           necessary for Griege to do so in order to show that the
did not purport to dispose of the entire probate proceed-     jurisdiction of this Court has been successfully invoked.
ing, it is not necessary that it do so for purposes of ap-
                                                                   We are aware that parties cannot generally confer
pellate review. An order in a probate proceeding is ap-
                                                              jurisdiction upon a court by waiver. What is usually
                                                                                                                      Page 2
                                    803 S.W.2d 486, *; 1991 Tex. App. LEXIS 453, **


meant by that principle, however, is that a party cannot        mine questions of jurisdiction if the facts are not other-
agree to having an action heard by a tribunal that other-       wise apparent in the record. Stewart v. Texco Newspa-
wise lacks authority to hear it. E.g., Welder v. Fritz, 750     pers, Inc., 734 S.W.2d 175, 177 (Tex. App.--Houston [1st
S.W.2d 930, 932 [*488] (Tex. App.--Corpus Christi,              Dist.] 1987, no writ). This Court has held that the inquiry
orig. proceeding) (parties cannot agree to treat a master's     into appellate jurisdiction is not in all cases limited to the
recommendation as if it were an order entered by a dis-         record on appeal. Smith v. Basham, 227 S.W.2d 853,
trict judge for purposes of having it reviewed); Hogan v.       855 (Tex. Civ. App.--Dallas), aff'd, 149 Tex. 279, 233
G., C. & S.F. Railway Co., 411 S.W.2d 815, 816 (Tex.            S.W.2d 297 (Tex. 1950). A court of appeals may make
Civ. App.--Beaumont 1966, writ ref'd) (parties cannot           inquiry into jurisdiction and hear extrinsic evidence to
agree to have the Ninth District Court of Appeals hear a        show that a record does not speak the truth, where it
case arising in the Twelfth District). A waiver of a court's    shows jurisdictional facts. Loper v. Hosier, 148 S.W.2d
lack of jurisdiction necessarily entails at least an implicit   889, 894 (Tex. Civ. App.--Dallas 1941, writ dism'd,
agreement between the parties, to which they hope that          judgment cor.) (per curiam) (on mot. for reh'g).
the court assents, to have the court resolve their contro-
                                                                     Usually, an appellate court receives extrinsic evi-
versy.
                                                                dence to show why an appeal should be dismissed. One
     In contrast, Griege has not waived the lack of this        example occurs when an appellant has enjoyed the bene-
Court's jurisdiction. He has waived only a claim for            fits of a judgment. See Roach [**6] v. Roach, 672
[**4] affirmative relief in the form of punitive damag-         S.W.2d 524, 532-33 (Tex. App.--Amarillo 1984, no writ)
es. 1 His act of waiver is a "unilateral act," not requiring    (on mot. for reh'g). Another example occurs when events
Jones's agreement. Burton v. National Bank of Com-              subsequent to the judgment render the subject matter of
merce of Dallas, 679 S.W.2d 115, 117 (Tex.                      the appeal moot. See Roadrunner Investments, Inc. v.
App.--Dallas 1984, no writ). By that unilateral act,            Texas Utilities Fuel Co., 526 S.W.2d 615, 616 (Tex. Civ.
Griege removes the necessity for the trial court to take        App.--Fort Worth 1975, no writ). Yet there is no sound
any further action and so imparts the requisite finality to     reason why an appellate court should be able to receive
the judgment now in place. That Jones may not have              extrinsic evidence to decline jurisdiction and not be able
known of Griege's decision to waive his request for puni-       to receive extrinsic evidence to assert jurisdiction. An
tive damages at the time that Jones perfected this appeal       instructive case is Texas & Pacific Railway Co. v. Beck-
is irrelevant: at most, Jones would have perfected this         ham Brothers & Co., 202 S.W. 991, 992 (Tex. Civ.
appeal prematurely. See TEX. R. APP. P. 58(b). The only         App.--El Paso 1918, writ ref'd). In that case, the names
remaining question is whether Griege was required, once         of two plaintiffs were at variance from the names of two
he had decided to waive his request for punitive damag-         prevailing parties in the judgment. The judgment there-
es, to take any further action in the trial court before he     fore did not show that all parties had been disposed of.
informed this Court of his waiver.                              Compare Shivers Well Service, Inc., v. Houston, 736
                                                                S.W.2d 251, 252-53 (Tex. App.--Fort Worth 1987, orig.
       1 We are careful to note that Griege has given           proceeding) (an asserted misnomer in two judgments
       us notice of his waiver of a request for relief, and     resulted in the judgments being interlocutory). The
       not a waiver of the cause of action that might           Beckham Brothers Court, however, allowed the identity
       support such relief. We expressly reserve ruling         of the parties to be established by uncontroverted affida-
       today on whether a party can waive, for the first        vit, so that [**7] the parties [*489] could show that
       time on appeal, an underlying cause of action            the judgment was in fact final. 202 S.W. at 992. Thus, it
       without taking further action, such as a nonsuit,        follows that, if this Court questions its jurisdiction be-
       in the trial court, in order to establish a judg-        cause the trial court has not expressly granted or denied a
       ment's finality.                                         request for relief, the party who made that request can
                                                                establish the finality of the trial court's judgment simply
     [**5]
                                                                by notifying this Court that he has waived the request.
     Each court of appeals may, on affidavit or otherwise,
                                                                     We conclude that Griege's notice, to this Court, of
as the court may determine, ascertain the matters of fact
                                                                his decision to waive his request for punitive damages
that are necessary to the proper exercise of its jurisdic-
                                                                suffices to establish that the trial court's judgment is now
tion. TEX. GOV'T. CODE ANN. § 22.220(c) (Vernon
                                                                final. Accordingly, we have jurisdiction over this appeal.
1988). Appellate courts may receive affidavits to deter-
|   | Cited
As of: April 7, 2015 5:50 PM EDT


                                 Jones v. Rabson & Broocks, L.L.C.
                                   Court of Appeals of Texas, First District, Houston
                                                February 13, 2003, Filed
                                                  NO. 01-01-01210-CV

Reporter
2003 Tex. App. LEXIS 1443; 2003 WL 302439

TERRY JONES, Appellant v. RABSON & BROOCKS,                     constable's sale. As soon and the landowner submitted
L.L.C.; PELICAN CONNECTION MANAGEMENT,                          his deed to the law firm, the law firm issued him a deed
L.L.C.; AND BROOCKS, BAKER & LANGE, L.L.P.,                     without warranty. The appellate court found that: (1) the
Appellees                                                       summary judgment was a final appealable judgment,
                                                                (2) the trial court did not abuse its discretion in not
Prior History: [*1] On Appeal from the 129th District           allowing the landowner to file his third and fourth
Court. Harris County, Texas. Trial Court Cause No.              amended petitions because the landowner did not seek
00-28899.                                                       the trial court's permission to file the amended
                                                                pleadings, (3) the landowner failed to state a cause of
Disposition: Affirmed.                                          action for theft or civil conspiracy because there was no
                                                                evidence of theft or any other unlawful act, and (4) the
Core Terms                                                      landowner failed to state a cause of action for slander of
                                                                title because there was no evidence of legal malice or
                                                                special damages.
deed, trial court, summary judgment, damages, theft,
cause of action, amended petition, constable's,                 Outcome
amendment to pleading, civil conspiracy, attorney's fees,
records, no evidence, counterclaim, sanctions, Street,          The district court's judgment was affirmed.
summary judgment hearing, slander of title, pleadings,
contends, overrule, cloud                                       LexisNexis® Headnotes

Case Summary                                                       Civil Procedure > ... > Pleadings > Amendment of
                                                                   Pleadings > General Overview
Procedural Posture                                                 Civil Procedure > Judgments > Summary Judgment >
                                                                   General Overview
Plaintiff landowner sued defendants, law firm, company,
and partnership (law firm), for quiet title, conversion,           Civil Procedure > ... > Summary Judgment > Hearings >
                                                                   General Overview
theft, civil conspiracy, tortious interference with contract,
wrongful execution, and slander of title. The law firm             Civil Procedure > ... > Summary Judgment > Motions for
filed a no-evidence motion for summary judgment. The               Summary Judgment > Timing of Motions & Responses
129th District Court for Harris County (Texas) rendered
summary judgment for the law firm. The landowner                HN1 Tex. R. Civ. P. 63 provides that amended pleadings
appealed.                                                       shall not be filed within seven days of trial without
                                                                obtaining leave of court. A summary judgment hearing
Overview                                                        is a trial governed by Tex. R. Civ. P. 63. It is well-settled
                                                                summary judgment law that if a nonmovant for summary
The law firm executed a judgment against a previous             judgment (1) files an amended pleading after the
owner of the land and obtained several parcels of the           summary judgment hearing and (2) the amended
previous owner's land at a constable's sale. The                pleading raises an additional claim not mentioned in the
landowner was negotiating a sale to a third party, which        summary judgment motion, then the trial court does not
fell thru because of the cloud on his title caused by the       err in granting the summary judgment motion because
                                             2003 Tex. App. LEXIS 1443, *1



the trial court may consider only the pleadings on file at        Torts > ... > Concerted Action > Civil Conspiracy > General
the time of the hearing, or filed after the hearing, but          Overview
before judgment with permission of the court.                     Torts > ... > Concerted Action > Civil Conspiracy > Elements

  Civil Procedure > Appeals > Summary Judgment Review >         HN5 To recover in an action for slander of title, a party
  General Overview                                              must plead and prove: (1) the uttering and publishing of
  Civil Procedure > ... > Summary Judgment > Motions for        disparaging words; (2) falsity; (3) malice; (4) special
  Summary Judgment > General Overview                           damages; (5) possession of an estate or interest in the
  Civil Procedure > ... > Summary Judgment > Entitlement        property disparaged; and (6) the loss of a specific sale.
  as Matter of Law > General Overview
                                                                  Civil Procedure > Judgments > Enforcement & Execution >
  Torts > ... > Concerted Action > Civil Conspiracy > General     Writs of Execution
  Overview
                                                                  Torts > Intentional Torts > Prima Facie Tort > General
HN2 The appellate court reviews a "no-evidence"                   Overview
summary judgment motion in the light most favorable to
the nonmovant; it assumes the nonmovant's evidence              HN6 Legal malice is defined as wrongful conduct that is
to be true and resolves any doubts in the nonmovant's           intentional and without just cause or excuse.
favor, while disregarding all evidence and inferences to
the contrary.                                                     Civil Procedure > ... > Summary Judgment > Hearings >
                                                                  General Overview
  Civil Procedure > ... > Summary Judgment > Entitlement          Real Property Law > Title Quality > Adverse Claim Actions >
  as Matter of Law > General Overview                             General Overview
  Criminal Law & Procedure > Criminal Offenses > Acts &           Real Property Law > Title Quality > Adverse Claim Actions >
  Mental States > General Overview                                Quiet Title Actions

HN3 To defeat a no-evidence motion under Tex. R. Civ.             Torts > Business Torts > Slander of Title > General
                                                                  Overview
P. 166a(i), the nonmovant has to raise a fact issue
showing that the defendants (1) unlawfully (2)                    Torts > Remedies > Damages > General Overview
appropriate his property (3) with the intent to deprive
him of it. Tex. Penal Code Ann. § 31.03 (Vernon 2000).          HN7 A plaintiff claiming slander of title may recover the
Intent to deprive is the accused's intent at the time of the    amount he would have realized from the lost sale minus
taking. Intent may be inferred from a failure to return the     the amount for which he can sell the land at the time of
property.                                                       trial with the cloud removed.

  Real Property Law > Title Quality > Adverse Claim Actions >   Judges: Panel consists of Justices Taft, Keyes, and
  Quiet Title Actions                                           Higley.
  Torts > ... > Concerted Action > Civil Conspiracy > General
                                                                Opinion by: Evelyn V. Keyes
  Overview

HN4 A civil conspiracy claim is not actionable unless           Opinion
there is an overt, unlawful act.
                                                                MEMORANDUM OPINION
  Real Property Law > Title Quality > Adverse Claim Actions >
  General Overview
                                                                This is an appeal of summary judgment rendered for
  Real Property Law > Title Quality > Adverse Claim Actions >   appellees/defendants Rabson & Broocks, L.L.C.;
  Quiet Title Actions                                           Pelican Connection Management, L.L.C.; and Broocks,
  Torts > Business Torts > Slander of Title > General           Baker & Lange, L.L.P (the Rabson defendants) against
  Overview                                                      appellant, Terry Jones. In eight issues presented for
                                                                review, Jones challenges the rendition of summary
  Torts > Business Torts > Slander of Title > Elements
                                                                judgment, contending that (1) the Rabson defendants
  Torts > Business Torts > Trade Libel > General Overview       were not entitled to summary judgment on his causes of
                                                                                                           Page 2 of 6
                                              2003 Tex. App. LEXIS 1443, *1



action for theft, civil conspiracy, slander of title, and        Upon receiving this deed, the Rabson defendants
tortious interference with contract; (2) he suffered             conceded that Jones was the rightful owner of the
recoverable damages; (3) he has a viable claim for               property. Jones asked the Rabson defendants to supply
attorney's fees; (4) the trial court abused its discretion       him with a general warranty deed but, because their title
by not granting him leave to file his third and fourth           was void from inception, the Rabson defendants refused
amended petitions; and (5) summary judgment was                  to execute such a deed. Instead, they provided Jones
improperly rendered because there was an unresolved              with a deed without warranty.
counterclaim. We affirm.
                                                                 The Rabson defendants characterize their inclusion of
Factual & Procedural Background                                  the Wayne Street [*4] property in the constable's sale
The parties [*2] do not dispute the essential facts of the       as an innocent mistake--one they rectified as soon as
underlying dispute; however, the parties' interpretation         they obtained legal proof that Jones owned the property.
of those facts is greatly disparate. The events leading to       Jones, in contrast, characterizes the entire series of
this lawsuit unfolded in the following sequence. The             transactions as a malicious, fraudulent scheme to
Rabson defendants obtained a $ 360,000 judgment                  deprive him of his property. When he did not obtain the
against Gladys Goffney in an unrelated lawsuit. In the           general warranty deed he asked for, Jones filed suit to
spring of 1999, as part of their efforts to collect the          quiet title. He sought to recover compensatory damages,
judgment, the Rabson defendants searched the Harris              exemplary damages, and attorney's fees. The Rabson
County real property records and identified roughly 17           defendants answered with a general denial.
pieces of property that Goffney owned, including an
unimproved lot at 5206 Wayne Street in Houston. After            On October 13, 2000, despite Jones's earlier refusal to
a writ of execution was issued on the judgment in May            accept an identical deed, the Rabson defendants
1999, the Rabson defendants requested a constable's              delivered to Jones an executed deed without warranty
sale of the properties. On July 6, 1999, the constable's         in which it conveyed any and all of their interests in the
sale was completed. The Rabson defendants received               Wayne street property to Jones. Evidently, Jones has
the deeds from the sale on August 11, 1999 and                   never recorded this deed. In November 2000, the Fifth
recorded them in October 1999. The Wayne Street                  Ward Community Redevelopment Corporation renewed
property, however, had been sold six years earlier to            its offer to purchase the property for $ 25,000. Jones
Noah Murchison. It is not clear from the record whether          refused the sale, in part because he believed that the
the deed records were incomplete or the person who               cloud on the property was not removed, in part because
searched the records overlooked the deed conveying               of the pending litigation, and in part because he was no
the property from Goffney to Murchison.                          longer interested in selling for that price.

After the writ of execution was issued in the unrelated          Jones filed a second amended petition in [*5] December
 [*3] lawsuit against Goffney, but before the constable's        2000, setting out causes of action for conversion, theft,
sale took place, Murchison sold the property to Jones            civil conspiracy to commit theft, and slander of title. 1
for $ 12,500. Jones recorded his deed on July 27, 1999.          Broocks, Baker & Lange filed a second, separate
Only after Jones began negotiating with the Fifth Ward           answer to this amended petition, repeating the general
Community Redevelopment Corporation to sell it the               denials and pleading the affirmative defenses of failure
property for $ 25,000 did he learn there was a cloud on          to mitigate damages and tender of performance. The
his title; he was unable to complete the sale of the             firm also added a counterclaim for Rule 13 violations,
property in November 1999 as planned. Just after the             seeking attorney's fees. In January, the Rabson
first of the year 2000, Jones contacted the Rabson               defendants filed a no-evidence motion for summary
defendants to attempt to resolve the question of                 judgment in which they identified elements of each
ownership. He originally sent an unsigned, unrecorded            cause of action for which there was no evidence and
deed to the Rabson defendants' counsel that was not              challenged all causes of action based on an absence of
accepted as proof of ownership; on March 30, 2000,               proof of damages. In his response to the motion, Jones
Jones supplied a signed, recorded deed conveying the             filed an affidavit setting out the facts in detail. The
property from Goffney to Murchison.                              motion was heard on March 26, 2001. Before the trial

1
    Although the second amended petition is not included in the clerk's record, the parties both refer to these causes of action
in their pleadings and motions; accordingly, we accept these as having been pleaded.
                                                                                                                   Page 3 of 6
                                             2003 Tex. App. LEXIS 1443, *5



court ruled on the motion, Jones filed a third amended         Amended Pleadings
petition, three days after the summary judgment hearing,
                                                               In issue seven, Jones contends the trial court abused its
adding a cause of action for tortious interference with
                                                               discretion by not granting him leave to file his third and
contract and seeking additional damages for mental
                                                               fourth amended petitions. He argues that because the
anguish. The Rabson defendants supplemented their
                                                               Rabson defendants did not move to strike the pleadings
motion for summary judgment to raise a no-evidence
                                                               or show they were prejudiced by the untimely amended
challenge to this additional cause of action. Jones filed      petitions, the trial court abused its discretion by not
a fourth amended [*6] petition on August 14, 2001              considering these later petitions. It is evident from the
adding a cause of action for wrongful execution.               judgment that the trial court did not consider the third or
                                                               fourth petitions because the judgment was based on
The trial court rendered summary judgment on                   the motions and the summary judgment hearing held on
September 10, 2001, basing it on the March hearing.            March 26, 2001, before either amended petition was
The judgment did not address the counterclaim for              filed. The record does not contain a motion for leave to
sanctions but included a "Mother Hubbard" clause.              late-file either petition, a motion to strike the amended
Jones's motion for new trial was overruled by operation        pleadings, or an order striking them.
of law and this appeal ensued. On appeal, Jones does
not address the cause of action for conversion; thus he        Rule 63 of the Texas Rules of Civil Procedure HN1
has waived any complaint regarding this issue.                 provides that amended pleadings shall not be filed
                                                               within seven days of trial without obtaining leave of
Finality of Judgment                                           court. TEX. R. CIV. P. 63. A summary judgment hearing
                                                               is a "trial" governed by Rule 63. See Goswami v.
As a threshold matter, we address Jones's eighth issue         Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490,
on review to determine whether this appeal is, as he           31 Tex. Sup. Ct. J. 399 (Tex. 1988). It is well-settled
claims, interlocutory because there is an outstanding          summary judgment [*9] law that if a nonmovant for
counterclaim for sanctions. The Rabson defendants              summary judgment (1) files an amended pleading after
argue that a counterclaim for sanctions is not a cause of      the summary judgment hearing and (2) the amended
action that the trial [*7] court was obligated to address in   pleading raises an additional claim not mentioned in the
its judgment. They also contend that the trial court orally    summary judgment motion, then the trial court does not
denied the motion for sanctions, but that the order was        err in granting the summary judgment motion because
apparently not reduced to writing. Jones does not              the trial court may consider only the pleadings on file at
address whether the trial court ruled on the motion for        the time of the hearing, or filed after the hearing (but
sanctions and speaks only to the language of the               before judgment) with permission of the court.
judgment itself.                                               Automaker, Inc. v. C.C.R.T. Co., Ltd., 976 S.W.2d 744,
                                                               746 (Tex. App.--Houston [1st Dist.] 1998, no pet.). Jones
Jones argues that the judgment was interlocutory               did not seek the trial court's permission to file his
because there is no language in the trial court's              amended pleadings. Although the Rabson defendants
judgment that "with unmistakable clarity informs that it       did not file a motion to strike the amended pleadings,
was a final judgment." We disagree. The order is entitled      they filed a letter with the trial court objecting to the
"FINAL SUMMARY JUDGMENT" and the last sentence                 amendments. The trial court did not err in refusing to
of the judgment states, "All relief requested and not          consider these late-filed pleadings.
expressly granted is denied." The Rabson defendants            We overrule issue seven. Therefore, we will not address
have not contested the finality of the appeal, nor             Jones's causes of action for tortious interference with
appealed the trial court's denial of their claim for           contract or wrongful execution, nor his claim for
sanctions. Jones treated the judgment as final by filing       damages based on mental anguish. We also overrule
a motion for new trial, in which he does not mention the       issue five, in which Jones contends that summary
counterclaim, and by filing a notice of appeal. Based on       judgment on the tortious interference [*10] with contract
the record and the language of the judgment, we                claim was improper.
conclude that the judgment was final for purposes of
appeal. See Lehman v. Har-Con Corp., 39 S.W.3d 191,            Theft, Civil Conspiracy, and Slander of Title
205, 44 Tex. Sup. Ct. J. 364 (Tex. 2001). Accordingly,
we overrule issue eight and [*8] address the merits of         In issues one, two, and three, Jones contends the trial
the appeal.                                                    court erred in rendering summary judgment for the
                                                                                                          Page 4 of 6
                                           2003 Tex. App. LEXIS 1443, *10



Rabson defendants on Jones's claims for theft, civil          We overrule issues one and two.
conspiracy, and slander of title. HN2 We review a
"no-evidence" summary judgment motion in the light            Slander of Title
most favorable to the nonmovant; here, we assume
Jones's evidence to be true and resolve any doubts in         HN5 To recover in an action for slander of title, a party
his favor, while disregarding all evidence and inferences     must plead and prove: (1) the uttering and publishing of
to the contrary. Jones v. Bank United of Texas, FSB, 51       disparaging words; (2) falsity; (3) malice; (4) special
S.W.3d 341, 343 (Tex. App.--Houston [1st Dist.] 2001,         damages; (5) possession of an estate or interest in the
pet. denied).                                                 property disparaged; and (6) the loss of a specific sale.
                                                              See Williams v. Jennings, 755 S.W.2d 874, 879 (Tex.
Theft & Civil Conspiracy                                      App.--Houston [14th Dist.] 1988, writ denied). Jones
                                                              cannot prevail because he has provided no evidence of
HN3 To defeat the no-evidence motion under 166a(i),           legal malice or of special damages.
Jones had to raise a fact issue showing that the Rabson
defendants (1) unlawfully (2) appropriated his property       HN6 Legal malice is defined as wrongful conduct that is
(3) with the intent to deprive him of it. TEX. PEN. CODE      intentional and without just cause or excuse. Continental
ANN. § 31.03 (Vernon 2000). Intent to deprive is the          Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452, 40
accused's intent at the time of the taking. Thomas v.         Tex. Sup. Ct. J. 172 (Tex. 1996). Because the Rabson
State, 753 S.W.2d 688, 694 (Tex. Crim. App. 1988).            defendants had a lawful writ of execution and the
Intent may be inferred from a failure to return the           property records contained Gladys Goffney's deed to
property. Rowland v. State, 744 S.W.2d 610, 613 (Tex.         the Wayne Street property, the inclusion [*13] of the
Crim. App. 1988). [*11]                                       property in the constable's sale, although incorrect, was
Although Jones argues that his affidavit provides ample       based on reasonable cause. Thus, there is no evidence
evidence of theft, we cannot agree. He has globally           of legal malice. Moreover, although Jones proved the
stated facts to support his conclusions as he sees them,      loss of a specific sale, he did not offer any evidence of
but has not connected any of these facts to each              special damages. HN7 A plaintiff may recover the
challenged element of his claims, such as whether the         amount he would have realized from the lost sale minus
Rabson defendants committed an unlawful act. The              the amount for which he could have sold the land at the
constable's sale was held pursuant to a lawful writ of        time of trial with the cloud removed. A.H. Belo Corp. v.
execution. Nor does Jones provide evidence of intent.         Sanders, 632 S.W.2d 145, 146, 25 Tex. Sup. Ct. J. 257
The Rabson defendants argue there is no evidence of           (Tex. 1982). The time of trial here was March 26,
intent to deprive Jones of the property because the           2001--the date of the summary judgment hearing. See
constable's deed transferred only Gladys Goffney's            Goswami, 751 S.W.2d at 490. Although Jones provided
interest in the property, not Jones's. The Rabson             evidence that he was unable to complete the sale for $
defendants provided Jones with a deed disclaiming any         25,000, he provided no evidence of the market value of
interest in the property, albeit a deed Jones apparently      the property at the time of trial. Without such evidence,
believes does not remove the cloud on the title, thus         the trial court could not calculate special damages,
refuting any inference of theft. While the inclusion of the   even if it determined the Rabson defendants had
Wayne Street property in the constable's sale was             slandered Jones's title. Accordingly, we hold the trial
unfortunate, we hold Jones provided no evidence to            court did not err in rendering summary judgment on this
show that it was tantamount to theft.                         claim.

                                                              We overrule issue three.
HN4 A civil conspiracy claim is not actionable unless
there is an overt, unlawful act. American Tobacco Co.,
                                                              Attorney's Fees
Inc. v. Grinnell, 951 S.W.2d 420, 438, 40 Tex. Sup. Ct. J.
658 (Tex. 1997). Because we have held [*12] there was         In issue six, Jones contends that he is entitled to
no theft, and Jones has not alleged any other unlawful        attorney's fees because his suit is one for [*14]
act, we further hold that there was no overt, unlawful act    declaratory judgment. The Rabson defendants argue
upon which a conspiracy could have rested. The trial          that the true nature of the suit is to remove a cloud on
court did not err in rendering summary judgment on            Jones's title, thus attorney's fees are not recoverable.
Jones's claims for theft and civil conspiracy.                Because we have overruled all of appellant's other
                                                                                                            Page 5 of 6
                                         2003 Tex. App. LEXIS 1443, *14



issues on appeal, the issue of attorney's fees is moot.   Evelyn V. Keyes, Justice

We affirm the trial court's judgment.




                                                                                     Page 6 of 6
|   | Caution
As of: April 7, 2015 5:51 PM EDT


                                              Lefton v. Griffith
                              Court of Appeals of Texas, Fourth District, San Antonio
                                March 31, 2004, Delivered ; March 31, 2004, Filed
                                                No. 04-03-00402-CV

Reporter
136 S.W.3d 271; 2004 Tex. App. LEXIS 2812

David LEFTON and Arthur Lefton, Appellants v. Dixie          rented property. She filed an action against the lessors,
GRIFFITH d/b/a Discount Furniture Warehouse,                 who failed to answer the complaint. After a default
Appellee                                                     judgment was entered in the case, the lessors sought
                                                             review. On appeal, the court determined that there was
Subsequent History: Released for Publication July 2,         insufficient evidence to support the award of economic
2004.                                                        damages. The lessee, as the owner of the property, was
                                                             permitted to testify as to its market value. However, the
Prior History: [**1] From the 225th Judicial District        evidence was conclusory as to the value of the inventory
Court, Bexar County, Texas. Trial Court No.                  and the home. The lessee did not show how she came
2002-CI-15103. Honorable Pat Boone, Judge Presiding.         to a conclusion regarding loss. Further, she failed to
                                                             show that she had been denied a loan or that a higher
                                                             interest rate was charged. She failed to show lost profits
Disposition: Affirmed in part, reversed and remanded
                                                             with reasonable certainty. Her allegations did not rise to
in part.
                                                             the level of compensable mental anguish. However, the
                                                             award of attorney fees was upheld because it was
Core Terms                                                   presumed that the trial court took judicial notice of the
                                                             usual and customary attorney fees. Finally, the court
damages, mental anguish, trial court, lost profits,          overruled the lessors' argument that the return of service
inventory, default judgment, economic damages,               was invalid.
attorney's fees, award of damages, reputation, market
value, provides, allegations, distress, notice, legal        Outcome
insufficiency, notice of appeal, furniture, issues, fails,   The court reversed the trial court's award of economic
days                                                         damages and mental anguish. The case was remanded
                                                             for a new trial on those issues. The court affirmed the
Case Summary                                                 award of attorney fees.

Procedural Posture                                           LexisNexis® Headnotes
Appellant lessors challenged a decision from the 225th
                                                               Civil Procedure > Appeals > Notice of Appeal
Judicial District Court in Bexar County (Texas), which
entered a default judgment in favor of appellee lessee in    HN1 See Tex. R. App. P. 30.
an action alleging breach of contract, tortious
interference, fraud, intentional infliction of emotional       Civil Procedure > Appeals > Reviewability of Lower Court
distress, and a violation of the Texas Deceptive Trade         Decisions > General Overview
Practices Act.
                                                               Civil Procedure > Appeals > Notice of Appeal

Overview                                                       Civil Procedure > Appeals > Reviewability of Lower Court
                                                               Decisions > Timing of Appeals
The lessee was unable to pay rent. The lessors agreed
to give her until a certain date to vacate the premises.     HN3 Tex. R. App. P. 25.1(d)(7)(A) requires that a notice
However, they later refused to grant access to the           of restricted appeal must state that the appellant is a
                               136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1



party affected by the trial court's judgment but did not      supports the jury finding is so weak as to be clearly
participate--either in person or through counsel--in the      wrong and manifestly unjust.
hearing that resulted in the judgment complained of.
Tex. R. App. P. 25.1(d)(7)(A). Rule 25.1(d)(7)(B) further       Evidence > ... > Testimony > Lay Witnesses > General
requires that a notice of restricted appeal must state          Overview
that the appellant did not timely file either a                 Real Property Law > Property Valuations
postjudgment motion, request for findings of fact and
conclusions of law, or notice of appeal. Tex. R. App. P.      HN7 An owner is qualified to testify about the market
25.1(d)(7)(B).                                                value of his property.

  Civil Procedure > ... > Pretrial Judgments > Default &        Civil Procedure > Remedies > Damages > General
  Default Judgments > Default Judgments                         Overview
  Civil Procedure > Appeals > Reviewability of Lower Court
  Decisions > Timing of Appeals                               HN8 Documents that represent merely conclusory
                                                              allegations will not support an amount awarded for
HN2 Where a party fails to timely file an answer, the         unliquidated damages.
facts alleged in a complaint are deemed admitted,
except the amount of damages.                                   Civil Procedure > Judgments > Pretrial Judgments >
                                                                General Overview
  Civil Procedure > Appeals > Appellate Briefs                  Civil Procedure > ... > Pretrial Judgments > Default &
                                                                Default Judgments > General Overview
HN4 A reply brief is limited in scope to responding to
matters in an appellee's brief. Tex. R. App. P. 38.3.           Civil Procedure > ... > Pretrial Judgments > Default &
                                                                Default Judgments > Default Judgments
  Civil Procedure > ... > Standards of Review > Substantial     Civil Procedure > Remedies > Damages > General
  Evidence > General Overview                                   Overview
  Evidence > Burdens of Proof > General Overview
                                                              HN9 There can be no recovery for damages which are
HN5 An appellant attacking the legal sufficiency of an        speculative or conjectural.
adverse finding on which he did not have the burden of
proof must demonstrate that there is no evidence to             Civil Procedure > Remedies > Damages > General
                                                                Overview
support the adverse finding. The reviewing court must
consider all evidence in a light most favorable to the        HN10 Texas law provides that in order to recover actual
party in whose favor the verdict has been rendered and        damages for loss of credit reputation, a plaintiff must
indulge every reasonable inference from the evidence          first show that a loan was actually denied or a higher
in such party's favor. If more than a scintilla of evidence   interest rate charged.
exists to support the finding, the no-evidence challenge
fails.                                                          Contracts Law > ... > Measurement of Damages >
                                                                Foreseeable Damages > General Overview
  Civil Procedure > ... > Standards of Review > Substantial
  Evidence > General Overview                                 HN11 Recovery for lost profits does not require that the
  Evidence > Burdens of Proof > General Overview              loss be susceptible to exact calculation. However, the
                                                              injured party must do more than show that it suffered
HN6 A party attacking the factual sufficiency of an           some lost profits. The loss amount must be shown by
adverse finding on an issue on which the other party          competent evidence with reasonable certainty. This is a
had the burden of proof must demonstrate that there is        fact-intensive determination. At a minimum, opinions of
insufficient evidence to support the adverse finding. In      lost-profit estimates must be based on objective facts,
reviewing an insufficiency of the evidence challenge,         figures, or data from which the lost-profits amount may
the court must first consider, weigh, and examine all of      be ascertained. Although supporting documentation
the evidence which supports and which is contrary to          may affect the weight of the evidence, it is not necessary
the jury's determination. Having done so, the court           to produce in court the documents supporting the
should set aside the verdict only if the evidence that        opinions or estimates.
                                                                                                              Page 2 of 9
                                136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1


  Contracts Law > ... > Measurement of Damages >                  HN15 See Tex. Civ. Prac. & Rem. Code Ann. § 38.004(1)
  Foreseeable Damages > General Overview                          (1997).

HN12 The bare assertion that contracts were lost does               Civil Procedure > Remedies > Costs & Attorney Fees >
not demonstrate a reasonably certain objective                      General Overview
determination of lost profits.
                                                                    Evidence > Inferences & Presumptions > General
                                                                    Overview
  Torts > ... > Types of Losses > Pain & Suffering > General
  Overview                                                          Evidence > Judicial Notice > General Overview
  Torts > ... > Pain & Suffering > Emotional Distress > General
                                                                  HN16 Even if a trial court did not state that it was taking
  Overview
                                                                  judicial notice of attorney fees, an appellate court may
  Torts > ... > Pain & Suffering > Emotional Distress >           presume that the trial court did so.
   Evidence
                                                                    Civil Procedure > ... > Service of Process > Proof of
HN13 Mental anguish damages are appropriate when                    Service > General Overview
there is either direct evidence of the nature, duration,
and severity of plaintiffs' mental anguish, thus                    Civil Procedure > Judgments > Pretrial Judgments >
                                                                    General Overview
establishing a substantial disruption in the plaintiffs'
daily routine, or other evidence of a high degree of                Civil Procedure > ... > Pretrial Judgments > Default &
mental pain and distress that is more than mere worry,              Default Judgments > General Overview
anxiety, vexation, or anger. The absence of evidence of             Civil Procedure > ... > Pretrial Judgments > Default &
the nature, duration, and severity of mental anguish,               Default Judgments > Default Judgments
particularly when it can be readily supplied or procured            Governments > Courts > Clerks of Court
by the plaintiff, justifies close judicial scrutiny of other
evidence offered on this element of damages.                      HN17 See Tex. R. Civ. P. 107.

  Civil Procedure > ... > Jury Trials > Jury Instructions >         Civil Procedure > Judgments > Pretrial Judgments >
  General Overview                                                  General Overview

  Torts > ... > Types of Losses > Pain & Suffering > General        Civil Procedure > ... > Pretrial Judgments > Default &
  Overview                                                          Default Judgments > General Overview

  Torts > ... > Pain & Suffering > Emotional Distress > General     Civil Procedure > ... > Pretrial Judgments > Default &
  Overview                                                          Default Judgments > Default Judgments
                                                                    Civil Procedure > Remedies > Damages > General
HN14 Texas law provides that not only must there be
                                                                    Overview
evidence of the existence of compensable mental
anguish, there must also be some evidence to justify                Civil Procedure > Appeals > Remands
the amount awarded. While the impossibility of any                  Real Property Law > ... > Remedies > Damages > General
exact evaluation of mental anguish requires that juries             Overview
be given a measure of discretion in finding damages,
                                                                    Torts > ... > Pain & Suffering > Emotional Distress > General
that discretion is limited. Juries cannot simply pick a
                                                                    Overview
number and put it in the blank. They must find an
amount that, in the standard language of the jury charge,         HN18 When damages awarded in a default judgment
would fairly and reasonably compensate for the loss.              after an uncontested hearing are supported by either
Reasonable compensation is no easier to determine                 legally or factually insufficient evidence, an appellate
than reasonable behavior--often it may be harder--but             court must remand the case for a new trial on those
the law requires factfinders to determine both.                   damage issues.

  Civil Procedure > Remedies > Costs & Attorney Fees >            Counsel: For Appellant: Ryan G. Anderson, David L.
  General Overview
                                                                  Hanna, Kathy H. Kang, William H. Ford, Ball & Weed,
  Evidence > Judicial Notice > General Overview                   P.C., San Antonio, TX.
                                                                                                           Page 3 of 9
                                 136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1



For Appellee: N. Mark Ralls, Robert A. Ewert, Gonzales           The Leftons filed a restricted appeal under Texas Rule
Hoblit Ferguson L.L.P., San Antonio, TX.                         of Appellate Procedure 30. See TEX. R. APP. P. 30 HN1
                                                                 ("A party who did not participate--either in person or
Judges: Opinion by: Karen Angelini, Justice. Sitting:            through counsel--in the hearing that resulted in the
Alma L. Lopez, Chief Justice, Karen Angelini, Justice,           judgment complained of and who did not timely file a
Sandee Byran Marion, Justice.                                    postjudgment motion or request for findings of fact and
                                                                 conclusions of law, or a notice of appeal within the time
Opinion by: Karen Angelini                                       permitted by Rule 26.1(a), may file a notice of appeal
                                                                 within the time permitted by Rule 26.1(c)."). 1 HN2
Opinion                                                          Because the Leftons failed to timely file an answer, the
                                                                 facts alleged in Griffith's [**3] petition are deemed
        David and Arthur Lefton appeal a default
    [*273]
                                                                 admitted, except the amount of damages. Tex.
                                                                 Commerce Bank, N. A. v. New, 3 S.W.3d 515, 516, 42
judgment granted in favor of Dixie Griffith. We affirm the
                                                                 Tex. Sup. Ct. J. 1175 (Tex. 1999). The Leftons present
judgment of the trial court in part and reverse and
                                                                 the following issues for review:
remand the judgment of the trial court in part.
                                                                 (1) Did Griffith present legally and factually sufficient
BACKGROUND                                                       evidence to support the award of damages?
Dixie Griffith leased a property owned by David and
Arthur Lefton for use as a furniture store. According to         (2) Did Griffith show proof of service?
Griffith, she was unable to pay her rent. The Leftons
                                                                  [**4] In their reply brief, the Leftons bring up two
agreed to give her until November 1, 2000, to vacate.
                                                                 additional issues: first, they allege that Griffith cannot
Instead of keeping their promise, [*274] however, they
                                                                 recover because she fails to establish that the Leftons
changed the locks on October 20, 2000. For eight days,
                                                                 caused the damages awarded; second, they allege that
they refused to give her access to the property. She was
                                                                 Griffith cannot recover because her alleged facts do not
allowed access to the property on October 28, 2000, for
                                                                 constitute a cause of action under the DTPA. HN4 A
two weekend days. Because of the Leftons' actions,
                                                                 reply brief is limited in scope to responding to matters in
Griffith alleges, she was forced her to sell the inventory
                                                                 an appellee's brief. TEX. R. APP. P. 38.3. Therefore,
of her furniture business at an extreme loss. Additionally,
                                                                 because the Leftons failed to bring up these issues in
she was forced to sell her home to pay [**2] her
                                                                 their original brief, they are not properly before this
creditors. She also suffered damage to credit reputation,
                                                                 court. Sunbeam Envtl. Servs., Inc. v. Tex. Workers'
lost profits, and mental anguish.
                                                                 Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.
Griffith sued the Leftons for breach of contract, tortious       App.--Austin 2002, no pet.).
interference, fraud, intentional infliction of emotional
distress, and violation of the Deceptive Trade Practices         Even if these issues were properly before the court,
Act. When the Leftons failed to answer the suit, Griffith        however, because the Leftons failed to timely file an
moved for default judgment. The trial court granted              answer, the facts alleged in Griffith's petition are deemed
default judgment in favor of Griffith on her DTPA claim,         admitted, except the amount of damages. New, 3
awarding her $ 350,000 in economic damages, $                    S.W.3d at 516. In her petition, [*275] Griffith alleges
700,000 in trebled economic damages, $ 290,000 in                that the Leftons' actions "were a producing cause of
mental anguish damages, $ 580,000 in trebled mental              damages to Plaintiff." She further alleges a DTPA cause
anguish damages, and $ 2,000 in attorney fees.                   of action by stating that "Defendants engaged in

1
   Texas Rule of Appellate Procedure 25.1(d)(7)(A) HN3 requires that a notice of restricted appeal must "state that the
appellant is a party affected by the trial court's judgment but did not participate--either in person or through counsel--in the
hearing that resulted in the judgment complained of." TEX. R. APP. P. 25.1(d)(7)(A). Texas Rule of Appellate Procedure
25.1(d)(7)(B) further requires that a notice of restricted appeal must "state that the appellant did not timely file either a
postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal." TEX. R. APP. P. 25.1(d)(7)(B).
Griffith argues that the Leftons failed to properly perfect their appeal because their notice of appeal fails to contain these
statements. We have since granted leave, however, for the Leftons to so amend their notice of appeal, and they have done so.
See TEX. R. APP. P. 25.1(f) (allowing notice to be amended "on leave of the appellate court"). Accordingly, we overrule this
issue on appeal.
                                                                                                                   Page 4 of 9
                               136 S.W.3d 271, *275; 2004 Tex. App. LEXIS 2812, **4



unconscionable conduct as defined in § 17.50 of the            was (a) not filed with the court at the time of the hearing,
Texas Business & Commerce Code. [**5] " Thus,                  and (b) not admitted into evidence, we cannot know that
because the Leftons alleged causation and a DTPA               the trial court ever considered it.
claim, and because these allegations are admitted, the
Leftons' argument is without merit.                            Griffith responds by pointing out that the trial court
                                                               clearly references an affidavit [**7] during the hearing.
DISCUSSION                                                     The Leftons counter, however, that while the record
                                                               reflects that the trial court referred to an affidavit at the
I. Legal and Factual Sufficiency                               default judgment hearing, there is no evidence that the
                                                               trial court was referring to Griffith's affidavit.
The Leftons contend that Griffith failed to present legally
and factually sufficient evidence of damages.                  It is clear that the trial court had Griffith's affidavit before
                                                               it. At the hearing, Griffith's lawyer refers to the affidavit
HN5 An appellant attacking the legal sufficiency of an         several times. Additionally, the trial court itself indicates
adverse finding on which he did not have the burden of         that it had Griffith's affidavit before it:
proof must demonstrate that there is no evidence to
support the adverse finding. Croucher v. Croucher, 660         THE COURT: Where is [the plaintiff]?
S.W.2d 55, 58, 27 Tex. Sup. Ct. J. 59 (Tex. 1983). The
reviewing court must consider all evidence in a light          COUNSEL: Between Florida and Dallas.
most favorable to the party in whose favor the verdict
has been rendered and indulge every reasonable                 THE COURT: Florida and--when did she leave?
inference from the evidence in such party's favor. Harbin
v. Seale, 461 S.W.2d 591, 592, 14 Tex. Sup. Ct. J. 128         COUNSEL: I am unaware of that answer.
(Tex. 1970). If more than a scintilla of evidence exists to
                                                               THE COURT: Did she leave last week, or when did she
support the finding, the no-evidence challenge fails.
                                                               leave?
Formosa Plastics Corp. USA v. Presidio Eng'rs, 960
S.W.2d 41, 48, 41 Tex. Sup. Ct. J. 289 (Tex. 1998).
                                                               [*276] COUNSEL: Honestly, Your Honor, I don't know.
HN6 A party attacking the factual sufficiency of an
                                                               THE COURT: What's your client's name?
adverse finding on an issue on which the other party
had the burden of proof must demonstrate that there
                                                               COUNSEL: Dixie Griffith.
  [**6] is insufficient evidence to support the adverse
finding. Hickey v. Couchman, 797 S.W.2d 103, 109               THE COURT: And you don't know--she's between
(Tex. App.--Corpus Christi 1990, writ denied). In              Florida and where?
reviewing an insufficiency of the evidence challenge,
the court must first consider, weigh, and examine all of       COUNSEL: Dallas.
the evidence which supports and which is contrary to
the jury's determination. Plas-Tex, Inc. v. U.S. Steel         THE COURT: And you don't know when she left.
Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329
(Tex. 1989) (per curiam). Having done so, the court            COUNSEL: No, I'm not sure of that.
should set aside the verdict only if the evidence that
supports the jury finding is so weak as to be clearly          THE COURT: Huh?
wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d
175, 176, 29 Tex. Sup. Ct. J. 214 (Tex. 1986) (per             COUNSEL: I am not sure of that, no.
curiam).
                                                               THE COURT: You know why this puzzles me? Because
A. Was Affidavit in Evidence?                                  this was--your client's affidavit was notarized today.

The record contains an affidavit by Griffith describing        COUNSEL: That's correct. I have been in touch with her
her damages. This affidavit is on file in the clerk's record   over [**8] the phone, and she faxed me her signature on
and appears to have been filed after the entry of default      that affidavit after we [had] discussed it, and I had a
judgment. The Leftons argue that because the affidavit         faxed copy to her.
                                                                                                            Page 5 of 9
                               136 S.W.3d 271, *276; 2004 Tex. App. LEXIS 2812, **8



The trial court's statement, "This was--your client's         Because [**10] the Defendants' actions placed me in a
affidavit was notarized today," indicates that the trial      position where I needed cash quickly in order to satisfy
judge had an affidavit of Griffith's before him and was       some of my creditors, I was forced to sell my personal
looking at it as he made this statement. Furthermore,         residence as quickly as possible, which resulted in a
because Griffith's affidavit was notarized the same day       loss of $ 60,000 on the sale of my house.
as the hearing took place, this statement confirms that it
was Griffith's affidavit that was before the trial court.      [*277] Citing Porras v. Craig, 675 S.W.2d 503, 27 Tex.
Because it is clear the trial court considered Griffith's     Sup. Ct. J. 515 (Tex. 1984), the Leftons argue that the
affidavit, we overrule this issue on appeal. See New, 3       above testimony is incompetent because it fails to refer
S.W.3d at 517 ("The trial court did not err when it           to market value. In Porras, a case based on permanent
considered the affidavits in rendering its default            damage to land, the court reversed an award of
judgment.").                                                  damages where the owner failed to testify to the market
                                                              value of his property. Id. 675 S.W.2d at 504. In Porras,
B. Affidavit Testimony                                        however, "the owner's testimony affirmatively showed
                                                              that he referred to personal rather than market value."
The Leftons next argue that Griffith's affidavit does not     Id. 675 S.W.2d at 505. Here, Griffith's testimony does
provide legally or factually sufficient evidence of           not affirmatively show that she was referring to personal
economic damages, mental anguish damages, or                  rather than market value. Thus, this case is
attorney fees.                                                distinguishable from Porras on this basis. In fact, Porras
                                                              affirms the general rule that HN7 "an owner is qualified
1. Economic Damages
                                                              to testify about the market value of his property." Id.
The trial court awarded Griffith $ 350,000 in economic        Because, therefore, an owner is qualified to testify
damages. In her affidavit, Griffith describes four types of   about the market value of his property, and because
economic damages: (1) the loss resulting from the sale        Griffith's [**11] testimony does not affirmatively show
of her inventory, which she [**9] values at $ 290,000; (2)    that she was referring to personal rather than market
the loss resulting from the sale of her home, which she       value, we overrule this argument on appeal.
values at $ 60,000; (3) the harm to her credit rating,
                                                              The Leftons also argue that the above testimony is
which she values at $ 250,000; and (4) lost profits,
                                                              incompetent because it is conclusory. There is no
which she values at $ 175,000. The Leftons argue that
                                                              evidence, they argue, that the inventory Griffith sold for
Griffith's testimony describing these four types of
                                                              $ 10,000 was actually worth $ 300,000. We agree. HN8
economic damages is legally and factually insufficient.
                                                              Documents that represent merely conclusory
a. Losses from Sale of Inventory and Sale of Home             allegations will not support an amount awarded for
                                                              unliquidated damages. Jones v. Andrews, 873 S.W.2d
The Leftons first argue that Griffith's testimony             102, 107 (Tex. App.--Dallas 1994, no writ). Here,
describing the alleged losses from the sale of her            Griffith's allegations fail to provide a factual basis to
inventory and home is legally and factually insufficient.     support her conclusion. We do not know, for example,
Griffith's affidavit provides:                                the type of furniture or even the amount of furniture she
                                                              sold. As such, we have no factual basis upon which to
My inventory at the time of the forced sale was worth $
                                                              affirm her conclusion. See Brownlee v. Brownlee, 665
300,000. I was forced to sell my entire inventory for only
                                                              S.W.2d 111, 112, 27 Tex. Sup. Ct. J. 259 (Tex. 1984)
$ 10,000 to the only company that offered me a bid.
                                                              (holding that affidavits consisting only of conclusions
Therefore, I lost $ 290,000 because the Defendants
                                                              are insufficient to raise an issue of fact). Accordingly, we
broke their promise and locked me out of the Premises
                                                              hold that the evidence of loss from the sale of inventory
and forced me to sell my inventory.
                                                              is legally insufficient to support an award for damages.
....
                                                              The testimony regarding the sale of her home is equally
Moreover, because the failure of my business deprived         conclusory. As the owner of her [**12] home, Griffith is
me of my only source of income, I was unable to pay my        clearly qualified to testify about the value of it. Porras,
personal creditors. As a result, I was soon forced to sell    675 S.W.2d at 505. Because, however, she fails to
my house, at a greatly reduced price, in an attempt to        explain how she arrived at the conclusion that she lost $
pay my business suppliers and personal creditors.             60,000 from having to sell her home to pay her creditors,
                                                                                                            Page 6 of 9
                               136 S.W.3d 271, *277; 2004 Tex. App. LEXIS 2812, **12



we have no way of knowing what she based her                   have been in business for at least five more years,
conclusion on. Her estimate could be purely speculative.       probably more. I personally earned net profit of
HN9 "There can be no recovery for damages which are            approximately $ 35,000 per year from the business.
speculative or conjectural." Roberts v. U.S. Home Corp.,       Therefore, I believe I am entitled to lost profits equal to
694 S.W.2d 129, 135 (Tex. App.--San Antonio 1985, no           that same income for the next five years, or $ 175,000.
writ) (reversing a default judgment award for damages
to credit reputation). Accordingly, we hold that the           HN11 Recovery for lost profits does not require that the
evidence of loss from the sale of Griffith's home is           loss be susceptible to exact calculation. Tex.
legally insufficient to support an award of damages.           Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877
                                                               S.W.2d 276, 279, 37 Tex. Sup. Ct. J. 676 (Tex. 1994).
b. Damage to Credit Reputation                                 However, the injured party must do more than show that
                                                               it suffered some lost profits. Id. The loss amount must
The Leftons next argue, and Griffith concedes, that            be shown by competent evidence with reasonable
Griffith's testimony regarding her damage to credit            certainty. Szczepanik v. First S. Trust Co., 883 S.W.2d
reputation is incompetent. Griffith's affidavit provides:      648, 649, 37 Tex. Sup. Ct. J. 860 (Tex. 1994); Holt
                                                               Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84, 35
Further, as a result of the loss of my business, which         Tex. Sup. Ct. J. 881 (Tex. 1992). This is a fact-intensive
was caused by the Defendants, my credit reputation             determination. Heine, 835 S.W.2d at 84. At a minimum,
was ruined because I was unable to pay my bills as they        opinions of lost-profit estimates must be based on
came due. This injury was a natural, probable, and             objective facts, figures, or data from which the
foreseeable consequence of the Defendants' [**13]              lost-profits amount may be ascertained. [**15]
wrongful conduct. This injury to credit rating has caused      Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at
extreme hardship over the past two years and will              84. Although supporting documentation may affect the
continue to cause hardship into the foreseeable future.        weight of the evidence, it is not necessary to produce in
I believe that this loss of credit rating has damaged me       court the documents supporting the opinions or
in the amount of $ 250,000.                                    estimates. Heine, 835 S.W.2d at 84.

HN10 Texas law provides that in order to recover actual        Here, Griffith's affidavit fails to provide a factfinder with
damages for loss of credit reputation, a plaintiff must        sufficient data to determine her lost profits with
first show that a loan was actually denied or a higher         reasonable certainty. Her "bare assertion" that she
interest rate [*278] charged. St. Paul Surplus Lines Ins.      expected to make $ 35,000 in profit for the next five
Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53, 41 Tex.          years because she made $ 35,000 in profit for the past
Sup. Ct. J. 1357 (Tex. 1998). Here, Griffith failed to         eight years does not demonstrate a reasonably certain
allege any such fact. Again, "there can be no recovery         objective determination of lost profits. See Heine, 835
for damages which are speculative or conjectural."             S.W.2d at 85 HN12 ("The bare assertion that contracts
Roberts, 694 S.W.2d at 135. Accordingly, we hold that          were lost does not demonstrate a reasonably certain
the evidence of damage to credit reputation is legally         objective determination of lost profits."). In fact, though
insufficient to support an award of damages.                   she attributes her financial woes to "seasonal
                                                               difficulties," the fact that she could not pay her rent
c. Lost Profits                                                undermines that conclusion. We hold that the evidence
                                                               of lost profits is legally insufficient to support an award
The Leftons also argue that Griffith's testimony               of damages.
regarding lost profits is incompetent. Griffith's affidavit
provides:                                                      2. Mental Anguish

Because I was forced to sell my entire inventory to a          The trial court awarded Griffith $ 290,000 in mental
competitor for a fraction of its value, I [had] insufficient   anguish damages. The Leftons argue [**16] that
cash to pay my suppliers and other creditors, ruining my       Griffith's affidavit does not support such an award.
valuable trade relationships. Therefore, [**14] as a           Griffith's affidavit provides:
result of Defendants' actions, Discount Furniture
Warehouse went out of business permanently. I have             As a result of Defendants' actions, I had irate customers
been in business for eight (8) years and probably would        calling my home and coming by my house at all hours of
                                                                                                              Page 7 of 9
                              136 S.W.3d 271, *278; 2004 Tex. App. LEXIS 2812, **16



the day and night. I suffered severe emotional distress       Thus, Griffith must show: (1) that she suffered a high
and mental anguish as a result of numerous encounters         degree of mental pain and distress; and (2) that $
with angry, frustrated customers whom I was unable to         290,000 is a fair and reasonable amount for the mental
help. As a result of Defendants' intentionally cruel          anguish she suffered. Here, Griffith's testimony that she
actions, I was unable to sleep, was depressed, and            "was unable to sleep, was depressed, and suffered
suffered [*279] from anxiety. Because I believe that the      from anxiety" fails to establish either. Griffith's distress,
emotional injury I suffered was just as devastating as        while understandable, "does not rise to the level of
the loss of my business inventory, I believe that my          compensable mental anguish" as defined by Texas law.
damages for emotional and mental anguish also equal           Id. Additionally, there is no evidence that $ 290,000 "is
$ 290,000.                                                    fair and reasonable compensation" for the amount she
                                                              suffered. Id. Accordingly, we hold that the evidence of
HN13 Mental anguish damages are appropriate when              mental anguish is legally insufficient to support an award
there is either "direct evidence of the nature, duration,     of damages.
and severity of [plaintiffs'] mental anguish, thus
establishing a substantial disruption in the plaintiffs'      3. Attorney Fees
daily routine," or other evidence of "a high degree of        The trial court awarded Griffith $ 2,000 in attorney fees.
mental pain and distress" that is "more than mere worry,      On appeal, the Leftons argue that there is insufficient
anxiety, vexation, or anger." Saenz v. Fid. & Guar. Ins.      evidence of attorney fees because the only reference to
Underwriters, 925 S.W.2d 607, 614, 39 Tex. Sup. Ct. J.        attorney fees in the record is unsworn statements by
743 (Tex. 1996) (citing Parkway Co. v. Woodruff, 901          counsel during the hearing. The Leftons fail, however,
S.W.2d 434, 444, 38 Tex. Sup. Ct. J. 828 (Tex. 1995)).        to cite authority for this proposition. [**19] TEX. R. APP.
 [**17] Here, Griffith does not establish the duration of     P. 38.1(h). Additionally, the Texas Civil Practices and
her anguish. It is not clear how long she "was unable to      Remedies Code provides: HN15 "The court may take
sleep, was depressed, and suffered from anxiety."             judicial notice of the usual and customary attorney's
                                                              fees and of the contents of the case file without receiving
Because Griffith does not establish "the nature, duration,    further evidence in a proceeding before the court." TEX.
and severity of mental anguish," she must show other          CIV. PRAC. & REM. CODE § 38.004(1) (Vernon 1997).
evidence of "a high degree of mental pain and distress."      Moreover, HN16 "even if the trial court did not state that
Parkway, 901 S.W.2d at 444. Additionally, "the absence        it was taking such judicial notice, [the appellate [*280]
of [evidence of the nature, duration, and severity of         court] may presume that the trial court did so." Inwood
mental anguish], particularly when it can be readily          Dad's Club, Inc. v. Aldine Indep. Sch. Dist., 882 S.W.2d
supplied or procured by the plaintiff, justifies close        532, 542 (Tex. App.--Houston [1st Dist.] 1994, no writ).
judicial scrutiny of other evidence offered on this element   Here, the proceeding was before the court. Additionally,
of damages." Id.                                              although the trial court did not state that it was taking
                                                              judicial notice, we may presume that it did. Id.
HN14 Texas law also provides:
                                                              Accordingly, we hold that the evidence of attorney fees
Not only must there be evidence of the existence of           is legally and factually sufficient to support the award.
compensable mental anguish, there must also be some
evidence to justify the amount awarded. . . . While the       II. Return of Service
impossibility of any exact evaluation of mental anguish       The Leftons argue that the default judgment as to David
requires that juries be given a measure of discretion in      Lefton must be set aside because "although the return
finding damages, that discretion is limited. Juries cannot    [of service] bears a file stamp indicating that it was filed
simply pick a number and put it in the blank. They must       on November 14, 2002, the file stamp has not been
find an amount that, in the standard language of the jury      [**20] signed by a representative of the District Clerk's
charge, "would fairly and reasonably compensate" for          Office." The Leftons fail to cite, however, any case law
the loss. . . . Reasonable compensation [**18] is no          for the proposition that a file stamp is not valid if it is not
easier to determine than reasonable behavior--often it        signed by a representative of the district clerk's office.
may be harder--but the law requires factfinders to            Accordingly, the Leftons failed to properly brief this
determine both.                                               issue. TEX. R. APP. P. 38.1(h).
                                                              Additionally, their argument is without merit. Here, the
Saenz, 925 S.W.2d at 614.                                     stamp shows that David Lefton was served on
                                                                                                           Page 8 of 9
                                 136 S.W.3d 271, *280; 2004 Tex. App. LEXIS 2812, **20



November 14, 2002. The default judgment was granted                Heine, 835 S.W.2d at 86 (holding that HN18 when
November 25, 2002. Accordingly, the return of service              damages awarded in a default judgment after an
was on file for ten days before the default judgment was           uncontested hearing are supported by either legally or
granted. See TEX. R. CIV. P. 107 HN17 ("No default                 factually insufficient evidence, we must remand the
judgment shall be granted in any cause until the citation          case for a new trial on those damage issues); Jackson
. . . with proof of service as provided by this rule . . . shall   v. Gutierrez, 77 S.W.3d 898, 904 (Tex. App.--Houston
have been on file with the clerk of the court ten days,            [14th Dist.] 2002, no pet.) (reversing and remanding the
exclusive of the day of filing and the day of judgment.").         trial court's awards for medical expenses, mental
Because the Leftons provide no authority for their                 anguish, pain and suffering, and automobile repair, and
argument, and because the return of service was on file            affirming the award for lost wages).
for ten days before the default judgment was granted,
we overrule this issue on appeal.                                  Because there is insufficient evidence to support an
                                                                   award of damages for Griffith's mental anguish, we
CONCLUSION                                                         reverse the trial court's award for mental anguish and
                                                                   remand the cause for a new trial on mental anguish
Because there is insufficient evidence to support an               damages. See Heine, 835 S.W.2d at 86.
award of damages for Griffith's loss from the sale of her
 [**21] inventory, loss from the sale of her home, lost            We affirm the trial court's award for attorney fees.
profits, and damage to credit reputation, we reverse the
trial court's award for economic damages and remand                Karen Angelini, Justice
this cause for a new trial on economic damages. See




                                                                                                                Page 9 of 9
                                                                                                                 Page 1




Caution
As of: Mar 30, 2015

                   DOUGLAS LEHMANN AND VIRGINIA LEHMANN, PETITIONERS v.
                HAR-CON CORPORATION, RESPONDENT; MELVIN G. HARRIS AND HEL-
                  ENA M. HARRIS, PETITIONERS v. HARBOUR TITLE COMPANY, RE-
                                          SPONDENT

                                   NO. 99-0406 - consolidated with - NO. 99-0461

                                          SUPREME COURT OF TEXAS

                               39 S.W.3d 191; 2001 Tex. LEXIS 6; 44 Tex. Sup. J. 364

                                             January 26, 2000, Argued
                                            February 1, 2001, Delivered

NOTICE:                                                     dered and not cases, like some probate and receivership
                                                            proceedings, in which multiple judgments final for pur-
     [**1]
                                                            poses of appeal can be rendered on certain discrete is-
                                                            sues. 1 And we consider a judgment's finality only for
PRIOR HISTORY:     ON PETITIONS FOR RE-
                                                            purposes of appeal and not for other purposes, such as
VIEW FROM THE COURT OF APPEALS FOR THE
                                                            issue and claim preclusion. 2 In Mafrige v. Ross, 3 we
FOURTEENTH DISTRICT OF TEXAS.
                                                            held that a summary judgment [**2] is final if it con-
                                                            tains language purporting to dispose of all claims and
DISPOSITION:          Judgments reversed, cases remand-
                                                            parties. We gave as one example of such language what
ed.
                                                            we have called a "Mother Hubbard" clause 4 -- a recita-
                                                            tion that all relief not expressly granted is denied. 5 Since
                                                            then, the routine inclusion of this general statement in
JUDGES: JUSTICE HECHT delivered the opinion of
                                                            otherwise plainly interlocutory orders and its ambiguity
the Court, in which CHIEF JUSTICE PHILLIPS, JUS-
                                                            in many contexts have rendered it inapt for determining
TICE OWEN, JUSTICE ABBOTT, and JUSTICE
                                                            finality when there has not been a conventional trial. We
O'NEILL joined. JUSTICE BAKER filed a concurring
                                                            no longer believe that a Mother Hubbard clause in an
opinion in which JUSTICE ENOCH joined, except for
                                                            order or in a judgment issued without a full trial can be
Part IV and the discussion of Inglish and Bandera, and in
                                                            taken to indicate finality. We therefore hold that in cases
which JUSTICE HANKINSON joined, except for Part
                                                            in which only one final and appealable judgment can be
IV.
                                                            rendered, a judgment issued without a conventional trial
                                                            is final for purposes of appeal if and only if either it ac-
OPINION BY: Nathan L. Hecht
                                                            tually disposes of all claims and parties then before the
                                                            court, regardless of its language, or it states with unmis-
OPINION
                                                            takable clarity that it is a final judgment [*193] as to
      [*192] In these two consolidated cases we revisit     all claims and all parties. In the two cases before us, the
the persistent problem of determining when a judgment       court of appeals concluded that judgments that do not
rendered without a conventional trial on the merits is      meet this test were final and dismissed the appeals as
final for purposes of appeal. We consider only cases in     having been untimely perfected. 6 We reverse and [**3]
which one final and appealable judgment can be ren-         remand for consideration of the merits of the appeals.
                                                                                                                  Page 2
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

                                                                   All relief not expressly granted herein is denied.
        1 See Crowson v. Wakeham, 897 S.W.2d 779,
                                                                   Signed this the 12 day of March, 1998
        783 (Tex. 1995) (involving probate proceedings);
        Huston v. Federal Deposit Ins. Corp., 800 S.W.2d           s/
        845, 847 (Tex. 1990) (involving receivership
                                                                   JUDGE PRESIDING
        proceedings).
        2 See Street v. Second Court of Appeals, 756               [s/ Attorneys for Har-Con Corporation]
        S.W.2d 299, 301 (Tex. 1988).
        3 866 S.W.2d 590 (Tex. 1993).                               The order did not reference Virginia's claims on be-
        4    Teer v. Duddlesten, 664 S.W.2d 702, 704           half of her son against Har-Con, although it would ap-
        (Tex. 1984).                                           pear that Har-Con's summary judgment on its indemnity
        5 Mafrige, 866 S.W.2d 590 n.1.                         claim would effectively bar recovery for Virginia's son.
        6 Lehmann v. Har-Con-Corp.,           S.W.2d    ,      The order also did not reference Virginia's son's claims
        1998 Tex. App. LEXIS 4657 (Tex. App.--Houston          against the University, which would not appear to be
        [14th Dist.] 1998), 988 S.W.2d 415 (1999) (op.         affected by Har-Con's summary judgment. The order
        on reh'g); Harris v. Harbour Title Co.,                contained a "Mother Hubbard" clause stating that "all
        S.W.2d      , 1999 Tex. App. LEXIS 2708 (Tex.          relief not expressly granted herein is denied."
        App.--Houston [14th Dist.] 1999).                           The district clerk advised the Lehmanns by postcard
    I                                                          that an interlocutory summary judgment order had is-
                                                               sued. The record does not reflect whether the parties re-
    Lehmann v. Har-Con Corp.                                   ceived a copy of the actual order after it was signed. The
                                                               Lehmanns tell us that the practice of the district clerk in
     Douglas and Virginia Lehmann sued the University
of St. Thomas and Har-Con Corp. in the district court in       Harris County is not to send copies of orders to the par-
Harris County to recover damages for injuries Douglas          ties but to give parties notice by postcard when orders
                                                               are signed. The notice does not completely describe the
suffered in a construction [**4] accident. The Univer-
                                                               content of the order.
sity cross-claimed against Har-Con for indemnity. The
Lehmanns settled with Har-Con and executed a release,               The Lehmanns [**6] appear to have believed that
agreeing in part to indemnify Har-Con against certain          the summary judgment order was interlocutory because
claims which had been or could be asserted by or               they moved to sever it and Har-Con's claims into a sepa-
through them. Virginia then filed an amended petition on       rate action, ostensibly to make the summary judgment
behalf of her minor son against both defendants, claim-        final. The court granted the motion to sever on the twen-
ing damages for loss of parental consortium because of         ty-fifth day after the summary judgment order was
his father's injuries. In response, Har-Con filed a coun-      signed. Twenty-eight days after the severance [*194]
terclaim against Virginia and a third-party petition           order was signed, the Lehmanns noticed their appeal
against Douglas, seeking indemnity from them under the         from the summary judgment order.
terms of their prior release.
                                                                    If the summary judgment was not final until the
    The Lehmanns and Har-Con all moved for summary             severance order was signed, then the Lehmanns' appeal
judgment on Har-Con's indemnity claims. The district           was timely. But the court of appeals held that the sum-
court denied the Lehmanns' motion and granted                  mary judgment order was final when it issued because of
Har-Con's motion. The court's order granting Har-Con's         the Mother Hubbard clause and that the order was not
motion stated in full:                                         modified by the severance so as to restart the time for
                                                               perfecting appeal. 7 Because the Lehmanns did not per-
    [caption]
                                                               fect appeal within thirty days of the signing of the order
    ORDER                                                      as prescribed by the rules of appellate procedure, 8 the
                                                               court dismissed the appeal for want of jurisdiction. In
     On this 12 day of March, 1998 came on to be con-
                                                               holding that the summary judgment order was final, the
sidered the Motion for Summary Judgment of
                                                               court followed our decision in Mafrige, although the
HAR-CON CORPORATION. After considering the mo-
                                                               court expressed concerns that the inclusion of a Mother
tion, the response, the summary judgment evidence and
                                                               Hubbard clause in an otherwise plainly interlocutory
the argument of counsel, the Court is of the opinion that
                                                               order [**7] should not make the order final.
the motion should be in all things granted. It is therefore,
   ORDERED, ADJUDGED AND DECREED that the                               7      S.W.2d     , 1998 Tex. App. LEXIS 4657;
Motion [**5] for Summary Judgment by HAR-CON                            988 S.W.2d 415 (op. on reh'g).
CORPORATION be and it is hereby GRANTED.
                                                                                                                   Page 3
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

         8 See TEX. R. APP. P. 26.1 (appellate time            that "all relief requested and not herein granted is de-
         limits).                                              nied."
    We granted the Lehmanns' petition for review and                The Harrises assert that they received notice of the
consolidated it for argument and decision with Harris v.       order by a postcard that described the order as an inter-
Harbour Title Co. 9                                            locutory summary judgment, but the postcard is not in
                                                               our record. The record does not reflect whether the par-
         9   43 Tex. Sup. J. 94, 96 (Nov. 12, 1999).           ties obtained a copy of the order after it was signed. It
                                                               appears that the district clerk followed her usual proce-
Harris v. Harbour Title Co.                                    dure of notifying the parties by [*195] postcard in lieu
                                                               of providing copies of the order.
     Melvin and Helena Harris sued five defendants --
Greenfield Financial Corp. and Larry J. Greenfield ("the            The district court apparently did not consider the
Greenfield defendants), Tim Rice and Rice Develop-             summary judgment order to be final; forty- six days after
ment, Inc. ("the Rice defendants"), and Harbour Title Co.      it was signed, the court generated a form order setting the
-- in the district court in Harris County on                   case for trial the next year. The Harrises, too, appear to
breach-of-contract and tort claims arising from a con-         have believed the summary judgment to be interlocutory;
veyance of real property. The court granted an interlocu-      two weeks after the order issued setting the case for trial,
tory default judgment against Tim Rice on liability only,      the Harrises obtained what was captioned a "Final De-
leaving for later a determination of the [**8] damages         fault Judgment" against the Rice defendants. Twen-
to be assessed against him. The Harrises nonsuited their       ty-five days later the Harrises noticed their appeal from
claims against the Greenfield defendants. The fifth de-        Harbour Title's summary judgment.
fendant, Harbour Title Co., moved for summary judg-
                                                                    If Harbour Title's summary judgment did not dis-
ment, which the court granted with the following order:
                                                               pose of the Harrises' claims against the Rice defendants,
    [caption]                                                  and the [**10] default judgment against those defend-
                                                               ants was the final order in the case, then the Harrises'
    Order Granting Harbour Title Company's
                                                               appeal was timely. But following Mafrige, as it had done
    Motion for Summary Judgment                                in Lehmann, the court of appeals concluded that the
                                                               summary judgment order was final and therefore dis-
     On August 28, 1998, came on to be heard the Mo-           missed the appeal as not having been timely perfected.
tion for Summary Judgment of one of the defendants,
                                                               We granted the Harrises' petition for review and consol-
Harbour Title Company, and the Court having consid-
                                                               idated it with Lehmann for argument and decision. 10
ered the Motion, together with any response, and the
supplemental briefing filed by the parties to date is of the
                                                                        10   43 Tex. Sup. J. 94, 96 (Nov. 12, 1999).
opinion that said Motion is with merit and should be
granted. It is therefore
                                                               II
     ORDERED that defendant Harbour Title Company's
                                                                    A
Motion for Summary Judgment is in all things granted; it
is further                                                           Though its origins are obscure and its rationale has
                                                               varied over time, 11 the general rule, with a few mostly
    ORDERED that the Plaintiffs, Melvin G. Harris and
                                                               statutory exceptions, is that an appeal may be taken only
Helena M. Harris take nothing as to any of their claims        from a final judgment. 12 A judgment is final for purposes
against Harbour Title Company.                                 of appeal if it disposes of all pending parties and claims
    All relief requested and not herein granted is denied.     in the record, except as necessary to carry out the decree.
                                                               13
                                                                  (An order that does not dispose of all pending parties
    SIGNED this 15 day of October 1998.                        and claims may also be final for purposes of appeal in
    s/                                                         some instances, such as orders that resolve certain dis-
                                                               crete [**11] issues in some probate 14 and receiverships
    JUDGE PRESIDING                                            15
                                                                  cases, but we exclude those cases from consideration
    APPROVED AND ENTRY REQUESTED:                              here. Nor do we consider when a judgment may be final
                                                               for purposes other than appeal, such as claim and issue
    [s/ Attorneys for Harbour Title Company]                   preclusion. 16 ) Because the law does not require that a
    Although the order did not reference the Harrises'         final judgment be in any particular form, whether a judi-
pending claims against the Rice [**9] defendants, it           cial decree is a final judgment must be determined from
nevertheless contained a Mother Hubbard clause stating         its language and the record in the case. Since timely per-
                                                               fecting appeal (as well as filing certain post- judgment
                                                                                                                   Page 4
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

motions and requests) hangs on a party's making this               In 1881, after struggling with these problems for
determination correctly, certainty is crucial.                many years, 17 we attempted to resolve them in the case
                                                              of Linn v. Arambould. 18 There we stated that a final
       11      See CHARLES ALAN WRIGHT, AR-                   judgment after trial must dispose of the issues "intrinsi-
       THUR R. MILLER, & EDWARD H. COOPER,                    cally, and not inferentially." 19 That is, specificity was
       FEDERAL PRACTICE & PROCEDURE §§                        strictly required. The results of this rule were predictable.
       3906-3907 (1992).                                      Appellate courts frequently declared shabbily drafted
       12 See, e.g., North East Indep. Sch. Dist. v. Al-      judgments interlocutory even though the trial courts and
       dridge, 400 S.W.2d 893, 895 (Tex. 1966); Gulf C.       the parties had obviously intended for them to [**14]
       & S.F. Ry. v. Fort Worth & N.O. Ry., 68 Tex. 98,       be final. 20 Confused parties were spending time and
       2 S.W. 199, 200 (Tex. 1886), op. on reh'g, 68 Tex.     money attempting to appeal from possibly final judg-
       106, 3 S.W. 564 (1887); see TEX. CONST. art. V,        ments, only to have the appellate courts dismiss the ap-
       § 3-b (direct appeals to the Supreme Court); TEX.      peals for want of jurisdiction. 21 As this Court later re-
       CIV. PRAC. & REM. CODE §§ 15.003(c) (inter-            flected on Arambould's intrinsic-disposition requirement
       locutory joinder and intervention appeals), 51.012     for finality:
       (court of appeals jurisdiction), 51.014 (interlocu-
                                                                   By its application most judgments easily became
       tory appeals); TEX. GOV'T CODE §§ 22.001(c)
                                                              black or white -- final or interlocutory; but all too often
       (direct appeals), 22.225(d) (interlocutory appeal
                                                              judgments which were obviously intended to be final
       to the Supreme Court).
                                                              were being held interlocutory because of careless
 [**12]
                                                              draftsmanship. The rule had to be changed to accommo-
       13      See Jack B. Anglin Co., v. Tipps, 842
                                                              date oversight or carelessness. 22
       S.W.2d 266, 272 (Tex. 1992); Linn v. Arambould,
       55 Tex. 611, 617-18 (1881) (surveying several
                                                                     17 See Hanks v. Thompson, 5 Tex. 6, 8 (1849)
       tests for determining when a judgment is final).
                                                                     (defining a final judgment as awarding the judi-
       See generally 49 C.J.S. Judgments § 11 (1947);
                                                                     cial consequences which the law attaches to the
       46 AM. JUR. 2D Judgments § 200-206 (1994).
                                                                     facts and determining the subject matter of the
       14 Crowson v. Wakeham, 897 S.W.2d 779, 783
                                                                     controversy between the parties); accord West v.
       (Tex. 1995).
                                                                     Bagby, 12 Tex. 34 (1854). See also Fitzgerald v.
       15 Huston v. Federal Deposit Ins. Corp., 800
                                                                     Fitzgerald, 21 Tex. 415 (1858); Hancock v. Metz,
       S.W.2d 845, 847 (Tex. 1990).
                                                                     7 Tex. 177 (1851) (both holding that a judgment
       16 See Street v. Second Court of Appeals, 756
                                                                     for the defendant for costs did not constitute a fi-
       S.W.2d 299, 301 (Tex. 1988).
                                                                     nal judgment); Warren v. Shuman, 5 Tex. 441,
     From the beginning, however, certainty in deter-                450 (Tex. 1849) (finding that a judgment that
mining whether a judgment is final has proved elusive.               awards costs without disposing of the subject
What has vexed courts in this State and elsewhere is this:           matter of the controversy is not a final judgment).
must a final judgment dispose of all parties and claims              See generally 31 JEREMY C. WICKER, TEXAS
specifically, or may it do so by general language or even            PRACTICE, CIVIL TRIAL & APPELLATE
by inference? If a specific disposition of each party and            PROCEDURE § 506, at 289-311 (1985) (chroni-
[*196] claim is strictly required, a judgment apparently             cling, in depth, the challenges of distinguishing
intended by the parties and the trial court to be final and          between final and interlocutory judgments in
appealable may not be. An appeal from such a judgment                various contexts beginning in the mid-19th cen-
must be dismissed [**13] or at least abated, resulting in            tury).
delay and a waste of the courts' and the parties' re-          [**15]
sources. More importantly, if a judgment intended to be              18 55 Tex. 611 (1881).
final did not meet the strict requirements, then the case            19 Id. at 619.
would remain open, allowing the possibility of further               20 See Aldridge, 400 S.W.2d at 895.
proceedings and appeal years later. On the other hand, if            21 See, e.g., East & West Tex. Lumber Co. v.
a judgment may dispose of all parties and claims by gen-             Williams, 71 Tex. 444, 9 S.W. 436 (Tex. 1888);
eral language or inference, a party or trial court may               Hill v. Templeton, 25 S.W. 652 (Tex. Civ. App.
think that a judgment is interlocutory, only to be told              1894); Mills v. Paul, 4 Tex. Civ. App. 503, 23
later by the appellate court after the time for appeal has           S.W. 395 (Tex. Civ. App. 1893).
passed that the judgment was final. A party who is un-               22 Aldridge, 400 S.W.2d at 895.
certain whether a judgment is final must err on the side
                                                                  In 1896 we altered course. In Rackley v. Fowlkes, 23
of appealing or risk losing the right to appeal.
                                                              the plaintiff had, in a prior suit, sued for title to real
                                                                                                                     Page 5
                                         39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                   44 Tex. Sup. J. 364

property and for rent for the four years the property was       volving cross-claims and counterclaims. Some courts
in the defendant's possession, but at trial he offered no       treated judgments that merely implicitly disposed of all
evidence of the amount of rent due until after the evi-         claims as final, while other courts required that final
dence was closed, and because the offer was late the            judgments expressly adjudicate each claim. 27 In 1913,
court refused to hear it. The court in that suit rendered       the Court resolved the conflict in Trammell v. Rosen, 28
judgment awarding title to the plaintiff without mention-       rejecting the rule stated in Arambould. The plaintiff in
ing his claim for rent. When the plaintiff filed a second       Trammell sued on a promissory note secured by property
suit for the rent, the defendant asserted res judicata in       that the defendant and his wife claimed was their home-
defense. The trial court rendered judgment for the plain-       stead. The couple counterclaimed to establish their
tiff, concluding [**16] that the rent claim had not been        homestead claim and for damages for wrongful seques-
adjudicated in the prior suit, and the court of civil ap-       tration. The trial court instructed a verdict for the plain-
peals affirmed. We reversed the judgments of the lower          tiff on his claim and against the defendants on their
courts, not because the rent claim should have been ad-         counterclaim. The judgment recited the verdict and
judicated [*197] in the first suit, but because it was          awarded damages to the plaintiff but did not mention the
adjudicated:                                                    counterclaim. 29 Citing Rackley, the Court concluded that
                                                                the judgment was final, reasoning that by granting the
    The proposition seems to be sound in principle and
                                                                plaintiff's claim the trial court implicitly but necessarily
well supported by authority that where the pleadings and
                                                                denied the defendants' counterclaim. 30 Still, the Court
judgment in evidence show that the pleadings upon
                                                                strongly encouraged courts to expressly address each
which the trial was had put in issue plaintiff's right to
                                                                claim and party in final judgments to avoid further con-
recover upon two causes of action, and the judgment
                                                                fusion: [**19]
awards him a recovery upon one, but is silent as to the
other, such judgment is prima facie an adjudication that             We feel constrained to hold that the judgment of the
he was not entitled to recover upon such other cause.           trial court, although irregular and imperfect in form, is
This liberal construction of the judgment against the           sufficient to support the appeal. However, we feel im-
party who sought to recover therein is supported by the         pelled to say, also, that we think that, as a matter of prac-
presumption that the court performed the duty devolved          tice, and to avoid confusion, every final judgment should
upon it upon the submission of the cause by disposing of        plainly, explicitly, and specifically dispose of each and
every issue presented by the pleadings so as to render its      every party to the cause, and of each and every issue
judgment final and conclusive of the litigation, and by         therein presented by the pleadings. 31
the further fact that the policy of the law favors the
speedy settlement of litigation and opposes the harassing              27 See Trammell v. Rosen, 106 Tex. 132, 157
of the defendant with two suits for the same cause.                    S.W. 1161, 1162 (Tex. 1913) (listing the various
[**17] 24                                                              appellate courts subscribing to each school of
                                                                       construction).
       23 89 Tex. 613, 36 S.W. 77, 78 (Tex. 1896).                     28 Id.
       24 Rackley, 36 S.W. 77 at 78 (citations omit-                   29 Trammell, 157 S.W. at 1161.
       ted).                                                           30 Trammell, 157 S.W. at 1161-1163.
                                                                       31 Trammell, 157 S.W. at 1163. See also Bur-
     Three years later we used the rule stated for purpos-
                                                                       ton Lingo Co. v. First Baptist Church, 222 S.W.
es of res judicata in Rackley to determine whether a
                                                                       203, 204 (Tex. Comm'n App. 1920, holding ap-
judgment was final for purposes of appeal. In Davies v.
                                                                       proved) (citing Trammell for support of its pre-
Thomson, 25 the plaintiffs sued for money and an interest
                                                                       sumption that the judgment disposed of a claim).
in real property as their share of a joint venture. The trial
court rendered judgment on a jury verdict awarding the                [*198] Two cases decided after Trammell suggest
plaintiffs money without mentioning the claim for an            that the entire record should be considered in determin-
interest in real property. We held that the judgment dis-       ing [**20] whether a post-trial judgment is final. In
posed of both claims was therefore final and appealable.        Hargrove v. Insurance Investment Corp., we held that a
26
                                                                judgment for the plaintiff was final when "considered as
                                                                a whole in the light of the entire record". 32 Similarly, in
       25    92 Tex. 391, 49 S.W. 215 (Tex. 1899).              Ferguson v. Ferguson, we held that a judgment awarding
       26    Davies, 92 Tex. 391, 49 S.W. 215 at 217.           the plaintiff recovery on some of her claims while silent
     Neither Rackley nor Davies mentioned Arambould             as to others was final, stating that "in arriving at whether
or attempted to reconcile their results with the rule in that   or not a judgment is final, the pleadings and evidence
case, thereby generating [**18] confusion in the appel-         must also be taken into consideration". 33 Neither case
late courts over how to determine finality in cases in-         should be read to deviate from the presumptive rule of
                                                                                                                   Page 6
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

Trammell. We did not hold in either case that the record       We added: "Of course, the problem [of determining
could be used to show that a post-trial judgment final on      whether judgments are final] can be eliminated entirely
its face was really not final. In two other cases during the   by a careful drafting of judgments [**23] to conform to
same time period we did not mention the record in ap-          the pleadings or by inclusion in judgments of a simple
plying Trammell. 34                                            statement that all relief not expressly granted is denied."
                                                               38
                                                                  Inclusion of a catch-all statement -- which we later
       32 142 Tex. 111, 176 S.W.2d 744, 746 (Tex.              denominated a "Mother Hubbard" clause 39 -- would
       1944).                                                  make clear that a post-trial judgment on the merits, pre-
       33 161 Tex. 184, 338 S.W.2d 945, 947 (Tex.              sumed to have disposed of all claims, did indeed do so.
       1960).
       34     Gamble v. Banneyer, 137 Tex. 7, 151                     38 Id. at 898.
       S.W.2d 586 (Tex. 1941); Vance v. Wilson, 382                   39 Teer v. Duddlesten, 664 S.W.2d 702, 704
       S.W.2d 107 (Tex. 1964) (res judicata).                         (Tex. 1984).
       [**21] In 1966, we reaffirmed Rackley, Davies,               [*199] B
and Trammell in Northeast Independent School District
                                                                     The presumption that a judgment rendered after a
v. Aldridge. 35 The school district sued Aldridge for
                                                               conventional trial on the merits is final and appealable
breach of contract, and he asserted in his defense that he
                                                               has proved fairly workable for nearly a century, but we
had contracted only as an agent for his principal. He also
                                                               have never thought that it could be applied in other cir-
brought a third-party action against his principal, alleg-
                                                               cumstances, as we first explained nearly sixty years ago.
ing that the principal was responsible for any damages to
                                                               In Davis v. McCray Refrigerator Sales Corp., 40 the
which the school district might be entitled. The trial
                                                               plaintiff sued for the unpaid balance of the purchase
court granted a partial summary judgment holding Al-
                                                               price of a refrigerator, and the defendant counterclaimed
dridge personally liable to the district and directed that
                                                               for cancellation of the debt and for damages for pay-
the case proceed to trial to determine the amount of
                                                               ments already made and lost merchandise due to im-
damages to be awarded. The parties then stipulated to the
                                                               proper refrigeration. [**24] The defendant also filed a
amount of damages, and the trial court rendered judg-
                                                               plea in abatement on the grounds that the plaintiff was a
ment for the district against Aldridge based on the stipu-
                                                               foreign corporation not licensed to do business in Texas
lation. The judgment did not mention Aldridge's
                                                               and therefore not entitled to sue in state court. The trial
third-party action against his principal. The court of civil
                                                               court deferred ruling on the defendant's plea until after
appeals dismissed Aldridge's appeal, holding that the
                                                               the case was tried on the merits. After the jury returned a
trial court's judgment was not final. 36 We held that the
                                                               verdict, the trial court rendered judgment both that the
judgment against Aldridge disposed of the third-party
                                                               plaintiff's claim be dismissed and that the plaintiff take
action and was final for purposes of appeal. After re-
                                                               nothing. 41 The only basis the trial court had for dismissal
viewing the courts' historical difficulties in making final-
                                                               was the defendant's plea in abatement, while the only
ity determinations, we stated [**22] the following rule
                                                               basis for rendering a take-nothing judgment was plain-
for determining, in most instances, whether judgments in
                                                               tiff's failure of proof at trial. The judgment did not men-
which parties and issues made by the pleadings are not
                                                               tion the defendant's counterclaim. The court of civil ap-
disposed of in express language are, nevertheless, final
                                                               peals rejected the defendant's argument that the judgment
for appeal purposes. When a judgment, not intrinsically
                                                               was interlocutory and reversed and rendered judgment
interlocutory in character, is rendered and entered in a
                                                               for the plaintiff. 42 This Court reversed and dismissed the
case regularly set for conventional trial on the merits, no
                                                               appeal. Citing Trammell, the Court acknowledged that
order for a separate trial of issues having been entered . .
                                                               while a final judgment need not expressly dispose of
., it will be presumed for appeal purposes that the Court
                                                               each issue so long as other provisions of the judgment
intended to, and did, dispose of all parties legally before
                                                               necessarily imply that the unmentioned issues have been
it and of all issues made by the pleadings between such
                                                               disposed of, a dismissal of the plaintiff's suit did not
parties. 37
                                                               necessarily imply a disposal of [**25] the defendant's
                                                               cross-action. 43 The Court explained:
       35 400 S.W.2d 893 (Tex. 1966).
       36 Aldridge v. Northeast Indep. Sch. Dist., 392              If the court had intended to merely sustain the plea
       S.W.2d 607 (Tex. Civ. App.--San Antonio 1965),          in abatement and dismiss plaintiff's suit, and had intend-
       rev'd and remanded, 400 S.W.2d 893 (Tex. 1966).         ed to retain the defendant's cross-action for further con-
       37 400 S.W.2d at 897-898.                               sideration, it would have entered the very judgment that
                                                               was entered in this case. The mere failure of the judg-
                                                               ment to refer to defendant's cross-action was not suffi-
                                                                                                                    Page 7
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

cient in itself to raise an inference that it was thereby      interlocutory merely because it recites that it is partial or
intended to dispose of the cross-action. 44                    refers to only some of the parties or claims. Thus, if a
                                                               court has dismissed all of the claims in a case but one,
       40 136 Tex. 296, 150 S.W.2d 377 (Tex. 1941).            [**28] an order determining the last claim is final. 48
       41 McCray Refrigerator Sales Corp. v. Davis,            This is settled law in Texas, and while there have been
       140 S.W.2d 477, 478 (Tex. Civ. App.--Fort Worth         proposals to change it by rule, proposals that are cur-
       1940), rev'd, 136 Tex. 296, 150 S.W.2d 377 (Tex.        rently pending consideration by this Court's Advisory
       1941).                                                  Committee, we are not inclined to depart from it here.
       42 Id.                                                  The language of an order or judgment cannot make it
       43 150 S.W.2d at 378.                                   interlocutory when, in fact, on the record, it is a final
       44 Id.                                                  disposition of the case.
     Although the judgment did not "merely" sustain the
                                                                      47 Farmer v. Ben E. Keith Co., 907 S.W.2d
plea in abatement but also decreed that the plaintiff take
                                                                      495, 496 (Tex. 1995) (per curiam); H. B. Zachry
nothing, the inclusion of the dismissal in the judgment as
                                                                      Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.
the first basis for decision was enough to make [**26]
                                                                      1963) (per curiam); McEwen v. Harrison, 162
Trammell's presumptive finality rule inapplicable.
                                                                      Tex. 125, 345 S.W.2d 706, 707 (Tex. 1961).
     Davis may have departed too far from Trammell.                   48 Farmer, 907 S.W.2d at 496; H. B. Zachry
The trial court's decree following a jury trial on the mer-           Co., 364 S.W.2d at 193; McEwen, 345 S.W.2d at
its that the plaintiff take nothing without mention of the            707.
defendant's counterclaim should perhaps have been pre-
                                                                     But the language of an order or judgment can make
sumed to deny all relief, despite the alternative ruling
                                                               it final, even though it should have been interlocutory, if
that the plaintiff's claim should be dismissed. But re-
                                                               that language expressly disposes of all claims and all
gardless of Davis's unusual circumstances, the case
                                                               parties. It is not enough, [**29] of course, that the
makes the point, which we expressly acknowledged in
                                                               order or judgment merely use the word "final". The in-
Aldridge, that "it will not be presumed that a judgment
                                                               tent to finally dispose of the case must be unequivocally
dismissing a plaintiff's suit on nonsuit, plea to the juris-
                                                               expressed in the words of the order itself. But if that in-
diction, plea in abatement, for want of prosecution, etc.,
                                                               tent is clear from the order, then the order is final and
also disposed of the issues in an independent
                                                               appealable, even though the record does not provide an
cross-action." 45
                                                               adequate basis for rendition of judgment. So, for exam-
                                                               ple, if a defendant moves for summary judgment on only
       45    Aldridge, 400 S.W.2d at 897.
                                                               one of four claims asserted by the plaintiff, but the trial
     We have since held that "etc." includes default           court renders judgment that the plaintiff take nothing on
judgments and summary judgments. 46 The reason for not         all claims asserted, the judgment is final -- erroneous, but
applying a presumption in any of these circumstances           final. 49 A judgment that grants more relief than a party is
[*200] is that the ordinary expectation that supports the      entitled to is subject to reversal, but it is not, for that
presumption that a judgment [**27] rendered after a            reason alone, interlocutory. 50
conventional trial on the merits will comprehend all
claims simply does not exist when some form of judg-                  49     Young v. Hodde, 682 S.W.2d 236 (Tex.
ment is rendered without such a trial. On the contrary, it            1984) (per curiam); Chessher v. Southwestern
is quite possible, perhaps even probable these days in                Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)
cases involving multiple parties and claims, that any                 (per curiam).
judgment rendered prior to a full-blown trial is intended             50     Continental Airlines, Inc. v. Kiefer, 920
to dispose of only part of the case. Accordingly, the fi-             S.W.2d 274 (Tex. 1995).
nality of the judgment must be determined without the
                                                                    Texas [**30] appellate courts, this Court included,
benefit of any presumption.
                                                               have had difficulty determining when a judgment is final
                                                               on its face -- by its own express terms, in other words --
       46    See, e.g., Houston Health Clubs, Inc. v.
                                                               even though it should not have been because no suffi-
       First Court of Appeals, 722 S.W.2d 692 (Tex.
                                                               cient basis for rendering a final judgment was presented.
       1986), and the cases cited therein.
                                                               In Schlipf v. Exxon Corp., 51 the plaintiffs sued for gas
     A judgment that finally disposes of all remaining         royalties and prejudgment interest, and moved for sum-
parties and claims, based on the record in the case, is        mary judgment only on the royalties issue. Neither the
final, regardless of its language. 47 A judgment that actu-    defendant nor an intervenor moved for summary judg-
ally disposes of every remaining issue in a case is not        ment against the plaintiffs. The trial court granted the
                                                                                                                         Page 8
                                           39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                     44 Tex. Sup. J. 364

plaintiffs' motion, awarding the royalties claimed, but                   55 Teer v. Duddlesten, 664 S.W.2d 702, 704
denied prejudgment interest. The judgment recited:                        (Tex. 1984).
                                                                    [**33]
 [*201] We held that this language conclusively dis-                      56 Id.
posed of all parties and issues, as it clearly did, although              57 E.g., Bethurum v. Holland, 771 S.W.2d 719
in reaching this conclusion, we reiterated our observation                (Tex. App.--Amarillo 1989, no writ); Sakser v.
in Aldridge that the finality of a judgment would be                      Fitze, 708 S.W.2d 40, 42 (Tex. App.--Dallas
made clear "by inclusion . . . of a simple statement that                 1986, no writ) (declaring that a Mother Hubbard
all relief not expressly granted is denied." 53 This obser-               clause in an order does not convert an intrinsical-
vation, appropriate in Aldridge in reference to judgments                 ly interlocutory partial summary judgment into a
after a conventional trial on the merits, was misleading in               final judgment).
Schlipf, because the only "relief" properly under consid-                 58 E.g., Georgetown Assoc., Ltd. v. Home Fed.
eration when the order issued [**31] was that raised by                   Sav. & Loan Ass'n, 795 S.W.2d 252, 253 (Tex.
the motion for summary judgment 54 -- the plaintiffs' en-                 App.--Houston [14th Dist.] 1990, writ dism'd
titlement to royalties. After a full trial on the merits, the             w.o.j.); Hodde v. Young, 672 S.W.2d 45, 47 (Tex.
statement in a judgment that all relief not requested is                  App.--Houston [14th Dist.]) (holding that a
denied signifies finality; there is no expectation that the               judgment was final and appealable because it
court tried only part of the case, absent an order for sev-               contained a Mother Hubbard clause), writ ref'd,
erance or separate trials. But after a motion for partial                 n.r.e., 682 S.W.2d 236 (Tex. 1984) (per curiam)
summary judgment, the same statement in a judgment is                     (noting that the erroneous rendition of a final
ambiguous. It may refer only to the motion on which the                   judgment is not fundamental error).
trial court is ruling, not to all claims of all parties, and
                                                                        We attempted to clarify matters in Mafrige v. Ross.
not even to other claims of the movant.                            59
                                                                     There, two plaintiffs sued some twelve defendants for
                                                                   malicious prosecution, slander, libel, conspiracy, and
        51    644 S.W.2d 453 (Tex. 1982) (per curiam).
                                                                   negligence. 60 No party other than the plaintiffs asserted
     the relief herein granted Plaintiffs, . . . is in satisfac-   any claims. [**34] The defendants, some individually
tion of all of their claims and causes of action . . . and all     and some in groups, filed a total of eight summary judg-
claims and/or causes of action herein asserted by all par-         ment motions, some directed against one of the plaintiffs
ties herein and not herein granted are hereby in all things        and some against both. 61 Only one motion addressed
denied and concluded . . . . 52                                    both of the plaintiffs and all of the claims asserted; 62
                                                                   even together, the other seven motions did not address
       52 Id. at 454.                                              both plaintiffs and all claims. 63 The trial court granted all
 [**32]                                                            eight motions with eight separate orders, one for each
       53 Id.                                                      motion. 64 Each order stated that the [*202] plaintiff or
       54     See New York Underwriters Ins. Co. v.                plaintiffs, depending on whether the motion had been
       Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per               directed at one or both, were to take nothing against the
       curiam); Young v. Hodde, 682 S.W.2d 236 (Tex.               movant or movants. 65 Thus, taken together, the eight
       1984) (per curiam); Chessher v. Southwestern                orders provided that both of the plaintiffs were to take
       Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)              nothing against all of the defendants. On the plaintiffs'
       (per curiam).                                               appeal, however, the court of appeals held that there was
                                                                   not a final judgment because most of the defendants had
     Two years later, in Teer v. Duddlesten, we empha-
                                                                   not moved for summary judgment on all claims by both
sized that the Aldridge language -- all relief not expressly
                                                                   plaintiffs and thus were not entitled to a final judgment,
granted is denied -- which we termed for the first time a
                                                                   and the "take nothing" language of the orders did not
"Mother Hubbard" clause, has no place in partial sum-
                                                                   make them final. 66 The court also held that if the orders
mary judgments because, by definition, those proceed-
                                                                   had contained Mother Hubbard clauses they would have
ings do not address all of the facts and issues in a case. 55
                                                                   been final under this Court's precedents, [**35] alt-
A Mother Hubbard clause, we said, could not convert a
                                                                   hough the court of appeals did not agree that that would
partial summary judgment into a final order. 56 Following
                                                                   have been the proper result. 67
Teer, most courts of appeals held that a Mother Hubbard
clause could not make final a judgment rendered without
                                                                           59     866 S.W.2d 590 (Tex. 1993).
a full trial, 57 although other courts reached the contrary
                                                                           60     Id. at 590.
conclusion. 58
                                                                           61     Id.
                                                                           62     Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d
                                                                           385,   388-389 (Tex. App.--Houston [14th Dist.]
                                                                                                                 Page 9
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

       1992), rev'd sub nom. Mafrige v. Ross, 866                    70    875 S.W.2d 311 (Tex. 1994) (per curiam).
       S.W.2d 590 (Tex. 1993).                                       71    Id. at 313.
       63 Id.                                                        72    Id.
       64 866 S.W.2d at 590-591.                                     73    Id.
       65 Id.
                                                                   But in Bandera Electric Cooperative, Inc. v.
       66 Ross, 834 S.W.2d at 394.
                                                              Gilchrist, 74 we held that [**38] a Mother Hubbard
       67 Ross, 834 S.W.2d at 393-394.
                                                              clause in a summary judgment made it final. There the
     We reversed, holding that the "take nothing" lan-        plaintiff moved for summary judgment on its claims
guage in the eight summary judgment orders disposed of        without mentioning the defendant's counterclaims. 75 The
all claims asserted by both plaintiffs against each of the    defendant did not move for summary judgment. The trial
defendants and thus constituted a final judgment. We          court [*203] granted the plaintiff's motion by order
then explained:                                               that included a Mother Hubbard clause. We concluded
                                                              that the order was final, albeit erroneous. 76 We attempted
     If a summary judgment order appears to be final, as
                                                              to explain that our ruling was consistent with Martinez
evidenced by the inclusion of language purporting to
                                                              because the conflict in the orders involved in that case
dispose of all claims or parties, the judgment should be
                                                              showed that they were not final even though "a Mother
treated as final for purposes of appeal. If the judgment
                                                              Hubbard clause . . . would have created a final and ap-
grants [**36] more relief than requested, it should be
                                                              pealable judgment". 77 Besides its obvious inadequacy in
reversed and remanded, but not dismissed. We think this
                                                              explaining the result in Martinez, this explanation sug-
rule to be practical in application and effect; litigants
                                                              gested that a Mother Hubbard clause would by itself
should be able to recognize a judgment which on its face
                                                              make any summary judgment final, contrary to our
purports to be final, and courts should be able to treat
                                                              holding in Teer.
such a judgment as final for purposes of appeal. 68
                                                                     74    946 S.W.2d 336 (Tex. 1997) (per curiam).
       68      Mafrige, 866 S.W.2d at 592; accord
                                                                     75    Id. at 337.
       Springer v. Spruiell, 866 S.W.2d 592 (Tex. 1993)
                                                                     76    Id.
       (per curiam).
                                                                     77    Id. at 337 n.2.
                                                                   Determining [**39] the significance of omitting a
As examples of "language purporting to dispose of all
                                                              Mother Hubbard clause in an order has been no easier. In
claims or parties," we gave not only the "take nothing"
                                                              Park Place Hosp. v. Estate of Milo, we suggested that the
language of the orders before us, and the statement that
                                                              absence of a Mother Hubbard clause indicated that a
summary judgment is granted as to all claims asserted,
                                                              summary judgment was intended to be interlocutory. 78
but also the standard Mother Hubbard clause -- that all
                                                              There, the trial court granted summary judgment for
relief not expressly granted is denied. 69 In so doing we
                                                              three of five remaining defendants and later severed the
revived the ambiguity created in Schlipf that Teer had
                                                              judgment from the case. We concluded that the judgment
tried to end.
                                                              did not become final for purposes of appeal until it was
                                                              severed, in part based on the omission of a Mother Hub-
       69    Mafrige, 866 S.W.2d at 590 n.1.
                                                              bard clause. But in two other cases we held that the
      [**37] The ambiguity has persisted in our deci-         omission of a Mother Hubbard clause did not make a
sions. In Martinez v. Humble Sand & Gravel, Inc., 70 we       summary judgment interlocutory that otherwise appeared
held that the inclusion of a Mother Hubbard clause in an      final. In Continental Airlines, Inc. v. Kiefer, 79 the de-
order did not necessarily make it final. There, some but      fendant moved for summary judgment "on all claims
not all of the defendants moved for summary judgment,         brought by" the plaintiffs. After the motion was filed, but
and the trial court granted the motions, dismissing the       before it was heard and decided, the plaintiffs amended
plaintiff's cause of action against "those Defendants", but   their pleadings to add additional claims. The defendant
also ordering that summary judgment was proper "as to         did not amend its motion to address these later claims.
all remaining Defendants", thereby suggesting that the        The trial court granted what it entitled a "final summary
court intended to render a final summary judgment. 71         judgment", dismissing the plaintiffs' cause of action" --
However, the trial court subsequently severed the sum-        "cause", singular -- although multiple causes of action
mary judgment by order inviting other defendants to           [**40] had been asserted. We held that the judgment
move on the same grounds. 72 Although this order con-         was final, explaining as follows:
tained a Mother Hubbard clause, we held that judgment
                                                                   Finality "must be resolved by a determination of the
had not been rendered for the non-moving defendants. 73
                                                              intention of the court as gathered from the language of
                                                              the decree and the record as a whole, aided on occasion
                                                                                                                  Page 10
                                         39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                   44 Tex. Sup. J. 364

by the conduct of the parties." 5 RAY W. MCDONALD,              than that it appears in a form book or resides on a word
TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Cov-              processor. For whatever reason, the standard Mother
ell, ed., 1992 ed.); see Ferguson v. Ferguson, 161 Tex.         Hubbard clause is used in interlocutory orders so fre-
184, 338 S.W.2d 945, 947 (Tex. 1960). In the circum-            quently that it cannot be taken as any indication of final-
stances described here, we think the district court in-         ity.
tended to render a final, appealable judgment. . . . Nei-
                                                                     As we have already explained, an order can be a fi-
ther the parties nor the court of appeals have suggested
                                                                nal judgment for appeal purposes even though it does not
that the judgment was not final. 80
                                                                purport to be if it actually disposes of all claims still
                                                                pending in the case. Thus, an order that grants a motion
          78   909 S.W.2d 508, 510 (Tex. 1995).
                                                                for partial summary judgment is final if in fact it dispos-
          79   920 S.W.2d 274, 276 (Tex. 1996).
                                                                es of the only remaining issue and party in the case, even
          80   Id. at 277.
                                                                [**43] if the order does not say that it is final, indeed,
                                                                even if it says it is not final. (Again, we do not consider
The judgment did not include a Mother Hubbard clause,           here the various kinds of cases in which there may be
but we did not find its omission significant. We reached        more than one final judgment for purposes of appeal.)
a similar conclusion in Inglish v. Union State Bank. 81         Also, an order can be final and appealable when it should
                                                                not be. For example, an order granting a motion for
          81   945 S.W.2d 810 (Tex. 1997) (per curiam).         summary judgment that addressed all of the plaintiff's
                                                                claims when it was filed but did not address claims
      [**41] In sum, our opinions have not been entire-
                                                                timely added by amendment after the motion was filed
ly consistent on whether the inclusion or omission of a
                                                                may state unequivocally that final judgment is rendered
Mother Hubbard clause does or does not indicate that a
                                                                that the plaintiff take nothing by his suit. Granting more
summary judgment is final for purposes of appeal. This
                                                                relief than the movant is entitled to makes the order re-
ambivalence has resulted in considerable confusion in
                                                                versible, but not interlocutory. 83
the courts of appeals. 82
                                                                       83 See Young v. Hodde, 682 S.W.2d 236, 237
          82 See, e.g., Elaine A. Carlson & Karlene S.
                                                                       (Tex. 1984) (per curiam); Chessher v. Southwest-
          Dunn, Navigating Procedural Minefields: Nu-
                                                                       ern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.
          ances in Determining Finality of Judgments,
                                                                       1983) (per curiam); Schlipf v. Exxon Corp., 644
          Plenary Power, and Appealability, 41 SO. TEX.
                                                                       S.W.2d 453 (Tex. 1983) (per curiam).
          L. REV. 953, 969-1001 (2000); William J. Cor-
          nelius & David F. Johnson, Tricks, Traps, and              While the present problems in determining whether
          Snares in Appealing a Summary Judgment in             an [**44] order is a final judgment should be lessened
          Texas, 50 Baylor L. Rev. 813, 825-835 (1998).         significantly by denying the standard Mother Hubbard
                                                                clause of any indicia of finality in any order not issued
III                                                             after a conventional trial, the difficulty in determining
                                                                what does make an order final and appealable remains.
      A
                                                                One solution would be stricter requirements for the form
      Much confusion can be dispelled by holding, as we         of a final judgment. Rule 58 of the Federal Rules of Civil
now do, that the inclusion of a Mother Hubbard clause --        Procedure takes this approach by requiring that to be
by which we mean the statement, "all relief not granted is      final a judgment must "be set forth on a separate docu-
denied", or essentially those words -- [*204] does not          ment" and be entered by the clerk on the civil docket.
indicate that a judgment rendered without a conventional        The separate-document requirement was added to the
trial is final for purposes of appeal. We overrule Mafrige      rule in 1963 to remove uncertainty over whether a trial
[**42] to the extent it states otherwise. If there has been     judge's opinion or order constituted a final judgment. 84
a full trial on the merits either to the bench or before a      Rule 58, with its dual requirements, "'enhances certainty
jury, the language indicates the court's intention to finally   by insisting on formality.'" 85 The United States Supreme
dispose of the entire matter, assuming that a separate or       Court has insisted on strict compliance with the rule,
bifurcated trial is not ordered. But in an order on an in-      quoting Professor Moore's observation that the rule
terlocutory motion, such as a motion for partial summary
                                                                     "'would be subject to criticism for its formalism
judgment, the language is ambiguous. It may mean only
                                                                were it not for the fact that something like this was
that the relief requested in the motion -- not all the relief
                                                                needed to make certain when a judgment becomes effec-
requested by anyone in the case -- and not granted by the
                                                                tive, which has a most important bearing, inter alia, on
order is denied. The clause may also have no intended
                                                                the time for appeal and the making of post-judgment
meaning at all, having been inserted for no other reason
                                                                                                                  Page 11
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

[**45] motions that go to the finality of the judgment             In the past we have tried to ensure that the right to
[*205] for purposes of appeal.'" 86                           appeal is not lost by an overly technical application of
                                                              the law. 91 Fundamentally, this principle should guide in
       84 Bankers Trust Co. v. Mallis, 435 U.S. 381,          determining whether an order is final. Simplicity and
       384-385, 55 L. Ed. 2d 357, 98 S. Ct. 1117 (1978).      certainty in appellate procedure are nowhere more im-
       85 CHARLES ALAN WRIGHT, ARTHUR R.                      portant than in determining the time for perfecting ap-
       MILLER, & MARY KAY KANE, FEDERAL                       peal. From the cases we have reviewed here, we con-
       PRACTICE & PROCEDURE § 2781 (2d ed.                    clude that when there has not been a conventional trial
       1995) (quoting Benjamin Kaplan, Amendments of          on the merits, an order or judgment is not final for pur-
       the Federal Rules of Civil Procedure, 1961-1963,       poses of appeal unless it actually disposes of every
       77 HARV. L. REV. 801, 831 (1964)).                     pending claim and party or unless it clearly and une-
       86 United States v. Indrelunas, 411 U.S. 216,          quivocally states that it finally disposes of all claims and
       220-221, 36 L. Ed. 2d 202, 93 S. Ct. 1562 (1973).      all parties. An order that adjudicates only the plaintiff's
                                                              claims against the defendant does not adjudicate [**48]
                                                              a counterclaim, cross-claim, or third party claim, nor
The one recognized exception is a party's failure to ob-
                                                              does an order adjudicating claims like the latter dispose
ject. 87
                                                              of the plaintiff's claims. An order that disposes of claims
                                                              by only one of multiple plaintiffs or against one of mul-
       87    Bankers Trust, 435 U.S. at 387-388.
                                                              tiple defendants does not adjudicate claims by or against
      The price of certainty, however, as federal rulemak-    other parties. An order does not dispose of all claims and
ers have come to realize, is that in many cases the failure   all parties merely because it is entitled "final", or because
to comply with Rule 58 means that no final [**46]             the word "final" appears elsewhere in the order, or even
judgment was ever rendered, and the time for appeal           because it awards costs. Nor does an order completely
remains open. 88 A proposed amendment to Rule 58              dispose of a case merely because it states that it is ap-
would provide that if final judgment is not rendered on a     pealable, since even interlocutory orders may sometimes
separate document, it is deemed rendered on the sixtieth      be appealable. Rather, there must be some other clear
day after the clerk's entry on the civil docket. 89 While     indication that the trial court intended the order to com-
this proposal helps ensure that every case will be closed,    pletely dispose of the entire case. Language that the
it also makes it more likely that a party will not be aware   plaintiff take nothing by his claims in the case, or that the
that the time for appeal is running -- the problem the        case is dismissed, shows finality if there are no other
1963 amendment to Rule 58 was meant to cure -- be-            claims by other parties; but language that "plaintiff take
cause he does not know of the clerk's entry on the civil      nothing by his claims against X" when there is more than
docket.                                                       one defendant or other parties in the case does not indi-
                                                              cate finality.
       88 COMMITTEE ON RULES OF PRACTICE
       & PROCEDURE OF THE JUDICIAL CON-                              91    Verburgt v. Dorner, 959 S.W.2d 615,
       FERENCE OF THE UNITED STATES, PRE-                            616-617 (Tex. 1997).
       LIMINARY   DRAFT   OF    PROPOSED
                                                                    [**49] To determine whether an order disposes of
       AMENDMENTS TO THE FEDERAL RULES
                                                              all pending claims and parties, it may of course be nec-
       OF APPELLATE, BANKRUPTCY, CIVIL,
                                                              essary for the appellate court [*206] to look to the
       AND CRIMINAL PROCEDURE 100-114 (Aug.
                                                              record in the case. Thus, in the example just given, if the
       2000).
                                                              record reveals that there is only one plaintiff and only
       89 Id.
                                                              one defendant, X, the order is final, but if the record re-
     There may be other solutions to these dilemmas           veals the existence of parties or claims not mentioned in
which could be implemented by changes in our own              the order, the order is not final. On the other hand, an
rules, and this Court's Advisory Committee is presently       order that expressly disposes of the entire case is not
studying the issues. But we do not write rules by opinion.    interlocutory merely because the record fails to show an
90
   [**47] We must decide what Texas law requires for          adequate motion or other legal basis for the disposition.
finality given the present rules.                             The record may help illumine whether an order is made
                                                              final by its own language, so that an order that all parties
       90 State Dept. of Highways & Pub. Transp. v.           appear to have treated as final may be final despite some
       Payne, 838 S.W.2d 235, 241 (Tex. 1992); Al-            vagueness in the order itself, while an order that some
       varado v. Farah Mfg. Co., 830 S.W.2d 911, 915          party should not reasonably have regarded as final may
       (Tex. 1992).                                           not be final despite language that might indicate other-
                                                              wise.
                                                                                                                    Page 12
                                         39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                   44 Tex. Sup. J. 364

     One may argue after Aldridge and Mafrige that it is         guage can ever be read to grant more relief than request-
perilous to suggest any particular language that will            ed by the parties." 94 This goes too far. The legitimate
make a judgment final and appealable because that lan-           problem with Mother Hubbard clauses, which we failed
guage can then be inserted in orders intended to be inter-       to appreciate in Mafrige, is that they are ambiguous: one
locutory. But to leave in [**50] doubt the degree of             cannot be sure whether the denial of all relief other than
clarity required for finality creates its own problems. The      what has been expressly [*207] granted is limited to
Mother Hubbard clause proved to give no indication of            relief requested in a motion or extends to all relief re-
finality not just because it found its way into every kind       quested in the litigation. But it is a long way from the
of order, but because it was inherently ambiguous, as we         now well-established fact that Mother Hubbard clauses
have explained. A statement like, "This judgment finally         can understandably be misread to the concurring opin-
disposes of all parties and all claims and is appealable",       ion's conclusion that clear language should be given no
would leave no doubt about the court's intention. An or-         meaning. We require certainty for finality, but we cannot
der must be read in light of the importance of preserving        say that certainty is impossible.
a party's right to appeal. If the appellate court is uncertain
about the intent of the order, it can abate the appeal to               94 Post, 39 S.W.3d 191, 2001 Tex. LEXIS 6,
permit clarification by the trial court. 92 But if the lan-             *89.
guage of the order is clear and unequivocal, it must be
                                                                      The concurring opinion claims as authority for its
given effect despite any other indications that one or
                                                                 position pre-Mafrige law, but before Mafrige, this Court
more parties did not intend for the judgment to be final.
                                                                 repeatedly held that general language in a summary
An express adjudication of all parties and claims in a
                                                                 judgment finally disposed [**53] of the litigation even
case is not interlocutory merely because the record does
                                                                 though no party had requested final relief. In Schlipf v.
not afford a legal basis for the adjudication. In those cir-
                                                                 Exxon Corp. we held that an order granting the plaintiffs'
cumstances, the order must be appealed and reversed.
                                                                 motion for summary judgment on one of its claims and
                                                                 generally denying all other relief was final, even though
        92    TEX. R. APP. P. 27.2.
                                                                 no defendant had moved for summary judgment or re-
     [**51] B                                                    quested the denial of any relief. 95 Similarly, in Chessher
                                                                 v. Southwestern Bell Telephone Co. we held that a sum-
      Nothing in the order in Lehmann indicates that it is a
                                                                 mary judgment generally disposing of all four claims
final judgment, and it did not dispose of all pending
                                                                 asserted by the plaintiff was final, even though the de-
claims and parties. The order in Harris states that plain-
                                                                 fendant moved for summary judgment on only one of the
tiffs take nothing as to "one of the defendants", but that
                                                                 claims. 96 Again in Young v. Hodde, we agreed that a
language does not suggest that all of the plaintiffs' claims
                                                                 Mother Hubbard clause in an order granting summary
were denied. As the order recites and as the record
                                                                 judgment for the plaintiff disposed of a defendant's
demonstrates, the defendant named in the order was not
                                                                 counterclaim, even though the plaintiff's motion had ad-
the only defendant remaining in the case. Thus, we con-
                                                                 dressed only his own claims and not the counterclaim. 97
clude that a final and appealable judgment was not ren-
                                                                 It has simply never been the law in Texas that a summary
dered in either case.
                                                                 judgment generally disposing of all claims and parties is
     We are concerned that in neither case were the              nevertheless interlocutory merely because rendition of a
non-movants provided a copy of the court's signed order          final judgment was improper. In essence, the concurring
but were merely sent notice by postcard that an order had        opinion's position is that a trial court has no jurisdiction
been signed. The Rules of Civil Procedure do not require         to grant more relief than is requested, and that if [**54]
clerks to send all parties copies of all orders, only final      it does so, its action is absolutely void. We do not agree
orders. 93 Nevertheless, the practice of courts in some          that a court's power to act, as distinct from the proper
counties is to require that a party seeking an order pro-        exercise of that power, is defined by a party's request for
vide copies and addressed, postage-paid envelopes for all        relief.
other parties. The Court's Advisory Committee should
consider whether the rules should require that all parties              95 644 S.W.2d 453 (Tex. 1982) (per curiam).
be given copies of all orders signed in a case.                         96 658 S.W.2d 563 (Tex. 1983) (per curiam).
                                                                        Although our opinion did not quote the trial
        93    See TEX. R. CIV. P. 306a(3).                              court's order, an examination of the record in the
                                                                        case reveals that the order recited that the court
 [**52] IV                                                              had considered the defendant's motion for sum-
                                                                        mary judgment, the plaintiff's responses, and the
    We must respond briefly to the concurring opinion.
                                                                        defendant's reply, and had notified the parties that
It would hold that no "type of conclusory finality lan-
                                                                        "it had determined to grant the defendant's mo-
                                                                                                                  Page 13
                                         39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                   44 Tex. Sup. J. 364

       tion for summary judgment." The decretal portion
       of the order stated "that plaintiff, Paul G.             Argued January 26, 2000
       Chessher, take nothing of and from defendant,
                                                                    JUSTICE BAKER filed a concurring opinion in
       Southwestern Bell Telephone Company. Costs of
                                                                which JUSTICE ENOCH joined, except for Part IV and
       court are hereby taxed against plaintiff, Paul G.
                                                                the discussion of Inglish and Bandera, and in which
       Chessher."
                                                                JUSTICE HANKINSON joined, except Part IV.
       97 Young v. Hodde, 682 S.W.2d 236, 236-237
       (Tex. 1984) (per curiam), writ ref'd n.r.e., 672              The Court granted these petitions in Lehmann and
       S.W.2d 45 (Tex. App.--Houston [14th Dist.]).             Harris to solve the Mafrige problems. The Court fails to
                                                                do so. Thus, while I concur in the result the Court reach-
      [**55] The concurring opinion acknowledges that
                                                                es, I cannot agree with the [**57] reasoning it uses to
its position may result in more appeals being taken from
                                                                reach that result.
orders that look final but are really interlocutory, but it
argues that appellate courts can easily deal with such               In March 1993, we granted writ in Mafrige v. Ross
problems by abating appeals to allow trial courts to clar-      to resolve the inherent problems in determining finality
ify their orders. What the concurring opinion ignores is        of summary judgments for purposes of appeal. 866
that trial courts and parties will assume that orders with      S.W.2d 590 (Tex. 1993). There we recognized that de-
general dispositive language mean what they say, only to        termining finality had "been a recurring and nagging
learn months or years after an appeal should have been          problem throughout the judicial history of this state."
taken that no final judgment was ever rendered. JUS-            Mafrige, 866 S.W.2d 590. Thus, in a major departure
TICE BAKER would insist that every order granting               from our prior jurisprudence, we created a new rule
summary judgment specifically identify: (1) the claims          providing: "If a summary judgment order appears to be
each party brought; (2) the grounds upon which each             final, as evidenced by the inclusion of language purport-
party seeks summary judgment; (3) each ground upon              ing to dispose of all claims or parties, the judgment
which the trial court granted summary judgment; and (4)         should be treated as final for purposes of appeal." Maf-
each ground upon which the trial court denied summary           rige, 866 S.W.2d 590 at 592.
judgment.
                                                                     Despite the certainty we intended this bright-line
Any order that failed to meet these requirements would          rule to provide, the last seven years have proved that the
                                                                Mafrige rule has created more problems than it
be interlocutory, according to JUSTICE BAKER, "re-
                                                                solved--confusing the lower courts, operating as a trap
gardless of how clearly it states that it is a final judgment
                                                                for unwary litigants, and consistently bringing about ar-
disposing of all parties and issues." 98 The very real risk
                                                                guably unjust and oftentimes absurd results. So, in No-
of such a rule is that thousands of judgments intended to
be final would remain interlocutory [**56] because              vember 1999, we granted the petitions in these cases to
they did not comply with all of these requirements.             resolve the Mafrige problems. Inexplicably, the Court
                                                                [**58] begins its opinion by chronicling the evolution
[*208] This is precisely what has happened in the fed-
                                                                of the rules and presumptions governing finality of or-
eral system, as we have already explained, even though
                                                                ders following a conventional trial on the merits from the
the federal rules impose far fewer requirements on final
                                                                middle of the last century to the present. 1 Then, with
judgments than the concurring opinion would.
                                                                very little discussion of the problems Mafrige and its
       98 Post, 39 S.W.3d 191, 2001 Tex. LEXIS 6,               progeny created in determining summary judgment final-
                                                                ity, the Court concludes that the solution is to maintain
       *94 (emphasis in original).
                                                                the principle of the Mafrige legal fiction--with only
    *****                                                       slight modification. However, rather than solve, the
                                                                Court merely perpetuates the problems Mafrige created.
     For the reasons we have explained, the judgments of
                                                                The cases grappling to apply Mafrige illustrate that there
the court of appeals in these cases are reversed, and the
                                                                is but one real solution. We should return to the principle
cases are remanded to that court for further proceedings.
                                                                we announced in Teer v. Duddlesten--that a Mother
    Nathan L. Hecht                                             Hubbard clause simply "has no place in a partial sum-
                                                                mary judgment," and that a summary judgment order is
    Justice
                                                                not an appealable, final judgment unless it actually dis-
    Opinion delivered: February 1, 2001                         poses of all parties and issues. 664 S.W.2d 702, 703-04
                                                                (Tex. 1984). The Court states: "We do not write rules by
CONCUR BY: James A. Baker                                       opinion." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *46. The
                                                                Court is right; we should not establish rules by judicial
CONCUR                                                          fiat. We should not have done so in Mafrige and we
                                                                                                                   Page 14
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

should not have perpetuated the [**59] Mafrige prob-           its slightly-modified Mafrige rule falls far short of rem-
lems with Inglish and Bandera. Any new summary                 edying the myriad of problems the Mafrige fiction and its
judgment finality rule should be achieved by this Court's      progeny created.
formally promulgating a new procedure rule. The Court
should recognize this, overrule Mafrige and its progeny,       A. FINALITY LANGUAGE
and await a recommendation by [*209] our rules ad-
                                                                     One source of confusion under Mafrige has been
visory committee. Because the Court refuses to take this
                                                               uncertainty about what language triggers its finality rule.
path, I concur in the judgment only.
                                                               In Mafrige, we held that a partial summary judgment is
                                                               treated as final for appeal purposes when the order con-
       1 These rules and presumptions are irrelevant
                                                               tains a Mother Hubbard clause stating that "all relief not
       to the issues before the Court today. As we have
                                                               expressly granted is denied" or other language "purport-
       repeatedly admonished--in Mafrige, in Aldridge,
                                                               ing to dispose of all claims or parties." 866 S.W.2d at 590
       and even in the Court's opinion today--the rules
                                                               & n.1, 592. We further clarified that [**62] "other"
       governing finality after a conventional trial are
                                                               finality language includes "a statement that the summary
       wholly inappropriate for determining finality of
                                                               judgment is granted as to all claims asserted by the plain-
       summary judgments. See Mafrige, 866 S.W.2d
                                                               tiff, or a statement that the plaintiff takes nothing against
       590 at 592; North E. Indep. Sch. Dist. v. Al-
                                                               defendant." Mafrige, 866 S.W.2d at 590 n.1.; see also
       dridge, 400 S.W.2d 893, 897-98 (Tex. 1966);
                                                               Inglish, 945 S.W.2d at 811 (holding statement that "de-
       Lehmann,       S.W.3d     , 1998 Tex. App. LEXIS
                                                               fendant is entitled to summary judgment in this case,"
       4657.
                                                               and that plaintiff should "take nothing on account of his
    I. MAFRIGE AND ITS PROGENY                                 lawsuit" rendered partial summary judgment final for
                                                               purposes of appeal); Springer v. Spruiell, 866 S.W.2d
     Before Mafrige, courts determined summary judg-
                                                               592, 593 (Tex. 1993) (holding that summary judgment
ment finality by reviewing the live pleadings, the sum-
                                                               order reciting plaintiffs "have and recover nothing" pur-
mary judgment [**60] motion, and the summary judg-
                                                               ported to dispose of all parties and issues).
ment order. Harris County v. Nash, 22 S.W.3d 46,
49-50 (Tex. App.--Houston [14th Dist.] 2000, pet. filed);           Despite these examples, some lower courts have re-
Kaigler v. General Elec. Ins. Mortgage Corp., 961              fused to hold orders containing this exact language final
S.W.2d 273, 275 (Tex. App.--Houston [1st Dist.] 1997,          for purposes of appeal. E.g., Carey v. Dimidjian, 982
no pet.). A summary judgment was deemed final and              S.W.2d 556, 558 (Tex. App.--Eastland 1998, no pet.)
appealable only if it expressly disposed of all parties and    (holding that order containing Mother Hubbard clause
issues or if it was severed from the remainder of the suit.    was not final and appealable where the motion was la-
Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co.,          beled "Partial Summary Judgment" and the parties treat-
159 Tex. 550, 324 S.W.2d 200, 200 (Tex. 1959) ("[A]            ed the order as interlocutory); Hinojosa v. Hinojosa, 866
summary judgment which does not dispose of all parties         S.W.2d 67, 69-70 [**63] (Tex. App.--El Paso 1993, no
and issues in the pending suit is interlocutory and not        writ) (holding that order containing Mother Hubbard
appealable unless a severance of that phase of the case is     clause did not render judgment final because it did not
ordered by the trial court.").                                 dispose of counterclaim). Other courts have struggled
                                                               with what "other" language purports to render a judg-
     With Mafrige, this Court attempted to simplify this
                                                               ment final--often reaching opposite conclusions about
process by holding that the "magic language" of a Moth-
                                                               identical clauses. Compare [*210] Postive Feed, Inc.
er Hubbard or similar finality clause conclusively trans-
                                                               v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.--Houston
forms an interlocutory summary judgment into a final,
                                                               [1st Dist.] 1999, no pet.) (holding that order granting
appealable order. Mafrige, 866 S.W.2d at 592. We have
                                                               defendant's summary judgment "in all things" purported
twice revisited Mafrige to clarify its scope. See Inglish v.
                                                               to be final), with St. Paul Ins. Co. v. Mefford, 1998 Tex.
Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997)
                                                               App. LEXIS 7388, No. 05-96-01581- CV (Tex.
(holding [**61] that the Mafrige rule applies even when
                                                               App.--Dallas Nov. 30, 1998, no pet.) (not designated for
neither party appeals the erroneous summary judgment);
                                                               publication), 1998 WL 821537, at *2 2 (holding that or-
Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336,
                                                               der granting defendant's summary judgment "in all
337 (Tex. 1997) (explaining that when the Mafrige rule
                                                               things" did not purport to be final).
renders a partial summary judgment final for purposes of
appeal, the appellate court should reverse and remand
                                                                      2 The unpublished opinions cited in Part I are
only the erroneously disposed claims). Unfortunately,
                                                                      cited only as examples, not as precedent. See
Mafrige did little towards alleviating the lower courts'
                                                                      TEX. R. APP. P. 47.7.
confusion--and Inglish and Bandera only compounded it.
The Court's opinion suffers the same problem. Namely,
                                                                                                                 Page 15
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

     While the Court recognizes that the "routine inclu-             3 This issue also arises when a trial court ex-
sion of [a Mother Hubbard clause] in [**64] otherwise                pressly mentions and disposes of a party even
plainly interlocutory orders and its ambiguity in many               though that party was not mentioned in the mo-
contexts have rendered it inapt for determining finality,"           tion for summary judgment. Here, the lower
39 S.W.3d 191, 2001 Tex. LEXIS 6, *2, it ignores the                 courts have been more willing to apply Mafrige
obvious problems courts have faced interpreting other                and hold that the order purports to dispose of all
language "purporting to dispose of all claims or parties."           parties and issues. See, e.g., Mikulich v. Perez,
Mafrige, 866 S.W.2d at 592. In fact, despite the Court's             915 S.W.2d 88, 91-92 (Tex. App.--San Antonio
extensive analysis and discussion, its holding represents            1996, no writ).
but a minor departure from Mafrige.
                                                                   In contrast, other courts have interpreted Mafrige
     Its modified rule has two parts. The first represents    more narrowly, reasoning that an "order that explicitly
no change in Texas law. It simply reiterates that a sum-      grants a summary judgment in favor of less than all the
mary judgment order that actually disposes of all parties     defendants does not clearly evidence an intent to dispose
and issues is final for purposes of appeal. 39 S.W.3d         of all claims [**67] against all defendants, especially
191, 2001 Tex. LEXIS 6, *10. The second part provides         those against whom [*211] summary judgment was
that a Mother Hubbard clause is no longer enough to           not sought, regardless of the inclusion of a Mother Hub-
invoke the fiction that an otherwise interlocutory order is   bard clause." Lowe v. Teator, 1 S.W.3d 819, 823-24 (Tex.
treated as final for purposes of appeal. Instead, to invoke   App.--Dallas 1999, pet. filed); see also Midkiff v. Han-
the Mafrige fiction, an interlocutory order must now          cock E. Tex. Sanitation, Inc., 996 S.W.2d 414, 416 (Tex.
"clearly and unequivocally state[] that it finally disposes   App.--Beaumont 1999, no pet.); Vanderwiele v. Llano
of all claims and all parties." 39 S.W.3d 191, 2001 Tex.      Trucks, Inc., 885 S.W.2d 843, 845 (Tex. App.--Austin
LEXIS 6, *47. The Court further explains that the state-      1994, no writ).
ments "plaintiff take nothing by his claims in the case"
                                                                   Here the Court summarily dismisses this omitted
and "this judgment finally disposes of all parties [**65]
                                                              parties problem:
and all claims and is appealable" clearly and unequivo-
cally state that an order is final. 39 S.W.3d 191, 2001             Nothing in the order in Lehmann indicates that it is a
Tex. LEXIS 6, *50. In essence, the Court's rule does no       final judgment, and it did not dispose of all pending
more than replace one set of magic language with anoth-       claims and parties. The order in Harris states that plain-
er--while ignoring the reality that courts will likely face   tiff take nothing as to "one of the defendants", but that
the same challenges deciding what language "clearly and       language does not suggest that all of the plaintiffs' claims
unequivocally states" that an order is final, 39 S.W.3d       were denied. As the order recites and as the record
191, 2001 Tex. LEXIS 6, *47, as they did deciding what        demonstrates, the defendant named in the order was not
other language clearly "purports to dispose of all claims     the only defendant remaining in the case. Thus, we con-
or parties" under Mafrige. 866 S.W.2d at 592.                 clude that a final appealable judgment was not rendered
                                                              in either case.
B. OMITTED PARTIES
                                                              39 S.W.3d 191, 2001 Tex. LEXIS 6, *51. Despite the
     Applying Mafrige to omitted parties, like those in
                                                              presence of a Mother Hubbard clause, the trial court and
both Lehmann and Harris, has also troubled the lower
                                                              parties in Lehmann continued treating the [**68] order
courts. Specifically, they have struggled with deciding
                                                              as interlocutory--even in the face of this Court's admon-
when finality language operates to render a summary
                                                              ishment that a Mother Hubbard clause indicates finality. 4
judgment final against omitted parties. This issue often
                                                              988 S.W.2d at 416. The Court now holds that the order
surfaces when both the summary judgment motion and
                                                              did not purport to be final based solely on its new rule
the resulting order omit any specific reference to one or
                                                              discounting the dispositive effect of Mother Hubbard
more parties. 3 In this situation, several courts have held
                                                              clauses.
that Mafrige applies, reasoning that issues and parties are
co-extensive and thus if "an order disposes of all issues
                                                                     4 In fact, the district clerk sent all the parties
in a case, then it necessarily disposes of all parties to a
                                                                     (including those omitted from the summary
case, [**66] and vice versa." Kaigler, 961 S.W.2d at
                                                                     judgment order) a postcard indicating that an
276; see also Lehmann v. Har-Con Corp., 988 S.W.2d
                                                                     "Order for Interlocutory Summary Judgment" had
415, 416-17 (Tex. App.--Houston [14th Dist.] 1999, pet.
                                                                     been signed. Lehmann, 988 S.W.2d at 416.
granted); Harper v. Newton, 910 S.W.2d 9, 12 n.1 (Tex.
App.--Waco), rev'd sub nom. on other grounds, Dallas               However, the Court's resolution merely sidesteps the
County v. Harper, 913 S.W.2d 207 (Tex. 1995).                 real problem. What happens in the next case when, on
                                                              facts identical to Lehmann, a trial court signs an interloc-
                                                                                                                Page 16
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

utory summary judgment with the Court's new magic             an order adjudicating claims like the latter dispose of the
language rather than a Mother Hubbard clause? We are          plaintiff's claims. An order that disposes of claims by
right back where we started. Substituting one magic           only one of multiple plaintiffs or against one of multiple
phrase for another leads nowhere.                             defendants does not adjudicate claims by or against other
                                                              parties. An order does not dispose of all claims and all
     The reality is simply that omitted parties oftentimes
                                                              parties merely because it is entitled "final," or because
do not believe that a summary judgment order that they
                                                              the word "final" appears elsewhere in the order, or even
have [**69] not seen, that does not mention them, and
                                                              because it awards costs. Nor does an order completely
that results from a hearing in which they did not partici-
                                                              dispose of a case merely because it states that it is ap-
pate will operate to dispose of them or their claims. But,
                                                              pealable, since even interlocutory orders may sometimes
under the Court's standard, if these parties do not perfect
                                                              be appealable. Rather, there must be some other clear
a timely appeal from the erroneous judgment, their right
                                                              indication that the trial court intended the order to com-
to appeal is forever lost. This result elevates form over
                                                              pletely dispose of the entire case.
substance and hinders parties' rights to have the merits of
their claims considered. See, e.g., Rodriguez v. NBC
                                                              39 S.W.3d 191, 2001 Tex. LEXIS 6, *47-48.
Bank, 5 S.W.3d 756, 763 n.4 (Tex. App.--San Antonio
1999, no pet.) (recognizing this Court's "express goal of          Under its modified finality rule, the lower courts'
reaching the merits of a cause of action, instead of dis-     disagreement in this area will continue because too many
missing actions on procedural technicalities").               questions are left unanswered. For example, should a
                                                              "final" summary judgment order stating that defendant is
C. OMITTED CROSS-CLAIMS AND COUNTER-                          granted summary judgment "in all things" dispose of a
CLAIMS                                                        cross-claim by another defendant as well as the claim by
                                                              the plaintiff that brought the original claim? In this
     The courts of appeals have also treated omitted
                                                              [**72] situation, there is no doubt that the order is un-
cross-claims and counterclaims inconsistently--despite
                                                              ambiguous. However, it is likewise clear, but not from
our holding in Bandera. In Bandera, the trial court
                                                              the order, that the third party's claim against the defend-
signed an order with a Mother Hubbard clause that did
                                                              ant was never considered. Should an order granting
not mention the defendant's counterclaims. 946 S.W.2d at
                                                              summary judgment for a plaintiff that recites it is a final
337. This Court explained that "because the order con-
                                                              and appealable order be final for counterclaims not men-
tained a Mother Hubbard clause denying all other relief,
                                                              tioned in the motion or order? The order unequivocally
it also purported to dispose of [the defendant's] counter-
                                                              states that it is a final, appealable order. Nonetheless
claims." Bandera, 946 S.W.2d at 337. [**70] But sev-
                                                              there is a counterclaim that has not been considered. The
eral courts have refused to apply Mafrige in this situa-
                                                              Court states that a summary judgment granted for a
tion, maintaining that a summary judgment that does not
                                                              plaintiff "does not adjudicate a counterclaim" and then
mention counterclaims or cross-claims cannot purport to
                                                              goes on to say that to make the order final there must be
be final--regardless of whether it contains finality lan-
                                                              "some other clear indication that the trial court intended
guage. E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33
                                                              the order to completely dispose of the entire case." 39
(Tex. App.--Houston [14th Dist.] 2000, pet. denied);
                                                              S.W.3d 191, 2001 Tex. LEXIS 6, *47-48. In the example
Hervey v. Flores, 975 S.W.2d 21, 25 (Tex. App.--El Paso
                                                              above, does the additional statement that "this is a final,
1998, pet. denied); cf. Coleman Cattle Co., Inc. v. Car-
                                                              appealable order" provide this "other clear indication"?
pentier, 10 S.W.3d 430, 433 n.2 (Tex. App.--Beaumont
                                                              These very issues are repeatedly raised in the courts of
2000, no pet.). Other courts have followed Bandera's
                                                              appeals, and the Court's modified rule simply does not
mandate, holding that finality language--such as "plain-
                                                              resolve them.
tiff takes nothing"--renders [*212] a judgment final
for appeal purposes, despite omission of any reference to
                                                              D. TRIAL COURTS' AND PARTIES' INTENT
defendant's counterclaims. In re Monroe, 2000 Tex. App.
LEXIS 2159, No. 05-99-01758- CV (Tex. App.--Dallas                 Differing philosophies about the effect the trial
Mar. 31, 2000, orig. proceeding) (not designated for pub-     courts' and parties' intent should have on how [**73]
lication), 2000 WL 378519, at *1-2; see also Kaigler,         Mafrige applies has created the most confusion and in-
961 S.W.2d at 275-76.                                         consistency. The courts of appeals have taken three ap-
                                                              proaches. Some courts apply a bright-line test, holding
    The Court's rule does not provide a satisfactory
                                                              that a Mother Hubbard clause or other finality language
remedy for this situation either. The Court states:
                                                              always renders an order final for appeal purposes, re-
    An order that adjudicates only the plaintiff's claims     gardless of any evidence of contrary intent. E.g., Preston
against the defendant does [**71] not adjudicate a            v. American Eagle Ins. Co., 948 S.W.2d 18, 20-21 & n.1
counterclaim, cross-claim, or third party claim, nor does     (Tex. App.--Dallas 1997, no writ) (holding that summary
                                                                                                                  Page 17
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

judgment purported to be final despite fact it was entitled    to determine if an order actually disposes of all pending
"partial summary judgment"); cf. In re Cobos, 994              parties and issues.
S.W.2d 313, 315 (Tex. App.--Corpus Christi 1999, orig.
                                                                    Because of the lower courts' confusion and disa-
proceeding) ("As Mafrige and Inglish make clear, the
                                                               greement about the role of intent in determining finality,
intent of the trial court is not the controlling considera-
                                                               I am convinced that the Court has not provided a worka-
tion in determining whether a judgment is final."). Other
                                                               ble rule that clearly [**76] defines that role as it applies
courts modify this approach, looking only within the four
                                                               to determining summary judgment finality.
corners of the order and giving effect to any evidence of
contrary intent found there. E.g., Rodriguez, 5 S.W.3d at         E. APPLYING MAFRIGE TO NON-SUMMARY
763-64 (Tex. App.--San Antonio 1999, no pet.) ("Look-          JUDGMENT ORDERS
ing within the four corners of the summary judgment
                                                                    Finally, the question of whether Mafrige applies
order, the plain language of the [*213] Mother Hub-
                                                               outside the summary judgment context has confused the
bard clause did not, and could not, [**74] purport to
                                                               lower courts. Courts of appeals have applied Mafrige to a
grant or deny any more relief than the relief which [the
                                                               plea to the jurisdiction, Webb v. HCM Mgmt. Corp.,
defendant] sought."); Midkiff, 996 S.W.2d at 416 (look-
ing to order "as a whole" to conclude that summary             1998 Tex. App. LEXIS 372, No. 07-96-0369- CV (Tex.
judgment order containing Mother Hubbard clause did            App.--Amarillo Jan. 12, 1998, pet. denied) (not desig-
                                                               nated for publication) 1998 WL 16033, at *1; an agreed
not purport to be final).
                                                               judgment, In re Cobos, 994 S.W.2d at 315-16; a directed
      Finally, despite our holding in Inglish that the trial   verdict, e.g., Polley v. Odom, 957 S.W.2d 932, 943 (Tex.
court's intent is irrelevant in this context, other courts     App.--Waco 1997, judgm't vacated); and a severance
still refuse to apply Mafrige if there is evidence of con-     order, Harris County Flood Control Dist. v. Adam, 988
trary intent anywhere in the record. This usually occurs       S.W.2d 423, 427 (Tex. App.--Houston [1st Dist.] 1999,
when the parties and court treat an order as interlocutory     pet. filed). In contrast, at least one court has declined to
by continuing with the litigation rather than appealing        apply Mafrige to a dismissal for want of jurisdiction. In
the erroneous order. E.g., Lowe, 1 S.W.3d at 823-24            re Tejas, 1998 Tex. App. LEXIS 4405, Nos.
(holding that summary judgment could not be final              01-98-00688-CV, 01-98-00689-CV, 01-98-00690-CV
where the record reflected that there were parties who         (Tex. App.--Houston [1st Dist.] July 13, 1998, orig. pro-
did not participate in the summary judgment proceed-           ceeding) (not designated for publication), 1998 WL
ing); Carey, 982 S.W.2d at 558 (relying, in part, on           394562, at *1 n.1. And another has expressly refused to
court's and parties' treatment of order containing Mother      [**77] extend Mafrige to any order that is not a sum-
Hubbard clause as interlocutory to conclude judgment           mary judgment. Biltmore Swim & Racquet Club Recrea-
was not final).                                                tional Ass'n v. McAbee, 1998 Tex. App. LEXIS 4812, No.
                                                               05-98-00252- CV (Tex. App.--Dallas Aug. 10, 1998, no
     The Court's solution to this problem is as confusing
                                                               pet.) (not designated for publication), 1998 WL 459819,
as the rule it seeks to supplant. It appears to reject the
                                                               at *1.
bright-line approach Mafrige espouses [**75] and in-
stead adopt a rule combining the second and third ap-               In Aldridge, this Court held that a presumption of
proaches. First, the Court notes that an order is final for    finality exists when an order is signed following a tradi-
appeal purposes if it "unequivocally states that it finally    tional trial on the [*214] merits. Aldridge, 400
disposes of all parties and all claims and is appealable."     S.W.2d at 897-98. But we specifically noted that such a
39 S.W.3d 191, 2001 Tex. LEXIS 6, *47. It also explains        finality presumption would not be appropriate in other
that "if the language of the order is clear and unequivo-      contexts. Aldridge, 400 S.W.2d at 897. Then in Mafrige
cal, it must be given effect despite any other indications     we carved out an exception to what we had said in Al-
that one or more parties did not intend for the judgment       dridge by holding that an irrebuttable finality presump-
to be final." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *50.           tion applies to summary judgments containing a Mother
From these statements, the Court's new rule walks and          Hubbard or similar finality clause. Mafrige, 866 S.W.2d
talks a lot like a bright-line Mafrige rule, with magic        at 592. Here again, just as we had limited Aldridge to
language establishing finality.                                conventional trials on the merits, we expressly limited
                                                               Mafrige to summary judgments. Mafrige, 866 S.W.2d at
      However, the Court also states that "to determine
                                                               591 ("The issue is whether . . . a summary judgment,
whether an order disposes of all pending claims and par-
                                                               which purports to be final by the inclusion of Mother
ties, it may of course be necessary for the appellate court
                                                               Hubbard language or its equivalent, should be treated
to look to the record in the case." 39 S.W.3d 191, 2001
                                                               [**78] as final for purposes of appeal."). Unfortunately,
Tex. LEXIS 6, *49. This sounds more like a pre-Mafrige
                                                               several courts of appeals have erroneously applied Maf-
rule, where a court must look to the record and the order
                                                                                                                     Page 18
                                         39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                   44 Tex. Sup. J. 364

rige in other contexts, causing confusion over how to           ("Mafrige is not as clear to litigants as the supreme court
determine finality of various other types of orders.            believes it is . . . . In short, Mafrige has created several
                                                                problems: 1) it is catching the parties by surprise . . .;2) it
      Mafrige and its progeny are limited to summary
                                                                exalts form over substance; and 3) in more than a few
judgments--with good reason. No good can come of in-
                                                                situations, it ignores common sense."); Carlson & Dunn,
terjecting additional uncertainty into (1) conventional
                                                                Navigating [*215] Procedural Minefields: Nuances in
trials on the merits, to which the majority acknowledges
                                                                Determining Finality of Judgments, Plenary Power, and
the Aldridge presumption has "proved a fairly workable"
                                                                Appealability, 41 S. TEX. L. REV. 953, 971 (2000)
rule, 39 S.W.3d 191, 2001 Tex. LEXIS 6, *23, or (2) nu-
                                                                ("Despite the appeal of the certainty provided by this
merous other types of orders, when even the majority
                                                                bright-line rule, the reality is that still, after seven years,
acknowledges that "the ordinary expectation" supporting
                                                                it continues to operate as a trap for unwary litigants,
a finality presumption "simply does not exist when some
                                                                bringing about arguably unjust and oftentimes draconian
form of judgment is rendered without such a trial" be-
                                                                results."); Swanda, Summary [**81]                   Judgment,
cause "it is quite possible, perhaps even probable these
                                                                Mother Hubbard Clauses, and Mafrige v. Ross, AP-
days . . . that any judgment rendered prior to a full-blown
                                                                PELLATE ADVOCATE, May 1997, at 3 (complaining
trial is intended to dispose of only part of the case." 39
                                                                that the questions Mafrige raises "are just as elusive" as
S.W.3d 191, 2001 Tex. LEXIS 6, *27.
                                                                the questions it sought to resolve).
     However, the Court's opinion here implicates finali-
                                                                     Strong policies support our practice of adhering to
ty of all judgments. This expansion into issues not before
                                                                settled rules of law "unless there exists the strongest rea-
the Court today can only cause mischief in areas already
                                                                sons for change." Benavides v. Garcia, 290 S.W. 739,
plagued by confusion. If the Court persists in adhering to
                                                                740-41 (Tex. Comm'n App. 1927, judgm't adopted). But
Mafrige's principles, it [**79] should at least limit its
                                                                we have also recognized the "doctrine of stare decisis
holding, as we did in Mafrige, to summary judgements.
                                                                does not stand as an insurmountable bar to overruling
                                                                precedent." Gutierrez v. Collins, 583 S.W.2d 312, 317
II. POLICY CONSIDERATIONS
                                                                (Tex. 1979). "Generally, we adhere to our precedents for
     Not surprisingly, the post-Mafrige era has given rise      reasons of efficiency, fairness, and legitimacy." Weiner
to considerable analysis by courts and commentators of          v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995). However,
both the competing policies Mafrige implicates and sug-         when adherence to a judicially- created rule of law no
gestions for reform. A few have applauded the                   longer furthers these interests, and "the general interest
bright-line rule. See Kaigler, 961 S.W.2d at 275-76 (rec-       will suffer less by such departure, than from a strict ad-
ognizing that the rule provides harsh results, but empha-       herence," we should not hesitate to depart from a prior
sizing that uniform enforcement "encourages attentive-          holding. Benavides, 290 S.W. at 740. The lower courts'
ness to correct judgments"); Boyce, Mafrige v. Ross and         application of Mafrige over the last seven years illus-
the Pitfalls of Presumptions, APPELLATE ADVO-                   trates undeniably that this is just such [**82] a case.
CATE, Nov. 1997, at 7 (opining that Mafrige "resolved
                                                                     We intended Mafrige, Inglish, and Bandera to pro-
the confusion created by prior contradictory language
                                                                vide certainty to litigants. Instead, they have bred chaos.
and flatly inconsistent holdings").
                                                                Most disturbing is that the casebooks are now replete
                                                                with examples of dismissed cases where the parties and
However, praises have been few and far between. Criti-
                                                                courts clearly intended an order containing finality lan-
cism has been the rule and the comments call for this
                                                                guage to be interlocutory. 5 E.g., Inglish, 945 S.W.2d at
Court to reconsider our decision:
                                                                811; In re Cobos, 994 S.W.2d at 315-16; Pena v. Valley
      What began as a benign growth allowing review of          Sandia, Ltd., 964 S.W.2d 297, 298-99 (Tex.
unripe claims on appeal, in Mafrige, became a malignant         App.--Corpus Christi 1998, no pet.); Kaigler, 961 S.W.2d
cancer cutting off causes of action before trial, in Inglish.   at 275-76. Even the Court acknowledges:
If it were up to me, I would lock Mother Hubbard in the
                                                                     The ordinary expectation that supports the presump-
cupboard and return to the rule before Aldridge [**80]
                                                                tion that a judgment rendered after a conventional trial
that a judgment is final and appealable only if it express-
                                                                on the merits will comprehend all claims simply does not
ly disposes of all parties and all claims in the case. That
                                                                exist when some form of judgment is rendered without
appellants can even cite authority for the absurd result
                                                                such a trial. On the contrary, it is quite possible, perhaps
they seek, illustrates how wrong a turn the law has taken
                                                                even probable these days in cases involving multiple
in this area--and how strong the need to right it.
                                                                parties and claims, that any judgment rendered prior to a
     Harris County Flood Control Dist., 988 S.W.2d at           full-blown trial is intended to dispose of only part of the
427-28 (Taft, J., concurring in denial of rehearing en          case. Accordingly, the finality of the judgment must be
banc); see also, e.g., Lehmann, 988 S.W.2d at 418               determined without the benefit of any presumption.
                                                                                                                Page 19
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

                                                               pounded the problem by confirming that Mafrige applies
39 S.W.3d 191, 2001 Tex. LEXIS 6, *26-27. Because              even when the parties continue litigating rather than ap-
[**83] of this reality, it is difficult to understand why      pealing a partial summary judgment made final under
the Court persists in adhering to Mafrige's principles.        Mafrige. Inglish, 945 S.W.2d at 811. We completed the
                                                               trilogy in Bandera, holding that when a party appeals a
       5 Oftentimes in these cases litigation continues        summary judgment granting more relief than requested,
       to move forward. Any error in including magic           the court of appeals should address the merits of the ap-
       finality language in a summary judgment is not          peal, remanding only the part of the judgment that ex-
       discovered until it is too late; the appellate time-    ceeds the relief requested in the summary judgment mo-
       table has expired and the trial court has lost ple-     tion. 946 S.W.2d at 337. Undeniably, these rules were
       nary power to act. The litigants have forever lost      designed to simplify summary judgment finality. But, in
       their right to complain of the judgment.                application, these cases only demonstrate that we should
                                                               have adhered to our own admonishments that this Court
     The author of the Court's opinion recently opined:
                                                               simply should not make rules by opinion. E.g., Alvarado
"Appellate procedure should not be tricky. It should be
                                                               v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (ex-
simple, it should be certain, it should make sense, and it
                                                               plaining that we [**86] should not revise rules by
should facilitate consideration of the parties' argument on
                                                               opinion); see also Verburgt v. Dorner, 959 S.W.2d 615,
the merits. . . ." Lane Bank Equip. Co. v. Smith S. Equip.,
                                                               619 (Tex. 1997) (Baker, J., dissenting) (noting that this
Inc., 10 S.W.3d 308, 314 (Tex. 2000) (Hecht, J., concur-
                                                               Court's jurisprudence forbids rule amendments by judi-
ring). This Court has repeatedly refused to adopt posi-
                                                               cial fiat).
tions which elevate form over substance. See, e.g., Phil-
lips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999); Nueces              Thus, we should overrule Mafrige, Inglish, and
Canyon Consol. Indep. Sch. Dist. v. Central Educ.              Bandera--to the extent they created new rules by judicial
Agency, 917 S.W.2d 773, 775-76 (Tex. 1996). [**84]             fiat--and instead tackle the problems of summary judg-
The Court here even recognizes that "simplicity and cer-       ment finality through our rulemaking process. Accord-
tainty in appellate procedure are nowhere more important       ingly, we should return to our prior position that a Moth-
than in determining the time for perfecting appeal." 39        er Hubbard clause (or other magic language) has no
S.W.3d 191, 2001 Tex. LEXIS 6, *47. Unfortunately              place in any summary judgment order--final or par-
though, the Court declines to embrace this opportunity         tial--and that a trial court may not sua sponte grant more
[*216] to effectuate meaningful change and provide             relief than the parties request simply by adding conclu-
certainty for courts and litigants. Instead the Court leaves   sory finality language to a summary judgment order.
them as it found them, grappling with determining              Further, a summary judgment should be entitled to no
whether summary judgment orders are fictitiously made          presumption at all about whether it is final.
final.
                                                                    Returning to the law as it was pre-Mafrige requires
                                                               determining the state of the law before Mafrige. Mafrige
III. THE SOLUTION
                                                               actually held two things: (1) that "'Mother Hubbard' lan-
     The Court notes: "We do not write rules by opinion.       guage or its equivalent in an order granting summary
We must decide what Texas law requires for finality,           judgment makes an otherwise partial summary judgment
given the present rules." 39 S.W.3d 191, 2001 Tex. LEX-        final for appeal purposes; " and (2) that if [**87] a
IS 6, *46-47. Yet, the Mafrige finality rule this Court        summary judgment "grants more relief than requested, it
created represented such a major departure from prior          should be reversed and remanded, but not dismissed."
Texas law. In fact, but for the judicially-created Mafrige     866 S.W.2d 590, 592.
rule, no one would dispute that "what Texas law requires
                                                                   Before Mafrige, this first holding was not the law. In
for finality" of summary judgments is an order actually
                                                               Teer v. Duddlesten we held that:
disposing of all parties and issues.
                                                                    There is no presumption in partial summary judg-
     Rather than simply amend the Mafrige finality rule
                                                               ments that the judgment was intended to make an adju-
and perpetuate the problems the unworkable system
                                                               dication about all parties and issues. The Mother Hub-
Mafrige and its progeny created, the Court should focus
                                                               bard clause that "all relief not expressly granted is de-
on shaping a real solution--one providing the desired
                                                               nied" has no place in a partial summary judgment hear-
certainty and protecting [**85] parties' right to appel-
                                                               ing. The concepts of a partial summary judgment on the
late review. This requires wiping the slate clean. Mafrige
                                                               one hand, and a judgment [*217] that is presumed to
created enough problems with its fictional finality and its
                                                               determine all issues and facts on the other, are incon-
holding that trial courts can use magic language to create
                                                               sistent.
final summary judgments by granting relief not request-
ed. 866 S.W.2d 590 at 591-92. In Inglish we com-
                                                                                                                   Page 20
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

664 S.W.2d at 704. In Mafrige we recognized this earlier      relief than requested, without any sua sponte severance
statement in Teer, but rejected it and held that finality     of some issues while others are remanded.
language could render a partial summary judgment final
                                                                   Wiping the slate clean by overruling the rules creat-
for purposes of appeal. 866 S.W.2d 590 at 592.
                                                              ed in Mafrige, Inglish, and Bandera while we study the
     Mafrige's second holding--that a summary judgment        best method of tackling summary judgment finality
granting more relief than requested should be reversed        through our formal rule- promulgation process is the
and remanded, but not dismissed--does not appear to be        better solution for several reasons. First, this approach
an entirely new rule. In both Teer and Chessher, another      strikes a more reasonable balance between the competing
pre-Mafrige case, we reversed and remanded (rather            policies of promoting certainty and preserving parties'
[**88] than dismissed) summary judgment orders after          rights to appellate review. And, under this approach, the
determining that they were interlocutory because they         trial court and the parties drafting summary judgment
granted more relief than requested. See Teer, 664 S.W.2d      orders would have the burden, and the incentive, to en-
702 at 705; Chessher v. Southwestern Bell Tel. Co., 658       sure that the pleadings, summary judgment motions, and
S.W.2d 563, 564 (Tex. 1983). But see Ross v. Arkwright        the summary judgment orders match. If a premature ap-
Mut. Ins. Co., 834 S.W.2d 385, 393 (Tex. App.--Houston        peal is taken, the court of appeals need only compare the
[14th Dist.] 1992) (opining that these cases are "in direct   pleadings, motions, and order. If the order does not dis-
contravention of TEX. R. CIV. P. 166a(c)" and discuss-        pose of parties or issues raised in the pleadings, then it is
ing disagreement in the courts over whether summary           interlocutory and the court must dismiss the appeal. 7 If
judgment orders granting more relief than requested were      the order explicitly [*218] disposes of issues and par-
interlocutory or appealable, but erroneous, judgments),       ties not raised in the motion, [**91] it is erroneous and
rev'd sub. nom. Mafrige, 866 S.W.2d at 590. Thus,             the court must reverse the entire order.
while the courts were not entirely in agreement, it ap-
pears we had already established the rule that a summary              7 Of course, this procedure would not apply if
judgment order granting more relief than requested is not             the order fell within the category of cases for
interlocutory--it is simply erroneous. For this reason, I             which there can be more than one final judgment,
agree with the Court that if an order actually does dis-              or the category of orders for which a court of ap-
pose of each claim and every party, it is an appealable               peals has been granted statutory authority to re-
judgment, even if it grants more relief than requested.               view interlocutory orders.
This is consistent with the long-standing rule that if an
                                                                   Most importantly, this approach alters the conse-
order actually disposes of [**89] all parties and issues,
                                                              quences of poorly-drafted orders. Specifically, the con-
it is final for appeal purposes. E.g., Houston Health
                                                              sequence flowing from a poorly drafted order becomes
Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692,
                                                              the risk of a premature appeal rather than an untimely
693 (Tex. 1986). However, consistent with my view that
                                                              one. This eliminates the greatest risk Mafrige creat-
we should overrule Mafrige and its progeny and recog-
                                                              ed--that an interlocutory order, contrary to the trial
nize no presumption for or against finality, I do not be-
                                                              court's and (at least one party's) intent, will be fictitiously
lieve any type of conclusory finality language can ever
                                                              made final, starting the appellate and plenary power
be read to grant more relief than requested by the parties.
6                                                             timetables even while the litigation continues. No one
                                                              would argue that conducting a trial after the trial court's
       6 It would not be enough for a court to gener-         plenary power has expired is not a waste of judicial re-
       ally state "plaintiff takes nothing," "defendant is    sources. Moreover, because overruling Bandera elimi-
       granted summary judgment in all things," or "this      nates the benefits of [**92] a premature appeal, taking
       is a final appealable judgment." Conclusory final-     such an appeal would not be a cost-efficient mistake for
       ity clauses (i.e. "magic language") do not indicate    litigants to make, increasing the incentive to ensure or-
       that a trial court actually granted relief not re-     ders are more clearly drafted. If a premature appeal is
       quested for or against parties or issues are not       nonetheless taken, it would not create an onerous burden
       mentioned in the order.                                for the appellate court. The opposing party need only file
                                                              a brief pointing out that the pleadings, motion, and order
    We should determine summary judgment finality by          do not match, leading to automatic remand or dismissal.
comparing the live pleadings and the summary judgment
order. A summary judgment order should only be final if           No one disputes that rules governing summary
it matches the contents of the pleadings. [**90] And,         judgment finality could be helpful to the bench and bar
as was the law before Bandera, a court of appeals should      and facilitate judicial efficiency. But history, as well as
summarily reverse any summary judgment granting more          our own precedent, has shown that judicial opinions are
                                                              not the place to achieve this. Any attempt to adhere to
                                                              the Mafrige principle or retain parts of it while rejecting
                                                                                                                 Page 21
                                        39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                  44 Tex. Sup. J. 364

others can only lead to more problems. Instead, this           order that is silent about the party or its claims or that
Court should overrule Mafrige and its progeny and start        sua sponte grants relief no party requested without men-
anew. As the Court even notes, our rules advisory com-         tioning the parties or claims--regardless of how clearly it
mittee is currently studying summary judgment finality.        states that it is a final judgment disposing [**95] of all
39 S.W.3d 191, 2001 Tex. LEXIS 6, *28. Retaining parts         parties and issues.
of Mafrige, Inglish, Bandera as modified by the Court's
                                                                    Most significantly, in practice this would lead to
less-than-clear opinion today--only to follow with prom-
                                                               better drafting and fewer erroneous appeals. Specifically,
ulgation of a concurrent finality rule--will only lead
                                                               if required to expressly list each ground upon which
[**93] to more confusion.
                                                               summary judgment is requested, trial courts are not like-
    I agree that the cases here should be reversed. But,       ly to add grounds to their order that the summary judg-
because the Court refuses to fix the problems its judicial     ment motion did not raise.
rulemaking in Mafrige caused and allow our rulemaking
                                                                    Second, I would suggest the committee consider a
process to work, I cannot join the Court's opinion.
                                                               rule requiring that the prevailing party, who is charged
                                                               with drafting the court's order, serve copies on all other
IV. RECOMMENDATION
                                                               parties at least ten days before the trial court is to sign
    I recognize that the Supreme Court of Texas Advi-          and enter the order. Consistent with this suggestion, I
sory Committee on Rules of Civil Procedure has been            agree with the Court's suggestion that the clerk send
studying the problem of summary judgment finality. It          copies of all the actual signed orders--rather than just a
has proposed an amendment to Rule 166a of the Texas            postcard indicating that the court has signed an order.
Rules of Civil Procedure:
                                                                    The majority's author criticizes my first recommen-
     (j) Statement of Grounds. An order granting sum-          dation, asserting that there is a "very real risk" that re-
mary judgment must state the ground or grounds on              quiring judges to be explicit in their summary judgment
which the motion was granted. No judgment may be af-           orders would result in "thousands of judgments intended
firmed on other grounds stated in the motion unless they       to be final . . . remaining interlocutory." 39 S.W.3d 191,
are asserted by appellee in the appellate court as alterna-    2001 Tex. LEXIS 6, *55. He contends that "this is pre-
tive grounds for affirmance.                                   cisely what has happened in the federal system even
                                                               though the federal rules impose far fewer [**96] re-
    I do not believe this proposed amendment goes far
                                                               quirements on final judgments than the dissent would."
enough.
                                                               39 S.W.3d 191, 2001 Tex. LEXIS 6, *56. Federal Rule 58,
      First I would suggest to the committee that they         to which he refers, requires that all final judgments "be
consider requiring each summary judgment order specif-         set forth on a separate document" and be entered by the
ically identify: (1) the claims each party brings; (2) the     clerk on the docket. FED. R. CIV. P. 58.
grounds upon which each party seeks summary judg-
                                                                    This criticism only serves to amplify the real dan-
ment; (3) each ground upon which the trial court granted
                                                               gers of straying outside the summary judgment context
summary judgment; and (4) each ground upon which the
                                                               in these cases. How finality of different types of judg-
trial court [**94] denied summary judgment.
                                                               ments is determined must be governed by the nature of
    This solution is intuitive. In the vast majority of        the judgment. Houston Health Clubs, Inc., 722 S.W.2d
cases, this formality, rather than including magic lan-        at 693 ("In determining whether a judgment is final, dif-
guage, would provide notice to parties about what has          ferent presumptions apply depending on whether the
actually happened. In practice, this procedure alleviates      judgment follows a conventional trial on the merits or
many problems Mafrige's finality rule has caused.              results from default or a motion for summary judg-
                                                               ment."). Cognizant of this, my recommendation, unlike
     Under this approach, a summary judgment is not fi-
                                                               Federal Rule 58, is limited to summary judgment finality.
nal unless the order specifically identifies each claim for
relief, the grounds upon which each party seeks summary             The live pleadings define the issues in a case. The
judgment, and the court's disposition [*219] of each           issues tried do not always mirror these pleadings. See
claim and party. The appellate court's jurisdiction is de-     Vance v. Wilson, 382 S.W.2d 107, 108 (Tex. 1964).
termined only by looking at whether the trial court ren-       Nonetheless, we have repeatedly recognized that a pre-
dered an order expressly disposing of all remaining par-       sumption should exist that all issues presented by the
ties and issues. If the trial court errs by omitting certain   pleadings are disposed of in a conventional trial on
claims or parties from the order, as happened in Leh-          [**97] the merits. See Aldridge, 400 S.W.2d at 897-98;
mann and Harris, it is not a final order for purposes of       Vance, 382 S.W.2d at 108. This presumption can be re-
appeal. Under this approach a party never loses its right      butted by a contrary showing in the record. See Richey v.
to appeal based upon the finality of a summary judgment        Bolerjack, 589 S.W.2d 957, 959 (Tex. 1979). But absent
                                                                                                                  Page 22
                                       39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **;
                                                 44 Tex. Sup. J. 364

such a rebuttal, this presumption prevents judgments          disposes of all parties and all issues raised in the plead-
from languishing after trial based solely on variations in    ings. In Mafrige we created a legal fiction to simplify the
the pleadings and judgment. This presumption has saved        process of determining finality. But Mafrige created
us from the types of problems the federal system has          more problems than it solved. It is beyond me why the
experienced.                                                  Court insists on struggling through pages and pages of
                                                              history about presumptions, magic language, and Mother
     However, we sensibly limited this presumption to
                                                              Hubbard clauses instead of squarely considering the
judgments "not intrinsically interlocutory in character."
                                                              problems Mafrige caused and providing a solution. Its
Aldridge, 400 S.W.2d at 897. We have also explained
                                                              willingness to cling to this legal fiction, while refusing to
that summary judgments are intrinsically interlocutory
                                                              recognize that our rulemaking in Mafrige and its progeny
and thus they should not be presumed final. Houston
                                                              was not the correct solution, will only create more prob-
Health Clubs, Inc., 722 S.W.2d at 693. Thus, there is
                                                              lems.
nothing illogical about requiring that finality language be
explicit. And I respectfully disagree that my recommen-           I concur in the judgment in these cases. But, because
dation, limited to summary judgments, will cause such         the Court declines to overrule Mafrige, Inglish, and
[*220] major havoc in the court system. Further, I be-        Bandera, and await our promulgation of a rule governing
lieve the additional formality in this context is worth the   summary judgment finality, I do not concur in its rea-
certainty and protections such a rule provides.               soning.
    V. CONCLUSION                                                 James A. Baker, Justice
     [**98] In Texas, the test for determining summary            February 1, 2001
judgment finality has always been whether the judgment
                                                                                                                 Page 1




Positive
As of: Mar 30, 2015

               LEJ DEVELOPMENT CORPORATION AND L.E. JOWELL, JR., APPELLANTS
                              v. SOUTHWEST BANK, APPELLEE

                                                NO. 02-12-00088-CV

                   COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

                                    407 S.W.3d 863; 2013 Tex. App. LEXIS 9193


                                               July 25, 2013, Delivered

PRIOR HISTORY: [**1]
                                                                  Southwest Bank filed suit against Appellants on
  FROM THE 96TH DISTRICT COURT OF TAR-
                                                             August 10, 2011, alleging that LEJ had defaulted on a
RANT COUNTY.
                                                             promissory note and that Jowell Jr. was liable on the note
                                                             as guarantor. Citations were prepared for service, one
                                                             directed to L.E. Jowell, Jr. and the other to LEJ Devel-
COUNSEL: FOR APPELLANT: THOMAS M.
                                                             opment Corporation by and through L.E. Jowell, Jr. The
MICHEL, ROBLEY E. SICARD, GRIFFITH, JAY &
                                                             officer's returns reflect that both citations were personal-
MICHEL, LLP, FORT WORTH, TX.
                                                             ly served on August 18 on "L.E. Jowell," not on "L.E.
                                                             Jowell, Jr." The returns were filed with the court on Au-
FOR APPELLEE: KYLE T. GRAY, POPE, HARD-
                                                             gust 22.
WICKE, CHRISTIE, SCHELL, KELLY & RAY, L.L.P.,
FORT WORTH, TX.                                                   On September 19, Southwest Bank filed a motion to
                                                             amend the returns and a motion for default judgment.
JUDGES: PANEL: GARDNER, MEIER, and GABRI-                    Two amended officer's returns, each signed by the con-
EL, JJ.                                                      stable, were attached as exhibits [**2] to the motion to
                                                             amend. The amended returns stated that L.E. Jowell, Jr.
OPINION BY: ANNE GARDNER                                     was the person on whom the constable had effectuated
                                                             service of the citations to LEJ and Jowell Jr. on August
OPINION                                                      18.

 [*865] I. Introduction                                           On September 22, the trial court ordered that each of
                                                             the original returns was "[t]hereby amended to reflect
     By this restricted appeal, Appellants LEJ Develop-      that Defendant L.E. Jowell, Jr. was served" and that LEJ
ment Corporation (LEJ) and L.E. Jowell, Jr. (Jowell Jr.)     "was served by and through its registered agent, L.E.
seek reversal of the trial court's September 22, 2011 de-    Jowell, Jr." The trial court further ordered that the
fault judgment against them and in favor of Appellee         amended returns attached to Southwest Bank's motion to
Southwest Bank. Appellants argue in one issue that the       amend "should be and [were t]hereby authorized to be
trial court erred by rendering default judgment because      filed among the papers" of the case. Also on September
service of citation was allegedly defective. We affirm.      22, the trial court signed the "Final Default Judgment"
                                                             against LEJ and Jowell Jr. The trial court's handwritten
II. Background                                               docket sheet reflects that the court signed the order
                                                                                                                   Page 2
                                  407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **


granting amendment of the returns before signing the          2004, pet. denied). As long as the record as a whole
default judgment. The amended returns were subse-             shows that the citation [**5] was served on the defend-
quently filed with the trial court clerk on October 3.        ant, service of process will not be invalidated. Id. at 444.
                                                              Whether service strictly complied with the rules is a
     On December 7, 2011, Appellants filed a motion to
                                                              question of law that we review de novo. Furst v. Smith,
fix date of notice and for new trial in which they claimed
                                                              176 S.W.3d 864, 869-70 (Tex. App.--Houston [1st Dist.]
to have first acquired actual notice of the judgment on
                                                              2005, no pet.).
November 11, 2011. In an affidavit dated December 6,
2011, Jowell Jr. averred that he had [**3] incorrectly
                                                              B. Rule of Civil Procedure 118
believed that Southwest Bank had to collect its debt from
someone else before it could execute against his personal
                                                              1. Notice of Amendment to Returns of Service
assets and that his misunderstanding led Appellants to
not file an answer. Jowell Jr. also stated in the affidavit        Appellants first argue that the trial court erred by al-
[*866] that he was misled into signing the loan docu-         lowing amendment of the returns of service without giv-
ments at issue. Appellants later withdrew their motion to     ing them notice of the proposed amendment. Specifical-
fix date of notice and for new trial, stating in open court   ly, Appellants contend that rule of civil procedure 118
their intention to instead rely upon their motion to dis-     "requires that a defendant receive notice of a request to
miss for lack of jurisdiction. The trial court conducted a    the trial court to amend a return of service."
hearing on Appellants' motion to dismiss for lack of ju-
                                                                  Rule of civil procedure 118 states:
risdiction on February 2, 2012, and denied the motion.
This restricted appeal followed.
                                                                        At any time in its discretion and upon
                                                                     such notice and on such terms as it deems
III. Discussion
                                                                     just, the court may allow any process or
     Appellants argue in one issue that the trial court              proof of service thereof to be amended,
erred by rendering default judgment against them be-                 unless it clearly appears that material
cause they were not properly served. Within their sole               prejudice would result to the substantial
issue, Appellants contend that rule of civil procedure 118           rights of the party against whom the pro-
requires notice to the defendant before amending returns,            cess issued.
that the returns were not properly amended because they
were not filed with the court prior to the judgment, that
allowing amendment of the returns resulted in material        Tex. R. Civ. P. 118 (emphasis added).
prejudice to Appellants' substantial rights, and that the
                                                                   Appellants cite several cases to support their argu-
amended returns should [**4] have been but were not
                                                              ment that "Texas cases support the argument that notice
attached to the original citations.
                                                              to a defendant is required before a court may enter an
                                                              order amending [**6] a return in that the cases ad-
A. Standard of Review
                                                              dressing an amended return and a default [*867]
     In a restricted appeal, our review is limited to error   judgment almost all have notice to a defendant." But
that appears on the face of the record. Fid. & Guar. Ins.     there is no holding within those cases that notice is al-
Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex.         ways required, and the mere mention of notice to a de-
2006). When a default judgment is attacked by restricted      fendant in a particular case does not mean that notice is
appeal, we do not indulge any presumptions in favor of        always required. For example, one case cited by Appel-
valid issuance, service, or return of service. Reed Else-     lants involved a bill of review filed months after the de-
vier, Inc. v. Carrollton--Farmers Branch Indep. Sch.          fault judgment. The court of appeals merely noted that
Dist., 180 S.W.3d 903, 905 (Tex. App.--Dallas 2005, pet.      "after notice and hearing, the court below signed an order
denied). Strict compliance with the procedural rules          permitting the officer's return to be amended pursuant to
governing citation and return of service must affirma-        Rule 118 of the Texas Rules of Civil Procedure." Walker
tively appear on the record if the default judgment is to     v. Brodhead, 828 S.W.2d 278, 281 (Tex. App.--Austin
withstand direct attack. Primate Constr., Inc. v. Silver,     1992, writ denied) (holding trial court had jurisdiction
884 S.W.2d 151, 152 (Tex. 1994). Failure to show strict       twenty-two months after default judgment was final to
compliance on the face of the record renders any at-          order amendment of return of service). Notice was not at
tempted service invalid and requires that we set aside the    issue in that case. Each of Appellants' other cited author-
default judgment. Reed Elsevier, Inc., 180 S.W.3d at          ities made similar, passing references to notice to the
905-06. But "strict compliance with the rules does not        defendant, but none held that notice is always required
require 'obeisance to the minutest detail.'" Williams v.      before a return of service may be amended.1 See Hig-
Williams, 150 S.W.3d 436, 443-44 (Tex. App.--Austin           ginbotham v. General Life & Acci. Ins. Co.., 796 S.W.2d
                                                                                                                  Page 3
                                  407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **


695, 696-97 (Tex. 1990) (discussing trial court amend-        S.W.2d at 696 (holding recitation in order denying de-
ment of return during hearing [**7] on defendants' mo-        fendants' motions for new trial after default judgment
tion for new trial); Gonzalez v. Tapia, 287 S.W.3d 805,       and while trial court retained plenary power, indicating
807-09 (Tex. App.--Corpus Christi 2009, pet. denied)          service was proper, was tantamount to order amending
(holding trial court did not err by granting Tapia's motion   the return of citation under rule 118 to reflect service
to amend proof of service during pendency of Gonzalez's       during normal business hours at defendants' home offic-
petition for bill of review); Employer's Reinsurance          es, thus reflecting proper service); see also Dawson v.
Corp. v. Brock, 74 S.W.2d 435, 437 (Tex. Civ.                 Briggs, 107 S.W.3d 739, 745 (Tex. App.--Fort Worth
App.--Eastland 1934, writ dism'd) (noting that trial court    2003, no pet.) (holding return properly amended while
permitted amendment of return during hearing on de-           trial court retained plenary power although defendant had
fendant's motion to set aside judgment).                      already perfected appeal from default judgment); My-
                                                              lonas v. Tex. Commerce Bank--Westwood, 678 S.W.2d
       1 We also note that, in a slightly different con-      519, 521-22 (Tex. App.--Houston [14th Dist.] 1984, no
       text, a defendant who has neither filed an answer      writ) (upholding default judgment following postjudg-
       nor appeared in a case is not entitled to notice of    ment amendment of return of service to show service at
       a hearing before a court can properly render de-       correct address).
       fault judgment because the defendant "received
                                                                    The record is clear that the trial court in this case
       all the notice to which it was entitled when it was
                                                              amended the returns before it rendered the default judg-
       originally served with process." Cont'l Carbon
                                                              ment. Although the trial [**10] court signed both the
       Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184,
                                                              order authorizing amendment and the default judgment
       188-89 (Tex. App.--Dallas 2000, pet. denied); see
                                                              on September 22, 2011, the trial court's handwritten
       Long v. McDermott, 813 S.W.2d 622, 624 (Tex.
                                                              docket sheet reflects that the court signed the order ex-
       App.--Houston [1st Dist.] 1991, no writ).
                                                              pressly amending the returns before signing the final
     On its face, rule 118 gives the trial court discretion   default judgment.2 Moreover, the default judgment itself
to determine the notice and terms of notice the trial court   references the amended returns. And to the extent Ap-
"deems just" in a particular case, see Tex. R. Civ. P. 118,   pellants argue that the amended returns had not been on
and our sister court [**8] has held that a trial court did    file for ten days prior to entry of the default judgment,
not err by not requiring notice to the defendant of an        "[t]he law is clear that when a return is amended under
amendment. See Bavarian Autohaus, Inc. v. Holland,            Rule 118, the amended return relates back and is regard-
570 S.W.2d 110, 113 (Tex. Civ. App.--Houston [1st Dist.]      ed as filed when the original return was filed." Walker,
1978, no writ) (discussing rule 118 and holding that trial    828 S.W.2d at 282 (citing Higginbotham, 796 S.W.2d at
court did not err "in not requiring that notice of the        696-97); Bavarian Autohaus, 570 S.W.2d at 113;
amendment be given to Bavarian Autohaus"). We there-          Lafleaur v. Switzer, 109 S.W.2d 239, 241 (Tex. Civ.
fore overrule Appellants' contention that rule 118 always     App.--Beaumont 1937, no writ); Employer's Reinsurance
requires notice to a defendant before a return of service     Corp., 74 S.W.2d at 438. That an amended return relates
may be amended. Rather, the trial court has discretion to     back to the filing date of the original return satisfies the
require notice or to permit amendment without notice.         requirement that a return of service be on file for at least
Tex. R. Civ. P. 118; see Bavarian Autohaus, 570 S.W.2d        ten days before entry of judgment. Walker, 828 S.W.2d at
at 113. Thus, we cannot conclude that there is error ap-      282; see Tex. R. Civ. P. 107; Bavarian Autohaus, 570
parent on the face of the record based on the lack of no-     S.W.2d at 113. The original returns were filed with the
tice to Appellants before the returns were amended.           trial court on August [**11] 22, 2011, were on file for
                                                              more than ten days before the trial court rendered the
2. Amended Returns Relate Back to Original Returns            default judgment on September 22, 2011, and the
                                                              amended returns relate back to the August 22, 2011 fil-
     Appellants also argue that the default judgment must
                                                              ing date for the original returns. Walker, 828 S.W.2d at
be set aside because the amended returns of service were
                                                              282.
not filed before the trial court rendered the default judg-
ment. But Appellants do not cite any authority that re-
                                                                     2 In addition, the amended returns were signed
quires the amended returns to be filed before rendition of
                                                                     by the constable on September 15, 2011, and
the default judgment. The record is clear in this case that
                                                                     were filed with the trial court on September 19,
the returns [**9] were amended before judgment, and
                                                                     2011, as exhibits to Southwest Bank's motion to
the Texas Supreme Court has held that the trial court
                                                                     amend the returns.
may enter a postjudgment order granting amendment of a
return of citation [*868] pursuant to rule 118 while the
                                                              3. No Material Prejudice to Substantial Rights
trial court retains plenary power. Higginbotham, 796
                                                                                                                   Page 4
                                  407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **


     Appellants also argue that the order allowing                   3 The current version of Rule 107 states that
amendment of the returns materially prejudiced their                 the return of service "may, but need not, be en-
substantial rights. In that regard, rule of civil procedure          dorsed on or attached to the citation." Tex. R. Civ.
118 does not permit amendment of returns of service if               P. 107(a).
"it clearly appears that material prejudice would result to
                                                                   As to Appellants' contention that the amended re-
the substantial rights of the party against whom the pro-
                                                              turns are defective because they were not verified, the
cess issued." Tex. R. Civ. P. 118. Appellants' argument,
                                                              plain language of former rule 107 required verification
however, is only that "[i]n this case, clearly material
                                                              only when the return of citation was signed by an au-
prejudice occurred to the substantial rights of the party
                                                              thorized person, not when the return was signed by an
served. Notably, the Appellants' right to appeal a case on
                                                              officer. Id.; Myan Mgmt. Grp., L.L.C. v. Adam Sparks
which they have meritorious defenses has been material-
                                                              Family Revocable Trust, 292 S.W.3d 750, 752 (Tex.
ly prejudiced by the entry of the order allowing the
                                                              App.--Dallas 2009, no pet.). The rule did not require that
amendment of the returns." Appellants [**12] do not
                                                              an officer verify his or her signature. [**14] Former
explain how the trial court's order amending the returns
                                                              Tex. R. Civ. P. 107; see Myan Mgmt. Grp., 292 S.W.3d at
materially prejudiced their substantial rights, and we note
                                                              752-53. The constable who signed the returns and
that two courts have [*869] held that a defendant's
                                                              amended returns in this case was therefore not required
substantial rights are not materially prejudiced when the
                                                              to have his signature verified.
amended return corrects only a minor defect in the orig-
inal return of citation. See Mylonas, 678 S.W.2d at                Appellants also contend that the amended returns
522-23 (holding Mylonas not prejudiced by amendment           were not "endorsed on or attached to" the original cita-
showing service at address on Memorial Drive rather           tions, thereby rendering service defective. Appellants
than Memorial Way); see also Walker, 828 S.W.2d at            rely on Verlander Enters., Inc. v. Graham, 932 S.W.2d
282 (holding Walker not prejudiced by amendment to            259, 262 (Tex. App.--El Paso 1996, no writ). Verlander
show citation left with person over sixteen and to allow      is distinguishable because the trial court's order that au-
verification of facts shown on return). Appellants do not     thorized amendment of the return of service in that case
dispute that L.E. Jowell, Jr. was served with the citations   did not amend the return by its own terms but authorized
on August 18, 2011, or that the returns of service, as        the plaintiff to "have the return . . . corrected so as to
amended, reflect the true facts of service. Under these       conform to law [and to] withdraw the citation and for-
circumstances, Appellants have not shown an error on          ward it to the Sheriff of El Paso County, Texas, for
the face of the record that would require the default         proper return of citation," which the plaintiff failed to do.
judgment to be set aside.                                     Id. at 260. Here, the trial court's order not only author-
                                                              ized amendment of the returns but also stated that each
C. Rule of Civil Procedure 107                                of the returns of service was "[t]hereby amended to re-
                                                              flect" service on Jowell Jr. and on L.E.J. through Jowell
     Appellants asserted at oral argument and contend in
                                                              Jr. Moreover, unlike the order in Verlander, the trial
their supplemental brief that the default judgment must
                                                              court here did not order that the original citations be
be set aside because the amended returns were not at-
                                                              [**15] [*870] withdrawn from the trial court or for-
tached to the citations or verified as required by rule of
                                                              warded to the sheriff for correction. And because the
civil procedure 107. [**13] Rule of civil procedure 107
                                                              original citations were not withdrawn, the amended re-
was amended effective January 1, 2012, but the version
                                                              turns could not have been attached to or endorsed on the
of Rule 107 applicable to this case stated in relevant part
                                                              original citations because the original citations remained
as follows:
                                                              on file with the trial court clerk.
          The return of the officer or authorized                  Appellants also rely on a statement from Verlander
       person executing the citation shall be en-             that "[a]lthough the second return was intended as an
       dorsed on or attached to the same; it shall            amendment of the first return pursuant to Rule 118, we
       state when the citation was served and the             do not read Rule 118 to abrogate Rule 107's requirement
       manner of service and be signed by the                 that the return, whether original or amended, be endorsed
       officer officially or by the authorized                on or attached to the citation." Id. at 262. In addition to
       person. The return of citation by an au-               the foregoing mentioned differences, the court in Ver-
       thorized person shall be verified. . . .               lander noted a final caveat in Higginbotham that its
                                                              holding was restricted to cases in which there is a record
                                                              such as a hearing on a motion for new trial and an order
Tex. R. Civ. P. 107, 733-34 S.W.2d XLV (1988, amend-          expressly amending the return or an order that is tanta-
ed 1990) (hereinafter Former Tex. R. Civ. P. 107).3           mount to amending the return of citation. See Verlander,
                                                              932 S.W.2d at 263. The court of appeals in Verlander
                                                                                                                   Page 5
                                  407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, **


pointed out that there was no such hearing nor was there      dence over former rule 107 in that context, it does not
an order expressly amending the return or that was tan-       follow that rule 118 would not take precedence in this
tamount to amendment but that the order merely author-        context. Rather, it is sufficient that the initial return was
ized the plaintiff to [**16] have the sheriff correct the     endorsed on or attached to the original citation because
return. Id. In this case, there is an order expressly         the amended return relates back to the original return and
amending the return.                                          because the original and amended returns are read to-
                                                              gether as one document. See Higginbotham, 796 S.W.2d
     To the extent that the court in Verlander may have
                                                              at 696-97; Walker, 828 S.W.2d at 282; Bavarian Auto-
intended to hold that rule 118 did not override the re-
                                                              haus, 570 S.W.2d at 113; Employer's Reinsurance Corp.,
quirement of former rule 107 that the return, whether
                                                              74 S.W.2d at 438; see also Kubovy, 2003 Tex. App.
amended or original, be endorsed on or attached to the
                                                              LEXIS 4824, 2003 WL 21299938, at *3.
citation, we respectfully disagree. Former rule 107 did
not mention amended returns of service. And although
                                                                     4 The current version of rule 107 contains the
former rule 107 required that a return of service be on
                                                                     same ten-day requirement. See Tex. R. Civ. P.
file for at least ten days before the trial court could
                                                                     107(h).
properly render default judgment, see Former Tex. R.
Civ. P. 107,4 Texas courts for decades have held that a            The original returns of service in this case were en-
return amended under rule 118 relates back to and is          dorsed on the citations themselves, and the amended
regarded as filed when the original return was filed. See     returns relate back to and are read together with the
Walker, 828 S.W.2d at 282. Thus, a trial court could          [*871] original returns. We hold that the amended re-
properly render default judgment when the original re-        turns of service [**18] in this case are not defective on
turn had been on file for at least ten days even though the   the ground that they are not endorsed on or attached to
amended return had not. Id.; see Higginbotham, 796            the citation. We overrule Appellants' sole issue.
S.W.2d at 696-97; Bavarian Autohaus, 570 S.W.2d at
113; Employer's Reinsurance Corp., 74 S.W.2d at 438;          IV. Conclusion
see also Kubovy v. Cintas Corp., No. 01-02-00521-CV,
                                                                   Having overruled LEJ and Jowell Jr.'s sole issue, we
2003 Tex. App. LEXIS 4824, 2003 WL 21299938, at *3
                                                              affirm the trial court's judgment.
(Tex. App.--Houston [1st Dist.] June 5, 2003, no pet.)
[**17] (mem. op.) ("[I]t has long been the law in Texas           ANNE GARDNER
that the original and amended returns are read as one
                                                                  JUSTICE
document."). In other words, when a return is amended
under rule 118, the provisions of rule 118 control over           PANEL: GARDNER, MEIER, and GABRIEL, JJ.
any potentially conflicting provisions of former rule 107.
Given that Texas courts hold that rule 118 takes prece-           DELIVERED: July 25, 2013
|   | Positive
As of: April 7, 2015 5:52 PM EDT


                      Lucas v. James Jolly Clark & Eonic Creations
                                  Court of Appeals of Texas, Third District, Austin
                                                June 15, 2011, Filed
                                                NO. 03-10-00474-CV

Reporter
347 S.W.3d 800; 2011 Tex. App. LEXIS 4600

C. Michael Lucas, Appellant v. James Jolly Clark &           for admission was akin to a request that the investor
Eonic Creations, Inc., Appellees                             admit all allegations, including those concerning
                                                             damages, as true, but such sweeping requests could
Subsequent History: Petition for review denied by            not be deemed judicial admissions or provide any
Clark v. Lucas, 2011 Tex. LEXIS 913 (Tex., Dec. 2,           evidence to support a trial court's damages award, for
2011)                                                        purposes of Tex. R. Civ. P. 243. Relying on an embedded
                                                             request for admission that precluded any presentation
Prior History: [**1] FROM THE DISTRICT COURT OF              of evidence on unliquidated damages undermined Rule
TRAVIS COUNTY, 200TH JUDICIAL DISTRICT. NO.                  243. No objection was necessary to reach the merits of
D-1-GN-10-001068,       HONORABLE     LORA    J.             the issue because the question was one of evidentiary
LIVINGSTON, JUDGE PRESIDING.                                 sufficiency. As no evidence other than this request for
                                                             admission existed supporting appellees' claims for
Disposition: Affirmed in Part; Reversed and Remanded         unliquidated damages or proving the foreseeability of
in Part.                                                     the damages, the evidence was insufficient to support
                                                             the default judgment's unliquidated damages award.
Core Terms
                                                             Outcome

request for admission, damages, unliquidated damages,        The court affirmed the issuance of a default judgment,
default judgment, admissions, lost profits, deemed           but reversed that portion of the default judgment that
admitted, awards, trial court, admit, cause of action,       awarded unliquidated damages. The court remanded
sweepingly, pet                                              for further proceedings.

Case Summary                                                 LexisNexis® Headnotes

Procedural Posture                                             Civil Procedure > ... > Default & Default Judgments >
                                                               Default Judgments > Entry of Default Judgments
Appellees, a company and its founder, sued appellant
investor for breach of contract and other tort claims. The     Civil Procedure > Remedies > Damages > Monetary
                                                               Damages
District Court of Travis County, 200th Judicial District
(Texas), issued a default judgment in favor of appellees       Contracts Law > ... > Measurement of Damages >
and awarded them unliquidated damages. The investor            Foreseeable Damages > Lost Profits
appealed.
                                                             HN1 When a no-answer default judgment is rendered,
Overview                                                     the defendant's liability for all causes of action pleaded
                                                             is conclusively established and all allegations of fact set
Appellees sued the investor for various torts and breach     forth in the petition are deemed admitted, except the
of contract, and were awarded damages under a default        amount of unliquidated damages. After a default
judgment. The court affirmed the issuance of a default       judgment occurs, unliquidated damages, that is,
judgment, but reversed that portion of the judgment that     damages not expressly provided for within a written
awarded damages, and remanded. Appellees' request            instrument, must be proven to the trial court. Tex. R. Civ.
                               347 S.W.3d 800, *800; 2011 Tex. App. LEXIS 4600, **1



P. 243. Recovery for unliquidated damages in the form          uses deemed admissions to try to preclude presentation
of lost profits requires that the injured party do more        of the merits of a case. Therefore, overly broad,
than show that it suffered some lost profits. The amount       merits-preclusive requests for admissions are improper
of the loss must be shown by competent evidence with           and may not result in deemed admissions. A request is
reasonable         certainty.     To       meet      this      improper and will not be deemed admitted where the
reasonably-certain-evidence standard, opinions or              party requests that the opposing party admit or deny
estimates of lost profits must, at a minimum, be based         every allegation made in petition. Sweepingly broad
on objective facts, figures, or data from which the            requests for admission may not result in deemed
amount of lost profits can be ascertained.                     admissions.

  Civil Procedure > Remedies > Damages > Monetary                Civil Procedure > ... > Methods of Discovery > Requests
  Damages                                                        for Admissions > Content & Form of Admissions
                                                                 Civil Procedure > Remedies > Damages > Monetary
HN2 See Tex. R. Civ. P. 243.
                                                                 Damages

  Civil Procedure > ... > Methods of Discovery > Requests      HN6 Tex. R. Civ. P. 243 requires that, in unliquidated
  for Admissions > Effect of Admissions
                                                               causes of action, the court shall hear evidence as to
  Evidence > Types of Evidence > Judicial Admissions >         damages and shall render judgment therefor. Tex. R.
  Effects                                                      Civ. P. 243. Relying on an embedded request for
                                                               admission that precludes any presentation of evidence
HN3 Generally, when a party fails to respond to a              on unliquidated damages undermines the spirit of Rule
request for admission, either by timely answer, written        243 and is not consistent with its purpose. Requests for
objection, or motion to file late answers, the facts           admission were simply not meant to be used to wholly
contained in the request are deemed admitted.                  preclude a defendant from presenting his defense. This
Admissions, once deemed admitted, are judicial                 is particularly true in the context of the heightened
admissions and may not be contradicted.                        evidentiary standard required to prove lost profits. The
                                                               reasonably-certain-evidence standard requires that
  Civil Procedure > ... > Methods of Discovery > Requests
                                                               estimates of lost profits be based on facts, figures, or
  for Admissions > General Overview
                                                               data. Such estimates must be founded in objective facts
HN4 The primary purpose of requests for admissions is          and cannot be generic or conclusory in nature.
to simplify trials by eliminating matters about which
                                                                 Civil Procedure > ... > Methods of Discovery > Requests
there is no real controversy. They were never intended
                                                                 for Admissions > Objections to Requests for Admissions
to be used as a demand upon a plaintiff or defendant to
admit that he had no cause of action or ground of              HN7 See Tex. R. Civ. P. 193.1.
defense. Courts have cautioned that litigants should not
be allowed to use requests for admissions as a tool to           Civil Procedure > ... > Methods of Discovery > Requests
trap their opposition.                                           for Admissions > Objections to Requests for Admissions

  Civil Procedure > ... > Methods of Discovery > Requests      HN8 It is true that typically any challenge to a request
  for Admissions > Content & Form of Admissions                for admission must be in compliance with Tex. R. Civ. P.
  Constitutional Law > ... > Fundamental Rights > Procedural   193.1. The question of a deemed admission's
  Due Process > Scope of Protection                            overbreadth only arises when a request for admission
                                                               has been deemed admitted, which, by definition, occurs
HN5 The rule regarding requests for admissions was             after a party has failed to timely respond or object to the
designed, not as a trap to prevent the presentation of         request. No request for admission would be deemed
the truth in a full hearing but as a tool for the fair         admitted if the responding party had objected in writing
disposition of litigation with a minimum of delay. When a      within the parameters of Rule 193.1. Therefore, were
party uses deemed admissions to try to preclude                the court to require a party to object in writing to a
presentation of the merits of a case, however, due             request for admission's overbreadth in order to preserve
process concerns may arise. Due process is the guiding         the issue on appeal, no appellate court would ever face
rule and principle that applies when requests for              the issue. Several other courts of appeals have,
admissions are not used as intended, and when a party          however, squarely addressed whether a "sweepingly
                                                                                                              Page 2 of 7
                                347 S.W.3d 800, *800; 2011 Tex. App. LEXIS 4600, **1



broad" request for admission may become a deemed                Opinion by: Diane M. Henson
admission when a party fails to respond. In addressing
this issue, none of these courts concluded that a Rule          Opinion
193.1 objection was required.
                                                                 [*801] Eonic Creations, Inc. and its founder, James
    Civil Procedure > ... > Methods of Discovery > Requests
    for Admissions > Content & Form of Admissions               Jolly Clark, (collectively, the "Appellees") sued investor
                                                                C. Michael Lucas for breach of contract and various
    Civil Procedure > Appeals > Reviewability of Lower Court
                                                                claims of tortious conduct. When Lucas failed to respond
    Decisions > Preservation for Review
                                                                to the Appellees' petition, the trial court issued a default
    Civil Procedure > ... > Standards of Review > Substantial   judgment in favor of the Appellees and awarded
    Evidence > Sufficiency of Evidence                          unliquidated damages of $75,000 to James Jolly Clark
                                                                and $9,925,000 to Eonic Creations. Lucas appeals,
HN9 In viewing the effect of an overly broad request for
                                                                claiming that the absence of a reporter's record from the
admission, the court's analysis centers on whether a
                                                                default judgment hearing deprived Lucas of the ability
trial court is permitted to find that the request for
admission irrefutably established the facts therein such        to review the trial court's awards, that the trial court's
that no additional evidence is required. In other words,        unliquidated damages awards are not supported by
the issue before the court concerns whether an overly           sufficient evidence, and that the use of requests for
broad request for admission, deemed true by the trial           admissions embedded within a petition to support the
court, would be legally sufficient evidence to support a        no-answer default judgment awards of unliquidated
trial court's judgment for unliquidated damages. A              damages was "inappropriate" and undermined Texas
sufficiency of the evidence question does not require an        Rule of Civil Procedure 243. We affirm the issuance of
objection at the trial court to be heard on appeal. Tex. R.     the default judgment, reverse that portion [**2] of the
App. P. 33.1(d) provides that the insufficiency of              default judgment awarding unliquidated damages, and
evidence complaint may be made for first time on                remand the case to the trial court for further proceedings
appeal.                                                         consistent with this opinion.1

    Contracts Law > ... > Damages > Types of Damages >          BACKGROUND
    Consequential Damages
    Contracts Law > ... > Measurement of Damages >              On April 2, 2010, the Appellees sued Lucas for breach
    Foreseeable Damages > General Overview                      of contract, misappropriation of trade secrets, unjust
                                                                enrichment, conversion, and aiding and abetting Eonic
HN10 Consequential damages may not be recovered                 Creations' officers and employees in violating their
unless they are foreseeable and traceable to the                fiduciary duties to the company. In their petition, the
wrongful act and result from it.                                Appellees claimed that Lucas entered into a contract
                                                                with Clark and promised to pay $60,000 to Clark for
    Civil Procedure > Appeals > Standards of Review > General
                                                                personal debts and $15,000 to Eonic Creations for
    Overview
                                                                certain patent rights to Eonic Creations' products.
HN11 Tex. R. App. P. 47.1 states that the court of              According to the Appellees' petition, Lucas also
appeals must only address issues necessary to final             contracted to make a good faith effort to obtain a
disposition of appeal.                                          $600,000 small-business loan to further the business
                                                                interests of Eonic Creations. The Appellees allege that
Counsel: For Appellant: Mr. Barry K. Bishop, Clark,             Lucas failed to pay either sum of money and [*802] did
Thomas & Winters, PC, Austin, TX.                               not make a good faith effort to obtain the promised loan.
                                                                In addition, the Appellees contend that Lucas enticed
For Appellees: Mr. D. Todd Smith, Smith Law Group,              Robert Clark, CEO and acting president of Eonic
PC, Austin, TX.                                                 Creations, and Paul Morganstern, engineer for Eonic
                                                                Creations, to leave Eonic [**3] Creations and form a
Judges: Before Chief Justice Jones, Justices Henson             new company with Lucas using Eonic Creations'
and Goodwin.                                                    products and trade secrets. In their petition, the

1
    We also grant Lucas's pending motion to withdraw and substitute counsel.
                                                                                                                Page 3 of 7
                                 347 S.W.3d 800, *802; 2011 Tex. App. LEXIS 4600, **3



Appellees sought injunctive relief and damages,                    and post-judgment interest to Eonic Creations. Lucas
including specific performance of Lucas's contractual              did not file a motion for new trial, but filed a notice of
obligations, compensatory damages, consequential                   appeal.
damages of over $10 million in lost profits and loss of
reputation, punitive damages, and attorney's fees and              Lucas does not appeal the trial court's finding of
expenses.                                                           [**5] liability, nor does he appeal the injunction against
                                                                   him or the attorney's fees and court costs awarded.4
The Appellees incorporated two requests for admissions             Lucas's only arguments on appeal involve the trial
into their original petition. The requests for admissions          court's awards of unliquidated "actual damages,"
were as follows:                                                   totaling $75,000 to Clark and $9,925,000 to Eonic
                                                                   Creations.
    Request for Admission 1: The contract attached
    to this petition as Exhibit A is a true and accurate           In three issues on appeal, Lucas argues that (1) the
    copy of the contract that you signed and entered               absence of a reporter's record from the default judgment
    into on or about May 22, 2009.2                                hearing deprived Lucas and this Court of the ability to
                                                                   adequately review the trial court's damages awards, (2)
    Request for Admission 2: As a proximate result                 the trial court's damages awards are not supported by
    of your breaching the contract made the basis                  legally and factually sufficient evidence, and (3)
    of this suit, the Plaintiffs have suffered                     supporting a no-answer default judgment's unliquidated
    consequential damages in an amount not less                    damages award with requests for admissions
    than ten million dollars.                                      embedded in a petition is [*803] "inappropriate" and
                                                                   undermines Texas Rule of Civil Procedure 243.
Lucas did not file an answer to the petition nor did he
respond to the requests for admissions.3                           DISCUSSION

On June 23, 2010, the Appellees filed a motion for                 HN1 When a no-answer default judgment is rendered,
default judgment, claiming that Lucas's failure to                 the defendant's liability for all causes of action pleaded
respond to Request for Admission 2 constituted a                   is conclusively established and all allegations of fact set
deemed admission that Lucas's contractual breach                   forth in the petition are deemed admitted, except the
caused the Appellees damages in the amount of $10                  amount of unliquidated damages. Dolgencorp of Tex.,
million. Appellees also attached an affidavit by their trial       Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) [**6] (per
counsel averring that Lucas never served an answer on              curiam); Texas Commerce Bank, N.A. v. New, 3 S.W.3d
the Appellees and identifying reasonable and necessary             515, 516 (Tex. 1999) (per curiam). After a default
attorney's fees. After "reviewing the Officers Return              judgment occurs, unliquidated damages, i.e., damages
filed May 25, 2010 and considering the pleadings and               not expressly provided for within a written instrument,
official records on file including Plaintiff's Motion for          must be proven to the trial court. See Tex. R. Civ. P.
Default Judgment as well as any evidence and                       243.5 Recovery for unliquidated damages in the form of
arguments," the trial court issued a default judgment              lost profits, as the Appellees have requested here,
granting a permanent injunction and ordering Lucas to              requires that the injured party do more than show that it
pay $75,000 in "actual damages" plus court costs,                  suffered some lost profits. The amount of the loss must
attorney's fees, and pre- and post-judgment interest to            be shown by competent evidence with reasonable
Clark and $9,925,000 in "actual damages" plus pre-                 certainty. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d

2
   Though the request for admission indicates that a copy of the contract was attached to the original petition, no copy of the
contract exists in the appellate record.
3
   The Appellees also included requests [**4] for disclosure, interrogatories, and requests for production in their petition.
Lucas did not respond to any of these discovery requests.
4
    Lucas represented in his brief that a bill of review is pending in the district court alleging that Lucas was never served with
citation.
5
  HN2 "If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to
damages and shall render judgment therefor . . . ." Tex. R. Civ. P. 243.
                                                                                                                      Page 4 of 7
                               347 S.W.3d 800, *803; 2011 Tex. App. LEXIS 4600, **6



80,    84      (Tex.      1992).     To    meet    this       merits of a case, however, due process concerns may
reasonably-certain-evidence standard, opinions or             arise. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex.
estimates of lost profits must, at a minimum, be based        2005); In re Rozelle, 229 S.W.3d 757, 764 (Tex.
on objective facts, figures, or data from which the           App.—San Antonio 2007) ("[Due process] is the guiding
amount of lost profits can be ascertained. Id.                rule and principle that applies when requests for
                                                              admissions are not used as intended, and when a party
The Appellees rely solely on Request for Admission 2,         uses deemed admissions to try to preclude presentation
which was embedded in their petition, to prove that they      of the merits of a case." (internal quotation marks and
suffered $10 million dollars of unliquidated damages in       citation [**9] omitted)). Therefore, overly broad,
the [**7] form of lost profits. Request for Admission 2       merits-preclusive requests for admissions are improper
stated: "As a proximate result of your breaching the          and may not result in deemed admissions. See In re
contract made the basis of this suit, the Plaintiffs have     Estate of Herring, 970 S.W.2d 583, 589 (Tex.
suffered consequential damages in an amount not less          App.—Corpus Christi 1998, no pet.) (holding that
than ten million dollars." HN3 Generally, when a party        admissions requesting party to "admit [wife] did not
fails to respond to a request for admission, either by        transfer community property . . . without your knowledge
timely answer, written objection, or motion to file late      and consent" and "admit you have not been injured in
answers, the facts contained in the request are deemed        any manner as a direct result of the alleged acts" were
admitted. Oliphant Fin., LLC v. Galaviz, 299 S.W.3d           sweepingly broad and not deemed admitted); Birdo,
829, 838 (Tex. App.—Dallas 2009, no pet.); Sherman            842 S.W.2d at 701 (holding that request is improper and
Acquisition II LP v. Garcia, 229 S.W.3d 802, 812 (Tex.        will not be deemed admitted where party requests that
App.—Waco 2007, no pet.). Admissions, once deemed             opposing party admit or deny every allegation made in
admitted, are judicial admissions and may not be              petition); Powell v. City of McKinney, 711 S.W.2d 69, 71
contradicted. Oliphant Fin., 299 S.W.3d at 837;               (Tex. App.—Dallas 1986, no writ) (holding that request
Sherman Acquisition, 229 S.W.3d at 812-13. As all of          asking plaintiffs to "admit [they] no longer wish to pursue
Lucas's points on appeal are impacted by whether or           their cause of action in the above styled and numbered
not Request for Admission 2, standing alone, can              cause" was sweepingly broad and should not be
support the trial court's $10 million default judgment, we    deemed admitted); see also LRT Record Servs., Inc. v.
will begin by addressing the purpose behind requests          Archer, No. 05-00-00324-CV, 2001 Tex. App. LEXIS
for admissions.                                               1447, at *2-3 (Tex. App.—Dallas Mar. 7, 2001, no pet.)
                                                              (mem. op.) ("[S]weepingly broad requests for admission
Purpose of Requests for Admissions                            may not result in deemed admissions.").
HN4 The primary purpose of requests for admissions is
                                                              Effect [**10] of Request for Admission 2
to "simplify trials by eliminating matters about which
there is no real controversy." Stelly v. Papania, 927         The Appellees argue that the conclusory statement
S.W.2d 620, 622 (Tex. 1996) [**8] (citing Sanders v.          contained in Request for Admission 2 may, as the sole
Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (Tex. 1950)).       evidence on the matter, properly support a $10 million
They were never intended to be used as a demand               default judgment for lost profits, a damages component
upon a plaintiff or defendant to admit that he had no         typically requiring an extensive and fact-intensive
cause of action or ground of defense. Id. Courts have         inquiry. This request for admission, however, is the type
cautioned that litigants should not be allowed to use         of overly broad, merits-preclusive request that other
requests for admissions as a tool to trap their opposition.   courts have cautioned against. Request for Admission
See Birdo v. Hammers, 842 S.W.2d 700, 701 (Tex.               2, asking Lucas to admit that the Appellees have
App.—Tyler 1992, no writ).                                    suffered $10 million in damages, aimed to eliminate
                                                              Lucas's ability to present a defense to the only element
HN5 The rule regarding requests for admissions "was           at issue, proof of unliquidated damages. This request is
designed, not as a trap to prevent the presentation of        akin to a request that Lucas admit all allegations made
the truth in a full hearing but as a tool for the fair        in the Appellees' petition, including those regarding
disposition of litigation with a minimum of delay." Taylor    damages, as true. Such sweeping requests for
v. Lewis, 553 S.W.2d 153, 160 (Tex. Civ. App.—Amarillo        admissions cannot be deemed judicial admissions, see
1977, writ ref'd n.r.e.). When a party uses deemed            Birdo, 842 S.W.2d at 701, nor can they provide any
admissions [*804] to try to preclude presentation of the      evidence to support a trial court's damages award.
                                                                                                            Page 5 of 7
                             347 S.W.3d 800, *804; 2011 Tex. App. LEXIS 4600, **10



In making this determination, we must also consider         for admission despite lack of Rule 193.1 objection);
HN6 Texas Rule of Civil Procedure 243, requiring that,      Birdo, 842 S.W.2d at 701 [**13] (same); Powell, 711
in unliquidated causes of action, the court "shall hear     S.W.2d at 71 (same); see also LRT Record Servs., Inc.,
evidence as to damages and shall render judgment            2001 Tex. App. LEXIS 1447, at *2-3 (same). In
therefor." Tex. R. Civ. P. 243. [**11] Relying on an        addressing this issue, none of these courts concluded
embedded request for admission that precludes any           that a Rule 193.1 objection was required.
presentation of evidence on unliquidated damages
undermines the spirit of Rule 243 and is not consistent     We agree with our sister courts that no objection was
with its purpose. Requests for admission were simply        necessary to reach the merits of the issue in this Court.
not meant to be used in the way that the Appellees have     This is true because the question before us is one of
used them here, i.e., to wholly preclude a defendant        evidentiary sufficiency rather than procedural error. HN9
from presenting his defense. This is particularly true in   In viewing the effect of an overly broad request for
the context of the heightened evidentiary standard          admission, our analysis centers on whether a trial court
required      to    prove       lost    profits.     The    is permitted to find that the request for admission
reasonably-certain-evidence standard requires that          irrefutably established the facts therein such that no
estimates of lost profits be based on facts, figures, or    additional evidence is required. In other words, the
data. Such estimates must be founded in objective facts     issue before us concerns whether an overly broad
and cannot be generic or conclusory in nature. See Holt     request for admission, deemed true by the trial court,
Atherton Indus., Inc., 835 S.W.2d at 84. Considering        would be legally sufficient evidence to support a trial
this increased evidentiary standard, coupled with Rule      court's judgment for unliquidated damages. A sufficiency
243's requirement that the court hear evidence [*805]       of the evidence question does not require an objection
on unliquidated damages, this sweepingly broad request      at the trial court to be heard on appeal. See Tex. R. App.
for admission is not sufficient to constitute conclusive    P. 33.1(d) (insufficiency of evidence complaint may be
evidence of the statement that it contains.                 made for first time on appeal).

Preservation of Issue on Appeal                             As no evidence other than this request for admission
                                                            exists supporting the Appellees' [**14] claims for
The Appellees argue that Lucas waived any objection to      unliquidated damages or proving the foreseeability of
the request for admission when he failed to file a timely   such damages, see Mood v. Kronos, 245 S.W.3d 8, 12
written objection to the response, as required by Rule      (Tex. App.—Dallas 2007, pet. denied) HN10
193.1. [**12] See Tex. R. Civ. P. 193.1 HN7 ("A party       ("[C]onsequential damages may not be recovered
must make an objection to written discovery in              unless they are foreseeable and traceable to the
writing—either in the response or in a separate             wrongful act and result from it.") (citing Stuart v. Bayless,
document—within the time for response."). While HN8         964 S.W.2d 920, 921 (Tex. 1998)), the evidence is
it is true that typically any challenge to a request for    neither legally nor factually sufficient to support the
admission must be in compliance with Rule 193.1, the        default judgment's unliquidated damages award. See
facts at issue here present a unique situation. The         City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.
question of a deemed admission's overbreadth only           2005); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
arises when a request for admission has been deemed         We sustain Lucas's second point on appeal.
admitted, which, by definition, occurs after a party has
failed to timely respond or object to the request. No       Because we agree with Lucas that the evidence is
request for admission would be deemed admitted if the       insufficient to support the trial court's unliquidated
responding party had objected in writing within the         damages award, we need not consider Lucas's first and
parameters of Rule 193.1. Therefore, were we to require     third issues. See HN11 Tex. R. App. P. 47.1 (stating that
a party to object in writing to a request for admission's   court of appeals must only address [*806] issues
overbreadth in order to preserve the issue on appeal,       necessary to final disposition of appeal).
no appellate court would ever face the issue. Several
other courts of appeals have, however, squarely             CONCLUSION
addressed whether a "sweepingly broad" request for
admission may become a deemed admission when a              Because we hold that the evidence is legally and
party fails to respond. See In re Estate of Herring, 970    factually insufficient to support the trial court's damages
S.W.2d at 589 (addressing "sweepingly broad" request        award, we affirm the issuance of the default judgment,
                                                                                                              Page 6 of 7
                             347 S.W.3d 800, *806; 2011 Tex. App. LEXIS 4600, **14



reverse that portion of the default judgment awarding      Affirmed in Part; Reversed and Remanded in Part
the Appellees unliquidated damages, and remand the
case for further [**15] proceedings consistent with this   Filed: June 15, 2011
opinion.
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Henson and
Goodwin




                                                                                                    Page 7 of 7
|   | Cited
As of: April 7, 2015 5:54 PM EDT


                                              Marquez v. Greig
                                  Court of Appeals of Texas, First District, Houston
                                           August 9, 2012, Opinion Issued
                                                NO. 01-10-01118-CV

Reporter
2012 Tex. App. LEXIS 6551; 2012 WL 3228710

DAVE MARQUEZ, Appellant v. NIKKI GREIG, ON                    Outcome
BEHALF OF TEXAS STARS CHEERLEADING,
Appellee                                                      The default judgment was reversed and the case
                                                              remanded for further proceedings.
Prior History: [*1] On Appeal from the 400th District
Court, Fort Bend County, Texas. Trial Court Case No.          LexisNexis® Headnotes
09-DCV-176744.
                                                                 Civil Procedure > ... > Default & Default Judgments >
Core Terms                                                       Default Judgments > Entry of Default Judgments
                                                                 Civil Procedure > Appeals > Record on Appeal
service of process, trial court, certificate, default            Civil Procedure > Appeals > Reviewability of Lower Court
judgment, forwarded, face of the record, per curiam,             Decisions > Timing of Appeals
nonresident, indicates
                                                              HN1 Generally, if a defendant does not timely file an
Case Summary                                                  answer and a return of service has been on file for ten
                                                              days, the plaintiff may take judgment by default, Tex. R.
                                                              Civ. P. 107(h) & 239. The defendant can prevail on a
Procedural Posture
                                                              restricted appeal only if (1) it filed notice of the restricted
The 400th District Court, Fort Bend County, Texas,            appeal within six months after the judgment was signed,
rendered a default judgment in favor of appellee teacher      (2) it was a party to the underlying lawsuit, (3) it did not
on behalf of a cheerleading school. Appellant buyer           participate in the hearing that resulted in the judgment
appealed.                                                     complained of and did not timely file any postjudgment
                                                              motions or requests for findings of fact and conclusions
Overview                                                      of law, and (4) error is apparent on the face of the
The buyer argued that the error was apparent on the           record, Tex. R. App. P. 26.1(c) & 30. The face of the
face of the record because it showed that the Secretary       record consists of all the papers on file in the appeal.
of State forwarded the citation and petition to an
incorrect address. The appellate court found that there          Civil Procedure > ... > In Rem & Personal Jurisdiction > In
were numerous indications in the record that the buyer's         Personam Actions > Long Arm Jurisdiction
address was "2155 North Fairview," but the Secretary             Civil Procedure > ... > Service of Process > Methods of
of State's certificate indicated that the citation and           Service > Service on Agents
petition were forwarded to "2155 Northfairview." The
return receipt indicated that the process sent to that        HN2 For a trial court to have jurisdiction over a
address was "unclaimed." Given the notation on the            nonresident defendant, the Secretary of State must
return receipt and the multiple indications in the record     forward copies of the citation and petition to the
that the buyer's actual address differed, if only slightly,   defendant as required by the long-arm statute. Under
from the address to which the Secretary of State              the long-arm statute, the Texas Secretary of State is an
forwarded service of process, the record did not              agent for service of process on a nonresident defendant
affirmatively show strict compliance with the rules           who engages in business in this state but does not
governing service of process.                                 maintain a regular place of business in this state or a
                                             2012 Tex. App. LEXIS 6551, *1



designated agent for service of process, in any                had represented. The petition asserted multiple causes
proceeding arising out of business done in Texas and to        of action including breach of contract, violations of the
which the nonresident defendant is a party, Tex. Civ.          Texas Deceptive Trade Practices Act, and fraud.
Prac. & Rem. Code Ann. § 17.044(b) (2008). Once the
Secretary of State is served with duplicate copies of          In the petition, Greig identified the Texas Secretary of
process for a nonresident defendant that reflect the           State as the agent for service of process because
nonresident's name and home or home office address,            Marquez lived [*2] at "2155 North Fairview" in Santa
it must immediately mail to the provided address a copy        Ana, California. The citation likewise reflects that
of the process by registered or certified mail with return     Marquez's street address was "2155 North Fairview."
receipt requested, Tex. Civ. Prac. & Rem. Code Ann. §          However, the Secretary of State's certificate of service
17.045(a), (d).                                                of process reflects that copies of the citation and petition
                                                               were forwarded by certified mail to "2155 Northfairview"
  Civil Procedure > ... > Service of Process > Methods of      in Santa Ana, California. The certificate further reflects
  Service > Service on Agents                                  that the return receipt bore a notation of "unclaimed."
                                                               Marquez never answered or otherwise appeared in the
  Civil Procedure > Appeals > Notice of Appeal
                                                               trial court until filing his notice of appeal.
HN3 In a restricted appeal, there is no presumption in
favor of valid service of process. The failure to              Several weeks after the Secretary of State's certificate
affirmatively show strict compliance with the rules            was filed in the trial court, Greig filed a motion for default
governing service of process renders the attempted             judgment. Although the motion acknowledged that the
service invalid and of no effect. However, absent fraud        return receipt bore a notation of "unclaimed," it asserted
or mistake, the Secretary of State's certificate of service    that the Secretary of State had served Marquez with
of process is conclusive evidence that it received and         copies of the citation and petition. The motion stated
forwarded service as required by statute.                      that Marquez's last known address was "2155 North
                                                               Fairview" in Santa Ana, California. A "Plaintiff's
Judges: Panel consists of Justices Bland, Massengale,          Certificate of Last Known Address" signed by Greig's
and Brown.                                                     counsel reflects that same address.

                                                               The trial court held a hearing on Greig's motion for
Opinion by: Michael Massengale
                                                               default judgment. Following the hearing, the trial court
                                                               signed an order granting the motion [*3] and rendering
Opinion                                                        against Marquez a money judgment of $11,048.87 for
                                                               damages, $4,125.00 for attorney's fees, and court costs.
MEMORANDUM OPINION                                             A notice of default judgment was sent to Marquez at
                                                               "2155 North Fairview" in Santa Ana, California.
Appellant Dave Marquez brings this restricted appeal
from a default judgment rendered in favor of appellee          After the default judgment was signed by the trial court,
Nikki Greig on behalf of Texas Stars Cheerleading.             Marquez timely filed notice of a restricted appeal.
Marquez argues that error appears on the face of the
record because the Secretary of State's certificate of         Analysis
service of process indicates that the citation and original
petition were delivered to an incorrect address. We            In his sole issue, Marquez argues that error is apparent
reverse the default judgment and remand for further            on the face of the record because it shows that the
proceedings.                                                   Secretary of State forwarded the citation and petition to
                                                               an incorrect address. He contends that "2155 North
Background                                                     Fairview," as his address appears in Greig's petition, is
                                                               not the same as "2155 Northfairview," as his address
Nikki Greig filed a petition in district court alleging that   appears in the Secretary of State's certificate of service
Dave Marquez had contracted with her to provide dance          of process. Therefore, Marquez argues, the record does
and cheerleading choreography services. She alleged            not show compliance with the rules governing service of
that Marquez performed pursuant to that contract, but          process, the default judgment must be reversed, and
his services were not of the grade and quality that he         the case must be remanded for a new trial.
                                                                                                             Page 2 of 4
                                              2012 Tex. App. LEXIS 6551, *3



Although Greig has not filed an appellee's brief, she has        S.W.2d 884, 885 (Tex. 1985) (per curiam). The failure to
filed a motion to dismiss the appeal. She contends that          affirmatively show strict compliance with the rules
the record demonstrates that Marquez was properly                governing service of process renders the [*6] attempted
served at his home address. This court ordered that              service invalid and of no effect. Uvalde Country Club,
Greig's motion be carried with submission of the case.           690 S.W.2d at 885. However, absent fraud or mistake,
                                                                 the Secretary of State's certificate of service of process
HN1 Generally, [*4] if a defendant does not timely file an       is conclusive evidence that it received and forwarded
answer and a return of service has been on file for ten          service as required by statute. Capitol Brick, Inc. v.
days, the plaintiff may take judgment by default. See            Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986).
TEX. R. CIV. P. 107(h) & 239. The defendant can prevail
on a restricted appeal only if (1) it filed notice of the        Marquez analogizes this case to Royal Surplus Lines
restricted appeal within six months after the judgment           Insurance Co. v. Samaria Baptist Church, 840 S.W.2d
was signed, (2) it was a party to the underlying lawsuit,        382 (Tex. 1992) (per curiam). In that case, the plaintiff
(3) it did not participate in the hearing that resulted in the   unsuccessfully attempted service of process on the
judgment complained of and did not timely file any               defendant's registered agent. Id. at 382. Pursuant to the
postjudgment motions or requests for findings of fact            Texas Non-Profit Corporation Act, the plaintiff then
and conclusions of law, and (4) error is apparent on the         attempted service through the Secretary of State. Id.
face of the record. TEX. R. APP. P. 26.1(c) & 30; Ins. Co.       The address of the defendant's registered agent was
of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per          listed in the Secretary's public records as "1201 Bessie."
curiam). The only matter at issue in this restricted             Id. at 383. However, the Secretary's certificate reflected
appeal is whether error is apparent on the face of the           that it sent the citation and petition to "1201 Bassie,"
record. The face of the record consists of all the papers        and the letter was returned with the notation
on file in the appeal. Norman Commc'ns v. Tex. Eastman           "unclaimed." Id. The defendant did not appear, and the
Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).               trial court rendered a default judgment. Id. at 382. On
                                                                 appeal, the court of appeals reversed the default
HN2 For a trial court to have jurisdiction over a                judgment and remanded for a new trial. Id. at 383. In
nonresident defendant, the Secretary of State must                 [*7] denying the plaintiff's application for writ of error,
forward copies of the citation and petition to the               the Supreme Court noted that "[a] typographical error in
defendant as required by the long-arm statute. Comm'n            the forwarding address typed by the Secretary is
of Contracts of Gen. Exec. Comm. v. Arriba, Ltd., 882            grounds to set aside a default judgment based on
S.W.2d 576, 585 (Tex. App.—Houston [1st Dist.] 1994,             substituted service." Id.
no pet.) [*5] (citing Whitney v. L & L Realty Corp., 500
S.W.2d 94, 96 (Tex. 1973)). Under the long-arm statute,          This case is analogous to Royal Surplus Lines. There
the Texas Secretary of State is an agent for service of          are numerous indications in the record that Marquez's
process on a nonresident defendant who engages in                address is "2155 North Fairview," but the Secretary of
business in this state but does not maintain a regular           State's certificate indicates that the citation and petition
place of business in this state or a designated agent for        were forwarded to "2155 Northfairview." The return
service of process, in any proceeding arising out of             receipt, like the one in Royal Surplus Lines, indicates
business done in Texas and to which the nonresident              that the process sent to that address was "unclaimed."
defendant is a party. See TEX. CIV. PRAC. & REM. CODE            Given the notation on the return receipt and the multiple
ANN. § 17.044(b) (West 2008). Once the Secretary of              indications in the record that Marquez's actual address
State is served with duplicate copies of process for a           differed, if only slightly, from the address to which the
nonresident defendant that reflect the nonresident's             Secretary of State forwarded service of process, we
name and home or home office address, it must                    hold that the record does not affirmatively show strict
immediately mail to the provided address a copy of the           compliance with the rules governing service of process.
process by registered or certified mail with return receipt      See Uvalde Country Club, 690 S.W.2d at 885.
requested. See id. § 17.045(a), (d).                             Accordingly, we sustain Marquez's issue on appeal,
                                                                 reverse the default judgment, and remand the case for
HN3 In a restricted appeal, there is no presumption in           further proceedings. See Royal Surplus Lines, 840
favor of valid service of process. Primate Const., Inc. v.       S.W.2d at 383.
Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam);
Uvalde Country Club v. Martin Linen Supply Co., 690              Conclusion
                                                                                                                 Page 3 of 4
                                          2012 Tex. App. LEXIS 6551, *7



We deny as moot Greig's [*8] motion to dismiss the         reversible error in the trial court's judgment. Accordingly,
appeal. We reverse the judgment and remand the case        the Court reverses the trial court's judgment and
for further proceedings.                                   remands the case to the trial court for further
                                                           proceedings.
Michael Massengale
                                                           The Court orders that the appellee, Nikki Greig, on
Justice                                                    behalf of Texas Stars Cheerleading, pay all appellate
                                                           costs.
JUDGMENT
                                                           The Court orders that this decision be certified below
This case is an appeal from the final judgment signed by   for observance.
the trial court on June 14, 2010. After submitting the
case on the appellate record and the arguments properly    Judgment rendered August 9, 2012.
raised by the parties, the Court holds that there was




                                                                                                           Page 4 of 4
                                                                                                                    Page 1




                                                     2 of 2 DOCUMENTS




Analysis
As of: Mar 30, 2015

                 KENNETH MCCLAIN, Appellant v. USA TODAY NEWSPAPER, USA TODAY
                INTERNET ARTICLE DIVISION, USA TODAY JOURNALIST KEVIN MCCOY,
                   USA TODAY JOURNALIST PAUL OVERBERG, AND DALLAS COUNTY
                                  SHERIFF'S OFFICE, Appellees

                                                     No. 05-08-01123-CV

                          COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                                                 2010 Tex. App. LEXIS 4542


                                                June 17, 2010, Opinion Filed

SUBSEQUENT HISTORY:             Released for Publica-            acknowledged he deliberately and intentionally failed to
tion July 30, 2010.                                              serve the notice of appeal on all parties to the judgment.
Rehearing denied by McClain v. USA Today Newspaper,              It was also clear that he did not intend his May 1st notice
2010 Tex. App. LEXIS 6117 (Tex. App. Dallas, July 19,            of appeal to be a bona fide attempt to invoke the court's
2010)                                                            jurisdiction. The motion to vacate judgment had the same
                                                                 effect as a motion to modify the judgment and was suffi-
PRIOR HISTORY: [*1]                                              cient to extend the time within which to perfect an appeal
   On Appeal from the County Court at Law No. 4, Dal-            under Tex. R. App. P. 26.1. Therefore, the notice of ap-
las County, Texas. Trial Court Cause No. CC08-01140D.            peal was due by July 14, 2008; the litigant's second no-
                                                                 tice of appeal filed on August 7, 2008 was untimely.
CASE SUMMARY:                                                    Although the litigant mistakenly believed he had 90 days
                                                                 from the date on which he filed his motion to vacate
                                                                 judgment to perfect his appeal, the time should have
PROCEDURAL POSTURE: Appellant, a pro se liti-                    been calculated from the date the judgment was signed
gant, sought review of a decision of the County Court at         under rule 26.1(a)(2).
Law No. 4, Dallas County, Texas, granting summary
judgment in favor of appellees, a newspaper and two              OUTCOME: The court dismissed the appeal for want of
journalists. Because the appeal appeared to be untimely,         jurisdiction.
the court directed the parties to file letter briefs address-
ing the court's jurisdiction over the appeal.                    LexisNexis(R) Headnotes

OVERVIEW: The litigant timely filed a notice of ap-
peal with the trial court only. He failed to serve a copy of
the notice of appeal on the other parties to the trial court's   Civil Procedure > Appeals > Reviewability > Notice of
judgment, and failed to file a copy with the appellate           Appeal
court clerk, as required by Tex. R. App. P. 9.5, 25.1(e).        [HN1] Tex. R. App. P. 37.1 requires an appellate clerk to
Twelve days later, he filed a motion to strike his notice        notify the parties of a defect in a notice of appeal so it
of appeal and a motion to vacate judgment. He                    can be remedied.
                                                                                                                      Page 2
                                               2010 Tex. App. LEXIS 4542, *




                                                                JUDGES: Before Justices Richter, Lang-Miers, and
Civil Procedure > Appeals > Reviewability > Time Lim-           Murphy. Opinion By Justice Richter.
itations
[HN2] Absent a filing that extends the deadline, a party        OPINION BY: MARTIN RICHTER
has thirty days from the judgment is signed to file a no-
tice of appeal. Tex. R. App. P. 26.1. If a party timely files   OPINION
a motion to modify the judgment, notice of appeal must
be filed within ninety days after the judgment is signed.       MEMORANDUM OPINION
Tex. R. App. P. 26.1(a)(2).
                                                                    Opinion By Justice Richter
                                                                     This is an attempted appeal from the trial court's or-
Civil Procedure > Appeals > Reviewability > Time Lim-           der granting summary judgment in favor of USA Today
itations                                                        Newpaper, USA Today Internet Article Division, USA
[HN3] The Rules of Appellate Procedure calculate the            Today journalist Kevin McCoy, and USA Today jour-
period within which one must perfect an appeal from the         nalist Paul Overberg (collectively, USA Today). Pro se
time the judgment is signed, not from the filing of a           appellant Kenneth McClain timely filed a notice of ap-
pleading.                                                       peal on May 1, 2008, with the trial court only. He failed
                                                                to serve a copy of the notice of appeal on the other par-
                                                                ties to the trial court's judgment, and failed to file a copy
Civil Procedure > Appeals > Reviewability > Time Lim-           with the appellate court clerk, as required by the rules of
itations                                                        appellate procedure. See TEX. R. APP. P. 9.5, 25.1(e).
[HN4] The rules of appellate procedure provide for addi-
                                                                     Twelve days later, on May 12, 2008, McClain filed a
tional time within which to file a notice of appeal. Tex.
                                                                motion to strike his notice of appeal, a motion to vacate
R. App. P. 26.3.
                                                                judgment, and a motion for findings of fact and conclu-
                                                                sions of law. In his motion to strike notice of appeal,
                                                                McClain stated, "[i]n anticipation of filing my motion to
Civil Procedure > Appeals > Reviewability > Time Lim-
                                                                vacate judgment and motion for finding of fact and con-
itations
                                                                clusions of law, and motion to [*2] strike notice of ap-
[HN5] A notice of appeal filed outside the fifteen-day
                                                                peal, I did not serve defendants yet under T.R.A.P.
period provided by Tex. R. App. P. 26.3 will not invoke
                                                                25.1(e). I will re-file my notice of appeal within 90 days
the appellate court's jurisdiction.
                                                                after my motion to vacate judgment is filed." McClain
                                                                did not intend for his May 1, 2008 notice of appeal to
                                                                invoke the jurisdiction of this Court. McClain acknowl-
Civil Procedure > Parties > Self-Representation >
                                                                edged he deliberately and intentionally failed to comply
Pleading Standards
                                                                with the rules of appellate procedure by not serving a
[HN6] Although we construe pro se pleadings and briefs
                                                                copy of the May 1, 2008 notice of appeal on all parties to
liberally, we hold pro se litigants to the same standards
as licensed attorneys and require them to comply with           the judgment.
applicable laws and rules of procedure. To do otherwise              Furthermore, the May 1, 2008 notice of appeal was
would give a pro se litigant an unfair advantage over a         defective. See TEX. R. APP. P. 9.5, 25.1(e). [HN1] Rule
litigant who is represented by counsel.                         37.1 of the rules of appellate procedure requires an ap-
                                                                pellate clerk to notify the parties of a defect in a notice of
                                                                appeal so it can be remedied. See TEX. R. APP. P. 37.1;
Civil Procedure > Appeals > Reviewability > Time Lim-           see Feist v. Berg, No. 12-04-00004-CV, 2004 Tex. App.
itations                                                        LEXIS 1260, 2004 WL 252785, at *1 (Tex. App.--Tyler
[HN7] The timely filing of a notice of appeal is jurisdic-      Feb. 11, 2004, pet. denied) (mem. op.). However, in this
tional. Tex. R. App. P. 25.1(b).                                case, the appellate clerk did not have the opportunity to
                                                                notify McClain of the defect in his notice of appeal be-
COUNSEL: For APPELLANT: Kenneth McClain,                        cause a copy of the notice was not filed with the appel-
PINE KNOT, KY.                                                  late court clerk. Additionally, it is clear from McClain's
                                                                motion to strike the notice of appeal that he was aware of
For APPELLEE: Greg Long, Assistant District Attorney,           the defect in his notice of [*3] appeal, had an oppor-
Dallas, TX; Laura Lee Prather, Catherine Lewis Robb,            tunity to remedy the defect, and deliberately elected not
Sedgwick, Detert, Moran & Arnold, LLP, Austin, TX.              to do so. It is also clear from his motion to strike appeal
                                                                                                                  Page 3
                                              2010 Tex. App. LEXIS 4542, *


that McClain did not intend his May 1st notice of appeal       [HN3] ("The Rules of Appellate Procedure calculate the
to be a bona fide attempt to invoke the appellate court's      period within which one must perfect [*5] an appeal
jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615,          from the time the judgment is signed, not from the filing
616 (Tex. 1997).                                               of a pleading.") (emphasis in original).
     [HN2] Absent a filing that extends the deadline, a             [HN4] The rules of appellate procedure provide for
party has thirty days from the judgment is signed to file a    additional time within which to file a notice of appeal.
notice of appeal. TEX. R. APP. P. 26.1. If a party timely      See TEX. R. APP. P. 26.3. However, McClain cannot
files a motion to modify the judgment, notice of appeal        obtain the benefit of rule 26.3 because he did not file his
must be filed within ninety days after the judgment is         notice of appeal within fifteen days of the deadline for
signed. TEX. R. APP. P. 26.1(a)(2). McClain's motion to        filing the notice of appeal. Id.; see also Verburgt, 959
vacate judgment had the same effect as a motion to mod-        S.W.2d at 617 (holding motion for extension is implied if
ify the judgment and was sufficient to extend the time         perfecting instrument is filed within fifteen days of its
within which to perfect an appeal. See Ramirez v. Wil-         due date). [HN5] A notice of appeal filed outside the
liams Bros. Constr. Co., Inc., 870 S.W.2d 551, 552 (Tex.       fifteen-day period provided by rule 26.3 will not invoke
App.--Houston [1st Dist.] 1993, no pet.) (any                  the appellate court's jurisdiction. Id.; see also Owusu v.
post-judgment motion which, if granted, results in a sub-      Citibank (South Dakota), N.A., No. 05-09-00834-CV,
stantive change in the original judgment extends the time      2009 Tex. App. LEXIS 7376, 2009 WL 3003187, at *1
for perfecting an appeal). Accordingly, McClain's notice       (Tex.App.--Dallas Sept. 22, 2009, no pet.) (mem. op.).
of appeal was due by July 14, 2008.
                                                                    [HN6] Although we construe pro se pleadings and
      McClain filed his second notice of appeal on August      briefs liberally, we hold pro se litigants to the same
7, 2008. Again, McClain [*4] filed his notice with the         standards as licensed attorneys and require them to com-
trial court only. There is nothing in the record to indicate   ply with applicable laws and rules of procedure. Pena v.
McClain served a copy of the second notice of appeal on        McDowell, 201 S.W.3d 665, 667 (Tex. 2006); Mansfield
the other parties to the trial court's judgment. He did not    State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978);
file a request for an extension of time within which to        Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex.
file his notice of appeal. Because the August 7, 2008          App.--Dallas 2009, pet. denied). [*6] To do otherwise
notice of appeal appeared to be untimely as to the April       would give a pro se litigant an unfair advantage over a
14, 2008 judgment and May 12, 2008 motion to vacate,           litigant who is represented by counsel. Cooper v. Circle
we directed the parties to file letter briefs addressing our   Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693
jurisdiction over the appeal.                                  (Tex. App.--Dallas 2008, no pet.).
     In his letter brief, McClain argued that his May 1,            [HN7] The timely filing of a notice of appeal is ju-
2008 notice of appeal was valid, timely, and sufficient to     risdictional. TEX. R. APP. P. 25.1(b); see Owusu, 2009
perfect his appeal. McClain also argued that his August        Tex. App. LEXIS 7376, 2009 WL 3003187, at *1. Be-
7, 2008 notice of appeal was timely filed because the          cause McClain's first notice of appeal was defective and
motions he filed extended his deadline for filing by           his second notice of appeal was untimely, we do not have
ninety days. The record reflects McClain mistakenly            jurisdiction over this appeal.
believed he had ninety days from the date on which he
                                                                   We dismiss this appeal for want of jurisdiction.
filed his motion to vacate judgment to perfect his appeal,
instead of ninety days from the date the judgment was              MARTIN RICHTER
signed. See TEX. R. APP. P. 26.1(a)(2); see also Farmer
                                                                   JUSTICE
v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995)
|   | Neutral
As of: April 7, 2015 5:56 PM EDT


                                            McDonald v. Newmyer
                                     Court of Appeals of Texas, First District, Houston
                                                       April 6, 1989
                                                   No. 01-88-00188-CV

Reporter
775 S.W.2d 652; 1989 Tex. App. LEXIS 765

FLOYD E. MCDONALD, Appellant v. YVONNE                         Outcome
NEWMYER, Appellee
                                                               The court dismissed appellant movant's appeal on its
Subsequent History:          [**1]      Rehearing Denied       own motion for want of jurisdiction because the appellate
September 14, 1989.                                            record did not affirmatively reflect appellant's timely
                                                               perfection of his appeal.
Prior History: On Appeal from the 335th District Court
Burleson County, Texas, Trial Court.
                                                               LexisNexis® Headnotes
Core Terms
                                                                  Civil Procedure > Appeals > Appellate Jurisdiction >
                                                                  General Overview
cost bond, days, motion for a new trial, perfecting an
appeal, perfect, appellate record, bankruptcy court, trial        Civil Procedure > Appeals > Record on Appeal
court, trial judge, dism'd
                                                               HN1 The appellate record must affirmatively reflect a
                                                               reviewing court's jurisdiction.
Case Summary
                                                                  Civil Procedure > Appeals > Reviewability of Lower Court
Procedural Posture                                                Decisions > Timing of Appeals

Appellant movant sought review of a judgment from the          HN2 A reviewing court has no authority to entertain an
335th District Court, Burleson County (Texas), and filed       appeal where the appellant does not timely perfect the
his cost bond for appeal 346 days after the trial court        appeal.
signed the final judgment.
                                                                  Civil Procedure > Judgments > Relief From Judgments >
                                                                  General Overview
Overview
                                                                  Civil Procedure > Judgments > Relief From Judgments >
Appellant movant filed a motion for a new trial following         Motions for New Trials
the trial court's final judgment. While the motion was
pending, appellee debtor filed bankruptcy proceedings             Civil Procedure > Appeals > Reviewability of Lower Court
                                                                  Decisions > Timing of Appeals
which stayed the district court action, however, the
record did not indicate the date on which appellee filed       HN3 An appellant perfects the appeal by filing a cost
for bankruptcy protection. The bankruptcy court granted        bond, deposit of cash, or affidavit of inability to pay
relief from stay, and the court held that even if it assumed   within 90 days from the date of judgment when a motion
that the stay was in effect from the date the judgment         for new trial is filed. Tex. R. App. P. 40(a), 41(a)(1).
was signed until the date the bankruptcy court granted
relief from stay, appellant did not timely perfect his            Civil Procedure > Appeals > Reviewability of Lower Court
appeal because his cost bond was filed 114 days after             Decisions > Timing of Appeals
the bankruptcy lifted the stay and 346 days after the trial
judge signed the judgment. The court on its own motion,        HN4 The filing of the cost bond is a necessary and
dismissed the appeal for want of jurisdiction.                 jurisdictional step in perfecting an appeal.
                               775 S.W.2d 652, *653; 1989 Tex. App. LEXIS 765, **1



Counsel: Preston C. Goodwin, Hagerman & Seureau,              February 26, 1987. Under ordinary circumstances, this
Spring, for appellant.                                        motion would have been overruled by operation of law
                                                              on April 26, 1987. Tex. R. Civ. P. 329b(c). Appellant
Joan E. Scroggins, Caldwell, for appellee.                    would have had to perfect his appeal by May 11, 1987,
                                                              90 days after the trial judge signed the judgment. Tex.
Judges: Warren, Dunn and Hughes, JJ.                          R. App. P. 41(a)(1). Appellant did not file his cost bond
                                                              until January 22, 1988, 346 days after the trial judge
Opinion by: PER CURIAM                                        signed the judgment.

                                                              The record before us does indicate that, while the
Opinion                                                       motion for new trial was pending, appellee Yvonne
                                                              Newmyer filed bankruptcy proceedings, which stayed
[*653] This Court, on its own motion, dismisses this
                                                              the district court action. See 11 U.S.C. § 362 (1982).
appeal for want of jurisdiction.
                                                              On September 30, 1987, the bankruptcy court granted
HN1 The appellate record must affirmatively reflect our       relief from the stay. (Appellant filed a certified copy of
jurisdiction. University Interscholastic League v. Payne,     this order with the trial court.) There is nothing in the
635 S.W.2d 754, 756 (Tex.App. -- Amarillo 1982, writ          record that indicates when appellee filed for bankruptcy
dism'd); Stegall v. Cameron, 601 S.W.2d 771, 773              protection or how long the stay tolled the appellate
(Tex.Civ.App. -- Dallas 1980, writ dism'd). HN2 We have       timetable. Even if we assume, however, that the stay
no authority to entertain an appeal where the appellant       was in effect from the date the judgment was signed
does not timely perfect the appeal. Wadkins v.                until September 30, 1987, appellant [**3] did not timely
Diversified Contractors, 714 S.W.2d 136, 137 (Tex.            perfect his appeal. Appellant filed his cost bond 114
App. -- Houston [1st Dist.] 1986, no writ). HN3 An            days after the bankruptcy court lifted the stay. That filing
appellant perfects the appeal by filing a cost bond,          was not timely.
deposit of cash, or affidavit of inability to pay within 90
days from the date of judgment when a motion for new          The appellate record does not affirmatively reflect
trial is filed. Tex. R. App. P. 40(a), 41(a)(1). HN4 The      appellant's timely perfection of his appeal..
filing of the cost bond is a necessary and jurisdictional
step in perfecting an appeal. Davies [**2] v. Massey,         We dismiss the appeal.
561 S.W.2d 799, 801 (Tex.1978).                               Panel consists of Justice Warren, Dunn, and Hughes.

Here, the trial court signed its final judgment on February   Judgment rendered and opinion delivered April 6, 1989
10, 1987. Appellant filed his motion for new trial on




                                                                                                              Page 2 of 2
                                                                                                                     Page 1




Caution
As of: Mar 30, 2015

                Memorial Hospital Of Galveston County, et al., Petitioners, v. Zelma Lee Gillis, Re-
                                                  spondent

                                                       No. C-6709

                                           SUPREME COURT OF TEXAS

                               741 S.W.2d 364; 1987 Tex. LEXIS 391; 31 Tex. Sup. J. 77


                                              November 18, 1987, Decided

SUBSEQUENT HISTORY:                [**1]                      court grants Memorial Hospital's motion for rehearing,
                                                              and without hearing oral argument reverses the judgment
PRIOR HISTORY:          FROM GALVESTON                        of the court of appeals and vacates [**2] the judgment
COUNTY, FIRST DISTRICT.                                       of the trial court. The opinion of the court of appeals
                                                              conflicts with TEX. R. CIV. P. 306(a).
                                                                  The procedure for obtaining relief from a dismissal
COUNSEL: Petitioner: Mr. Scott Lyford, Office of the
                                                              for want of prosecution is set forth in TEX. R. CIV. P.
Atty., Galveston Co.
                                                              165a. In pertinent part, Rule 165a states:
Respondent: Mr. Scott A. Sanes, Hardy, Milutin &
                                                                        [a] motion to reinstate shall set forth
Johns.
                                                                     the grounds therefor and be verified by
                                                                     the movant or his attorney. It shall be filed
OPINION BY: PER CURIAM
                                                                     with the clerk within 30 days after the or-
                                                                     der of dismissal is signed or within the
OPINION
                                                                     period provided by Rule 306a.
      [*365] Forty days after the trial court had dis-
missed her worker's compensation suit for want of pros-
ecution, Zelma Lee Gillis filed an unverified motion to       It is undisputed that Gillis' motion was not filed within
reinstate. Gillis' motion stated the nature of her action,    thirty days of the signing of the order dismissing her ac-
explained the cause for the delay in prosecution, and         tion. The question is whether it was filed within the time
claimed that her suit had merit. Following a hearing on       period provided by TEX. R. CIV. P. 306a. Rule 306a
her motion, the trial court reinstated her action. The rec-   provides that a party who did not have notice or
ord does not reflect what transpired at that hearing, and     knowledge of a judgment or order may be afforded thirty
the order reinstating the cause does not recite the trial     days from the date he acquired such notice or knowledge
court's findings or the grounds for reinstatement. The        in order to invoke the trial court's plenary jurisdiction,
action later went to trial, where Gillis had judgment on a    provided that he can:
jury verdict awarding some $ 52,000 for her injuries. The                . . . prove in the trial court, on sworn
court of appeals affirmed. 731 S.W.2d 692. On Sep-                    motion and notice, the date on which the
tember 19, 1987, we refused Memorial Hospital's appli-                party or his attorney first either received a
cation for writ of error, finding no reversible error. The            notice of the judgment or acquired actual
                                                                                                                 Page 2
                                     741 S.W.2d 364, *; 1987 Tex. LEXIS 391, **;
                                                 31 Tex. Sup. J. 77

       knowledge of the signing and that this                 reinstatement hearing. Gillis supplied the court of ap-
       [**3] date was more than twenty days                   peals with a supplemental transcript, which contained a
       after the judgment was signed.                         copy of the [**4] postcard notices sent by the district
                                                              clerk to the attorneys for the parties in order to notify
                                                              them of the dismissal. See TEX. R. CIV. P. 306a (3). The
TEX. R. CIV. P. 306a (5). Compliance with the time pe-        postcards indicate the date of dismissal and the date upon
riods prescribed by these rules is a jurisdictional prereq-   which the postcards were sent. However, there is nothing
uisite. Unless a party establishes in the manner pre-         to indicate that the trial court considered these postcard
scribed by the rule that he had no notice or knowledge of     notices at the hearing, nor is there anything in the record
the judgment, the general rule prevails: a trial court's      to negate the possibility that Gillis or her attorney ac-
power to reinstate a cause after dismissal expires thirty     quired actual knowledge of the dismissal within twenty
days after the order of dismissal is signed. Harris           days of its signing. Rule 306a plainly requires that this
County v. Miller, 576 S.W.2d 808 (Tex. 1979).                 proof be made in the trial court, not the court of appeals.
                                                              Since Gillis did not establish the applicability of Rule
     There is nothing in the record to indicate that Gillis
                                                              306a (4) in the trial court in the manner prescribed by the
sustained her burden of proving to the trial court that she
                                                              rule, the trial court was without jurisdiction to reinstate
had no notice or knowledge of the order dismissing her
                                                              her cause upon a motion filed forty days after dismissal.
cause within twenty days of its rendition. In her motion
                                                              The subsequent judgment in Gillis' favor was therefore a
for reinstatement, Gillis did not allege that she had no
                                                              nullity, and the court of appeals erred in affirming it.
notice or [*366] knowledge of the order. The order
granting her motion for reinstatement does not recite that        The judgment of the court of appeals is reversed,
Gillis had no notice or knowledge of the dismissal. No        and the judgment of the trial court in Gillis' favor is va-
statement of facts has been brought before us that would      cated. The trial court's order dismissing Gillis' cause for
indicate that Gillis sustained her burden of proof at the     want of prosecution is reinstated.
                                                                                                                Page 1




Caution
As of: Mar 30, 2015

                 OSCAR ORTIZ, Appellant, v. AVANTE VILLA AT CORPUS CHRISTI, INC.,
                                               Appellee.

                                              NUMBER 13-96-030-CV

                   COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS
                                          CHRISTI

                                    926 S.W.2d 608; 1996 Tex. App. LEXIS 3302


                                              June 13, 1996, delivered
                                                June 13, 1996, filed

SUBSEQUENT HISTORY:                [**1] Released for       judgment, and plaintiff appeal. Upon our examination of
Publication July 18, 1996. Rehearing Overruled August       the transcript we questioned the finality of the initial
29, 1996.                                                   default judgment, which, if it were final, would preclude
                                                            our jurisdiction over the later summary judgment. The
PRIOR HISTORY:           On appeal from the 319th Dis-      parties submitted briefs on the issue. We hold the default
trict Court of Nueces County, Texas.                        judgment was a final appealable judgment and dismiss
                                                            this attempted appeal from the summary judgment [**2]
                                                            for want of jurisdiction.
COUNSEL: Rene Rodriguez, 433 S. Tancahua, Corpus
                                                                  The trial court signed a "FINAL JUDGMENT BY
Christi, TX 78401.
                                                            DEFAULT" in favor of appellant on January 9, 1995,
                                                            and appellee received notice within 20 days. See TEX. R.
Carlos Villarreal, 1100 First City Tower II, 555 North
                                                            CIV. P. 306a(4). Appellee filed its motion for new trial
Carancahua, Corpus Christi, TX 78478.
                                                            February 21 -- 43 days after the default judgment was
                                                            signed. Rule 329b provides that a motion for new trial
JUDGES: Before Chief Justice Seerden, and Justices
                                                            must be filed within 30 days after the signing of the
Dorsey and Chavez
                                                            judgment, and the court has plenary power to grant a new
                                                            trial for only 30 days after the judgment has been signed
OPINION
                                                            if no motion for new trial is filed. See id. 329b(a), (d).
                                                            There can be only one final judgment in a cause. Id. 301.
 [*610] OPINION
                                                            If the default judgment is final, any later action by the
    Opinion Per Curiam                                      trial court is void, including the subsequent summary
                                                            judgment.
     The question presented is whether a default judg-
ment is final. Oscar Ortiz, individually and on behalf of        Appellee contends the default judgment was not fi-
the estate of Feliciana Ortiz, and three siblings sued      nal for several reasons, concluding that the trial court had
Avante Villa for the death of their mother while she was    jurisdiction to grant its motion for new trial although
in the defendant's care. A default judgment was granted     filed and acted on beyond the 30 day limit. We will ad-
the plaintiffs but, upon motion of the defendant, a new     dress each of appellee's arguments about why the default
trial was granted. The defendant later took a summary       judgment is not final.
                                                                                                                   Page 2
                                   926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, **


                                                               judgment provides, "Plaintiffs are allowed such writs and
ALLEGED   INADEQUACY    OF                  JUDGMENT'S         process as may be necessary in the enforcement and col-
"MOTHER HUBBARD" CLAUSE                                        lection of this judgment," and is entitled, "FINAL
                                                               JUDGMENT BY DEFAULT." Both of these provisions
     A judgment must dispose of all parties and all issues
                                                               indicate the judgment was intended to be a final judg-
before the trial [**3] court in order for it to be consid-
                                                               ment. See Continental Airlines, 39 Tex. Sup. Ct. J. at
ered final and appealable. Park Place Hosp. v. Estate of
                                                               469.
Milo, 909 S.W.2d 508, 510 (Tex. 1995). When a judg-
ment is entered at the conclusion of a trial on the merits,         The default judgment here was granted with the in-
"it will be presumed for appeal purposes that the court        tent to dispose of all parties and all issues, and the judg-
intended, and did, dispose of all parties legally before it    ment disposed of all parties and claims raised by the
and of all issues made by the pleadings" and to be final.      pleadings. It does not fail to be a final judgment because
Northeast Independent School District v. Aldridge, 400         the Mother Hubbard clause is deficient.
S.W.2d 893, 898 (Tex. 1966). However, a default judg-
ment is not presumed to be a final judgment. Houston           ALLEGED AMBIGUITY RISING FROM UNASCER-
Health Clubs v. First Court of Appeals, 722 S.W.2d 692,        TAINABLE AWARD
693 (Tex. 1986). Instead we must consider the language
                                                                    Judgments must be sufficiently certain so a ministe-
of the judgment, the record as a whole, and any relevant
                                                               rial officer may determine the parties' rights under the
conduct of the parties to determine whether the trial court
                                                               judgment in order to carry it into execution. Stewart v.
intended to dispose of all [*611] parties and issues.
                                                               USA Custom Paint & Body Shop, 870 S.W.2d 18, 20
Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 39
                                                               (Tex. 1994). If the amount awarded by the judgment
Tex. Sup. J. 468, 469 (1996).
                                                               cannot be determined, the judgment is interlocutory. H.E.
     The five plaintiffs in this case sued the defendant for   Butt Grocery Co. v. Bay, 808 S.W.2d 678, 680 (Tex.
damages for the wrongful death of their mother. Under          App.--Corpus Christ [**6] 1991, writ denied). Appel-
the survival statute, they also sought money damages that      lee's next two complaints attack the finality of the default
the mother would have been entitled to had she lived.          judgment on grounds that it is ambiguous and awards an
There was only one defendant. The default judgment             unascertainable amount.
[**4] awarded money damages to the plaintiffs. It dis-
posed of all claims the plaintiffs were making on the sole     Award of Prejudgment Interest
defendant. There were no issues raised in the pleadings
                                                                    Appellee contends that the "FINAL JUDGMENT
that were not disposed of in the judgment; the judgment
                                                               BY DEFAULT" is not final because it does not state how
gave full and complete relief for all plaintiffs against all
                                                               prejudgment interest should be calculated. However, this
defendants.
                                                               is a wrongful death suit and the method of calculating
     Appellee argues the Mother Hubbard clause in the          prejudgment is established by statute. See TEX. REV.
default judgment under review is deficient because it          CIV. STAT. ANN. art. 5069-1.05 § 6(a) (Vernon Supp.
recites, "All relief not specifically requested 1 herein is    1996). When the rate and means of calculating interest is
hereby denied." However, a Mother Hubbard clause be-           a matter of law, it need not be stated in the judgment.
comes critical when the specific relief awarded in the
                                                                    We have held that a judgment is interlocutory if it
judgment is less than that sought in the pleadings, and
                                                               awards prejudgment interest but fails to specify which of
the "catch all" clause sweeps out those claims that were
                                                               two distinct but potentially applicable methods should be
not specifically reached. The Mother Hubbard clause is
                                                               used to calculate the interest. H.E Butt Grocery, 808
not essential in the default judgment under consideration
                                                               S.W.2d at 680-81. However, we specifically noted that
because all claims for relief are addressed in that judg-
                                                               the suit did not involve a wrongful death claim. Id. at
ment.
                                                               680. The distinction between a suit based on a contract
                                                               and a wrongful death suit is significant because there is
       1 We emphasize the word "requested" to show
                                                               only one method of calculating prejudgment interest in a
       how this clause differs from a typical Mother
                                                               wrongful death case. See id. at 681.
       Hubbard clause. Cf. Mafrige v. Ross, 866
       S.W.2d 590, 590 n. 1 (Tex. 1993) ("A Mother                 Amount [**7]       of Award to Each Party
       Hubbard clause generally recites that all relief not
                                                                    Appellee further argues that the default judgment is
       expressly granted is denied.")
                                                               not final because it does not specifically allocate how the
      [**5] We must consider the judgment in its en-           total judgment is [*612] to be divided among the ap-
tirety and look beyond the putative Mother Hubbard             pellants. Appellee primarily supports its argument with
clause. Martinez, 875 S.W.2d at 313-14. The default            Mullen v. Roberts, 423 S.W.2d 576 (Tex. 1968).
                                                                                                                    Page 3
                                   926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, **


     The Mullen case involved plaintiffs requesting spe-       However, the citation identifies the document served as
cific money damages in differing amounts under separate        "the PLAINTIFFS' ORIGINAL PETITION," which is
causes of action based on dissimilar theories of recovery.     exactly how the petition is entitled. Later in the citation,
Mullen, 423 S.W.2d at 578 (some plaintiffs sued for            the petition is abbreviated as "PLTFS' ORIGINAL PET."
breach of contract but others sued for fraud). The Mullen      The return of service refers to the petition as "the Petition
court found the aggregate award at variance with the           attached" to the citation. These descriptions of the doc-
plaintiffs' petition because they pleaded separate and         ument served meet the requirements of Rule 107 Id.; see
distinct causes of action seeking damages appropriate to       also Herbert v. Greater Gulf Coast Enters., Inc., 915
their particular claims. Id. at 578-79.                        S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995,
                                                               n.w.h.); Woodall v. Lansford, 254 S.W.2d 540, 543 (Tex.
      In the present case, appellants are jointly suing over
                                                               Civ. App--Fort Worth 1953, no writ).
the death of their mother. The more analogous case is
Lewis v. Hall, 271 S.W.2d 447 (Tex. Civ. App.--Fort                 Finally, appellee contends that it is misnamed in the
Worth 1954, writ ref'd n.r.e.). The Lewis case involved a      citation and return of service. However, the citation iden-
summary judgment awarding an aggregate sum to the              tifies appellee as "AVANTE VILLA AT CORPUS
legatees of Lena Hall. As in our case, the appellants in       CHRISTI, INC." Appellee is later identified as
Lewis complained that "the judgment does not apportion         "AVANTE VILLA @ CORPUS CHRISTI, [**10]
[**8] any particular amounts to the individual appel-          INC." in the style of the case and as "AVANTE VILLA
lees." The Lewis court held, "It is of no concern of ap-       AT CORPUS CHRISTI" in the return Of service. Ap-
pellant how the various appellees divide up the money,         pellee contends that this is improper because of the
or if they should get into litigation among themselves         omission of the accent from "Avante," because of the
over such division." Id. at 451. We agree. The "FINAL          substitution of the symbol "@" for the word "at," and
JUDGMENT BY DEFAULT" resolves appellee's liabil-               because of the omission of "Inc." We hold that these de-
ity on the appellants' joint claims. How much each plain-      fects do not invalidate service.
tiff receives in what capacity may be resolved by inter-
                                                                    A default judgment cannot withstand attack unless
pleader or in another forum; it should not interfere with
                                                               the record affirmatively" [*613] shows strict compli-
the enforceability of the judgment.
                                                               ance with rules for service of process. Primate Constr.,
                                                               Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Howev-
ALLEGED IMPROPER SERVICE
                                                               er, strict compliance does not require "obeisance to the
    Finally, appellee attacks the default judgment by          minutest detail." Herbert, 915 S.W.2d at 871. Errors such
claiming that appellants' service of process was inade-        as mistaken capitalization in the defendant's name and
quate. Appellee argues that the return of service does not     spelling errors too minor to raise any doubt that the cor-
identify the method of service or the document served,         rect person was served are insufficient to invalidate ser-
does not state how many copies of the petition were            vice. See McDonough v. Williamson, 742 S.W.2d 737,
served, and does not properly name appellee.                   740 (Tex. App.--Houston [14th Dist.] 1987, no writ);
                                                               Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex.
     The return of service recites that it was executed "by
                                                               App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). The
delivering to AVANTE VILLA AT CORPUS CHRIST
                                                               omission of the accent mark and the substitution of the
BY DELIVERING TO PRENTICE HALL 2 BY DE-
                                                               symbol "@" for the word "at" are akin to the errors that
LIVERING TO PAT WIGGINS OPERATIONS SPE-
                                                               [**11] do not invalidate service. Moreover, omission of
CIALIST." The return of service states the manner of
                                                               a corporate designation from the return of service does
service as required by Rule 107. See TEX. R. CIV. P.
                                                               not invalidate service when the citation and attached pe-
107.
                                                               tition both fully name the defendant with the proper des-
                                                               ignation. See Stephenson v. Corporate Servs., Inc., 650
       2      Appellee has not complained before this
                                                               S.W.2d 181, 183 (Tex. App--Tyler 1983, writ ref'd n.r.e.).
       court or before the trial court that Prentice Hall
                                                               We hold that service is facially valid.
       was not its registered agent as the citation and pe-
       tition both suggest.
                                                               CONCLUSION
      [**9] Appellee next claims the citation is defec-
                                                                   We hold that the "FINAL JUDGMENT BY DE-
tive because it does not state how many copies of the
                                                               FAULT" was the final judgment in this case. Without a
petition were served with the citation. We find no such
                                                               timely motion for new trial the trial court had only 30
requirement that the return of service state how many
                                                               days from the date the judgment was signed to grant a
copies of the petition accompany the citation.
                                                               new trial, and the motion for new trial must be filed
     Next, appellee argues that the return of service does     within 30 days of the signing of the judgment. TEX. R.
not "properly state the name of the item that was served."     CIV. P. 306a(4), 329b(d). Once the 30 days had run,
                                                                                                                 Page 4
                                    926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, **


appellee's remedies against the default judgment were                Because there can be [**12] only one final judg-
restricted to a writ of error filed in this court or a bill of   ment in a cause, and the default judgment was final, we
review filed in the trial court. McEwen v. Harrison, 162         dismiss this appeal from the purported summary judg-
Tex. 125, 345 S.W.2d 706, 710-11 (Tex. 1961). Because            ment for want of jurisdiction.
we cannot construe the motion for new trial as a bill of
                                                                     PER CURIAM
review, we hold that the trial court had no authority to set
aside the default judgment or to grant the subsequent                Opinion delivered and filed on this
summary judgment.
                                                                     the 13th day of June, 1996.
                                                                                                               Page 1




                                                5 of 7 DOCUMENTS




Questioned
As of: Mar 30, 2015

                         Payne & Keller Company, Appellant, v. Peggy A. Word, Appellee

                                                 No. A14-86-712-CV

                        COURT OF APPEALS OF TEXAS, Fourteenth District, Houston

                                     732 S.W.2d 38; 1987 Tex. App. LEXIS 7231


                                                May 7, 1987, Decided
                                                 May 7, 1987, Filed

PRIOR HISTORY:          [**1]    Appeal from the            by the pleadings. The court modified the judgment by
295th District Court of Harris County, Cause No.            excluding $ 36,630.25 awarded as prejudgment interest.
85-33051.                                                   The court affirmed the trial court's judgment.

CASE SUMMARY:                                               OUTCOME: The court affirmed the default judgment
                                                            entered against appellant employer in an action regarding
                                                            an automobile collision with appellant's employee be-
PROCEDURAL POSTURE: Appellant employer                      cause the service of process was not defective, and ap-
sought review of a judgment from the 295th District         pellant did not timely file its motion for new trial.
Court of Harris County (Texas), which entered a default
judgment against appellant in an action regarding an au-    LexisNexis(R) Headnotes
tomobile collision with appellant's employee.

OVERVIEW: The trial court entered a default judgment
against appellant employer in an action regarding an au-    Civil Procedure > Pleading & Practice > Service of
tomobile collision with appellant's employee. Appellant     Process > General Overview
challenged the default judgment on several points of er-    [HN1] In the absence of statutory direction as to the
ror. On appeal, the court held that the default judgment    method of signing, a constable's printed signature strictly
was not void because the constable's printed signature on   complies with Tex. R. Civ. P. 107.
the citation complied with Tex. R. Civ. P. 107. Next, the
court held that the constable's minor misspelling of reg-
istered agent's name was not a sufficient indication that   Civil Procedure > Pleading & Practice > Service of
the wrong person was served with process. The court         Process > General Overview
found the trial court properly denied appellant's motion    [HN2] An affirmative showing of compliance with Tex.
for new trial because it was not timely filed. The court    R. Civ. P. 107 is not defeated merely because a constable
found appellee's evidence that supported her claim for      fails to cross out the word defendant on a preprinted
unliquidated damages was presumably properly authen-        form.
ticated and admissible because appellant did not demon-
strate to the contrary. The court found that the trial
court's award of prejudgment interest was not supported
                                                                                                                     Page 2
                                    732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, **


Civil Procedure > Judgments > Relief From Judgment
> Motions for New Trials                                        JUDGES: Chief Justice J. Curtiss Brown and Justices
[HN3] Tex. R. Civ. P. 329b provides that a motion for           Robertson and Cannon.
new trial must be filed within thirty days after a judg-
ment is signed.                                                 OPINION BY: CANNON

                                                                OPINION
Civil Procedure > Pleading & Practice > Motion Prac-
                                                                      [*39] This is an appeal by writ of error from a de-
tice > General Overview
                                                                fault judgment. In five points of error, appellant com-
Civil Procedure > Judgments > Relief From Judgment
                                                                plains that: (1) the return of citation is defective; (2) the
> Motions for New Trials
                                                                damages awarded by the judgment are not supported by
[HN4] Tex. R. Civ. P. 306a(4) provides that if a party
                                                                the pleadings, nor the evidence; and (3) the motion for
does not receive notice of a judgment within 20 days of
                                                                new trial was erroneously denied. We agree that some of
the signing thereof, then the time periods controlling the
                                                                the damages are unsupported by the pleadings, and, ac-
filing of a motion for new trial shall begin on the date
                                                                cordingly, modify the judgment of the court below and
that the party or his attorney receives the notice or actual
                                                                affirm it as modified.
knowledge of the signing.
                                                                     The cause of action arose from an automobile colli-
                                                                sion between appellee, Peggy Word, and Richard H.
Civil Procedure > Judgments > Relief From Judgment              Jones (Jones). Appellee filed suit against appellant,
> Motions for New Trials                                        Payne & Keller Company, on June 4, 1985, alleging that
[HN5] In order to establish the applicability of Tex. R.        her car was struck from the rear by Jones's vehicle. Fur-
Civ. P. 306a(4), appellant is required to prove in the trial    ther, she alleged, at the time of the collision, Jones was
court, on sworn motion and notice, the date on which the        in the course and scope of his employment for appellant.
party or his attorney first either receives the notice of the   Appellee pleaded as damages her medical expenses; past
judgment or acquires actual knowledge of the signing,           and future [**2] lost wages; past and future physical
and that this date is more than 20 days after the judgment      pain and mental anguish; court costs; and interest on the
is signed. Tex. R. Civ. P. 306a(5).                             judgment.
                                                                     The petition was served on appellant's registered
                                                                agent, Philippe Petitfrere, on June 19, 1985. Appellant,
Evidence > Authentication > Self-Authentication
                                                                however, did not answer. On January 10, 1986, appellee
[HN6] Tex. R. Evid. 902(10)(a) provides that records
accompanied by an affidavit are admissible subject to           filed a supplemental petition asking for prejudgment
certain conditions, which are that the records and affida-      interest. This supplemental petition was not served on
                                                                appellant.
vit be filed with the clerk at least 14 days prior to the
date trial commences, and that the notice of the filing be           On January 24, 1986, a default judgment was en-
served on the opposing party. This rule, however, does          tered against appellant for $ 285,630.25 plus post judg-
not preclude authentication of evidence by other means          ment interest and court costs. The judgment recited that
that do not have the 14-day notice requirement. Tex. R.         the cause of action was unliquidated and that appellee
Evid. 901.                                                      was entitled to damages upon [*40] good and suffi-
                                                                cient evidence presented to the court. Included in the
                                                                judgment was the sum of $ 35,630.25 for prejudgment
Civil Procedure > Pleading & Practice > Service of              interest. Appellant filed an untimely motion for new trial
Process > General Overview                                      on March 27, 1986, which was not granted. Appellant's
Civil Procedure > Remedies > Judgment Interest >                appeal by writ of error was subsequently filed.
Prejudgment Interest
[HN7] New citation is necessary for a party who has not              In point of error one, appellant maintains that the
appeared when plaintiff by an amended petition seeks a          default judgment is void because the constable's return
more onerous judgment than prayed for in the original           fails to state the name of the constable who executed the
pleading.                                                       service of citation as required by Tex. R. Civ. P. 107. In
                                                                support of this point, appellant relies on our case, [**3]
COUNSEL: Rodney P. Bridgers, Jr., for Plaintiff or              Houston Pipe Coating Co., Inc. v. Houston Freight-
Petitioner.                                                     ways, Inc., 679 S.W.2d 42 (Tex. App. -- Houston [14th
                                                                Dist.] 1984, writ ref'd n.r.e.), wherein we stated that Rule
Michael C. Neel, For Defendant or Respondent.                   107 requires that the return must be signed by the sheriff
                                                                or constable or by a deputy who indicates for whom he
                                                                                                                   Page 3
                                    732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, **


or she acted as deputy. We acknowledge that Houston           petition alleged that the registered agent was "Henry
Pipe Coating Co., Inc. is the applicable rule of law in       Bunting, Jr." Thus, the supreme court held, the record
this case. However, contrary to appellant's assertions, the   did not reflect strict compliance with the rules of civil
citation and officer's return satisfies the requirements of   procedure relating to issuance, service, and return of ci-
Houston Pipe Coating Co., Inc.                                tation. In Faver v. Robinson, 46 Tex. 204 (1876) (cited in
                                                              Uvalde Country Club), a default judgment was reversed
     In Houston Pipe Coating Co., Inc., 679 S.W.2d at
                                                              and remanded because suit was brought against John R.
45, we held: [HN1] "In the absence of statutory direction
                                                              Favers, citation was issued to John R. Favers, and the
as to the method of signing, Constable Maxon's printed
                                                              return indicated that John R. Favers was served with the
signature strictly complies with Rule 107." Here, the ci-
                                                              petition. However, a default judgment was taken against
tation and officer's return was marked with a file stamp
                                                              John R. Faver. The court stated that a petition, citation,
that stated:
                                                              and service against Favers does not warrant a judgment
                                                              by default against Faver. In Hendon v. Pugh, 46 Tex. 211
          1985 Jun 19 PM 1:57
                                                              (1876) (cited in Uvalde Country Club), a default [**6]
            R.C. Martinez                                     judgment was reversed and remanded because the return
                                                              indicated that service was on [*41] "J.N. Hendon."
          Constable,     Precinct    No.   6Harris            However, the defendant, against whom judgment was
       County, Texas
                                                              rendered, was J.W. Hendon. The court held that the re-
                                                              turn failed to show, with reasonable certainty, that the
                                                              citation was served on the defendant in the suit. Clearly,
Thus we find, in accordance with the holding of Houston
                                                              in these cases, there is some uncertainty concerning
Pipe Coating Co., Inc., that Constable Martinez's printed     whether the person against whom judgment was taken, or
signature strictly complies with Tex. R. Civ. P. 107. Point   who was served as the registered agent, was the correct
of error one is overruled.
                                                              person.
     In point of error two, appellant complains [**4]
                                                                   Here, however, there is no uncertainty. The petition
that the return fails to correctly set forth the manner of
                                                              and citation both indicate that the registered agent was
service as required by Tex. R. Civ. P. 107 because the        "Philippe Petitfrere." The constable's minor misspelling
return indicates that the wrong individual was served in      of Petitfrere's name is not a sufficient indication that ser-
the wrong capacity. Specifically, appellant asserts that
                                                              vice was not had upon the correct person. We find that
the petition and citation state that service is to be on
                                                              the face of the record reflects strict compliance with Tex.
Payne & Keller Company, by serving its registered
                                                              R. Civ. P. 107.
agent, Philippe Petitfrere (Petitfrere). However, the of-
ficer's return states that service was executed "by deliv-         Further, we find no merit in appellant's argument
ering to Philipee Petitfreere defendant, . . . ." Thus, ap-   that the return does not reflect that Petitfrere was served
pellant argues, because the registered agent's name was       in the correct capacity. In considering the record as a
misspelled by the officer, and because the word "de-          whole, including the original petition, the citation, and
fendant," preprinted on the citation and return form, ap-     the return, we find that service was had upon appellant
pears after Petitfrere's name, strict compliance with Tex.    by delivering citation and petition to its registered agent,
R. Civ. P. 107 is not shown and the default judgment is       [**7] Philippe Petitfrere. Moreover, [HN2] an affirm-
void.                                                         ative showing of compliance with Tex. R. Civ. P. 107
                                                              will not be defeated merely because the constable failed
     In arguing for reversal on the basis of the mis-
                                                              to cross out the word "defendant" on a preprinted form.
spelling of Petitfrere's name by the deputy, appellant
                                                              See Houston Pipe Coating Co., Inc., 679 S.W.2d at 44-45
relies on Uvalde Country Club v. Martin Linen Supply
                                                              (court stated that it was unnecessary to cross out the al-
Co., 690 S.W.2d 884 (Tex. 1985). We find, however, that       ternate mode of service on the return). Point of error two
the facts in Uvalde Country Club and the cases cited          is overruled.
therein are distinguishable from the facts before us. In
Uvalde Country Club, citation was directed to Uvalde               In point of error four, appellant maintains that it sat-
Country Club by serving [**5] its registered agent,           isfied the test in Craddock v. Sunshine Bus Lines, Inc.,
"Henry Bunting." The sheriff's return on the citation         134 Tex. 388, 133 S.W.2d 124 (1939) and thus the trial
showed delivery to "Henry Bunting." However, the orig-        court erred in failing to grant its motion for new trial. We
inal petition alleged that the registered agent was "Henry    note, however, that appellant's motion for new trial was
Bunting, Jr." The Texas Supreme Court stated that the         filed March 27, 1986, sixty-two days after the final
record did not show that the person served with citation,     judgment was signed. [HN3] Texas Rule of Civil Proce-
"Henry Bunting," was authorized to receive service or         dure 329b provides that a motion for new trial must be
that he was connected with the appellant, because the
                                                                                                                 Page 4
                                   732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, **


filed within thirty days after the judgment is signed.         pellee's affidavits from various health providers were not
Thus, appellant's motion for new trial was filed untimely.     properly authenticated and thus, were inadmissible.
      We note, however, that in its motion for new trial,            [*42] Rule 902(10)(a) is an evidentiary rule
appellant alleged that its motion was timely filed under       providing for self-authentication of business records ac-
the provisions of Tex. R. Civ. P. 306a(4). This court has      companied by affidavit. [HN6] It provides that records
previously considered this argument in an attempted di-        accompanied by an affidavit are admissible subject to
rect appeal filed by [**8] appellant and found it to be        certain conditions, two of which are that the records and
without merit. [HN4] Rule 306a(4) provides, in part, that      affidavit be filed with the clerk at least fourteen days
if a party has not received notice of a judgment within        prior to the date trial commences and that notice of the
twenty days of the signing thereof, then the time periods      filing be served on the opposing party. This rule, howev-
controlling the filing of a motion for new trial shall begin   er, does not preclude authentication of evidence by other
on the date that the party or his attorney received notice     means, which do not have the fourteen-day notice re-
or actual knowledge of the signing. [HN5] In order to          quirement. [**10] See Tex. R. Evid. 901. Appellant
establish the applicability of Tex. R. Civ. P. 306a(4),        has failed to obtain a statement of facts from the hearing
appellant was "required to prove in the trial court, on        on damages. Nor has appellant demonstrated that he was
sworn motion and notice, the date on which the party or        precluded from obtaining statement of facts. Without a
his attorney first either received a notice of the judgment    statement of facts to review, we cannot determine
or acquired actual knowledge of the signing and that this      whether appellant's affidavits were authenticated by an-
date was more than twenty days after the judgment was          other means. Thus, we presume the authenticity of the
signed." Tex. R. Civ. P. 306a(5). However, appellant           affidavits supporting appellant's damages. Consequently,
failed to obtain a hearing on this motion or a fact finding    we find competent evidence to support the judgment for
from the trial court stating when appellant received no-       damages. Point of error five is overruled.
tice of the judgment. Without this fact finding, we were
                                                                    In point of error three, appellant complains that the
unable to determine whether appellant met his burden of
                                                               award of prejudgment interest is not supported by the
proving that the provisions of Tex. R. Civ. P. 306a(4)
                                                               pleadings. We agree. Appellee filed a supplemental peti-
applied to extend the time for filing its motion for new
                                                               tion asking for prejudgment interest. Appellant was nev-
trial. Thus, we concluded in our unpublished opinion of
                                                               er served with a copy of the supplemental petition.
Payne Keller Co. v. Word, No. A14-86-394-CV [**9]
                                                               [HN7] New citation is necessary for a party who has not
(Tex. App. -- Houston [14th Dist.] June 26, 1986) that
                                                               appeared when the plaintiff, by an amended petition,
appellant's motion for new trial was filed untimely. Point
                                                               seeks a more onerous judgment than prayed for in the
of error four is overruled.
                                                               original pleading. Weaver v. Hartford Accident and
     In point of error five, appellant maintains that ap-      Indemnity Co., 570 S.W.2d 367, 370 (Tex. 1978). We
pellee offered no competent evidence to support her            hold this rule applies with equal force where a supple-
unliquidated damages. Specifically, appellant complains        mental petition is filed rather than an amended petition.
that the affidavits presented by appellee during the dam-      Consequently, we sustain point of error [**11] three
ages hearing were not served on appellant at least four-       and modify the judgment by excluding the $ 35,630.25
teen days before the hearing as required by Tex. R. Evid.      awarded as prejudgment interest.
902(10)(a). In essence, appellant is maintaining that ap-
                                                                  The judgment of the court below is affirmed as
                                                               modified.
                                                                                                                   Page 1




Positive
As of: Mar 30, 2015

                  WILLIAM ESPINOZA PENA, PETITIONER, v. DAVID MCDOWELL, INDI-
                  VIDUALLY AND IN HIS OFFICIAL CAPACITY, ET AL., RESPONDENTS

                                                       NO. 05-0546

                                            SUPREME COURT OF TEXAS

                              201 S.W.3d 665; 2006 Tex. LEXIS 788; 49 Tex. Sup. J. 1017


                                           August 31, 2006, Opinion Delivered

SUBSEQUENT HISTORY:              Released for Publica-         ment as well as several individual defendants, including
tion October 20, 2006.                                         the Office of the Attorney General, alleging various tort
Related proceeding at Pena v. McDowell, 2007 Tex. App.         claims and violations of his state and federal constitu-
LEXIS 2559 (Tex. App. Tyler, Mar. 30, 2007)                    tional rights. The trial court dismissed Pena's suit with
                                                               prejudice as "frivolous or malicious." The court of ap-
PRIOR HISTORY:             [**1] ON PETITION FOR               peals affirmed the dismissal but reformed the trial court's
REVIEW FROM THE COURT OF APPEALS FOR                           judgment to read "without prejudice." Pena v. McDowell,
THE TWELFTH DISTRICT OF TEXAS.                                 2004 Tex. App. LEXIS 9664, No. 12-03-00141-CV, 2004
Pena v. McDowell, 2004 Tex. App. LEXIS 9664 (Tex.              WL 2423546, at *4 (Tex. App.--Tyler Oct. 29, 2004, no
App. Tyler, Oct. 29, 2004)                                     pet.). This was based on the assumption that the trial
                                                               court had dismissed Pena's suit for failure to [*666]
                                                               comply with section 14.004 of the Civil Practices and
COUNSEL: For PETITIONER: Mr. William Espinoza                  Remedies Code, which requires an inmate to list, with
Pena, Pro se, Abilene, TX.                                     particularity, the operative facts of any suit previously
                                                               filed in forma pauperis by the inmate. 2004 Tex. App.
For RESPONDENT: Mr. David W. McDowell, Pro se,                 LEXIS 9664, [WL] at *3-4 [**2] Under Texas law, such
Tennessee Colony, TX.                                          an error may be corrected through an amended pleading,
                                                               so a dismissal with prejudice is not appropriate. See id.
For AMICUS CURIAE: Honorable Greg Abbott, AT-                  (citing Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex.
TORNEY GENERAL of TEXAS, Mr. Barry Ross                        App.--Corpus Christi 2001, pet. denied)).
McBee, Mr. Edward D. Burbach, Mr. David A. Talbot,
                                                                    Pena thereupon re-filed his suit. The trial court, act-
Jr.,Ms. Kimberly L. Fuchs, Mr. Rafael Edward Cruz,
                                                               ing sua sponte, again dismissed the case with prejudice
OFFICE of the ATTORNEY GENERAL, Austin, TX.
                                                               as frivolous. Although Pena filed motions for reconsid-
                                                               eration and for an evidentiary hearing, the trial court did
OPINION
                                                               not rule on either request. Pena filed a notice of appeal.
 [*665] PER CURIAM                                                  Immediately thereafter, the clerk of the Twelfth
                                                               Court of Appeals sent Pena a letter that read, in relevant
     William Pena, an inmate incarcerated at the Angle-
                                                               part:
ton unit of the Texas Department of Criminal Jus-
tice--Institutional Division, filed suit against the Depart-
                                                                                                                    Page 2
                                       201 S.W.3d 665, *; 2006 Tex. LEXIS 788, **;
                                                  49 Tex. Sup. J. 1017

           Pursuant to TEX. R. APP. P. 37.1, no-                ed for filing must contain proof of service in the form of
       tice is hereby given that the notice of ap-              either an [**5] acknowledgment of service by the per-
       peal filed in this case fails to contain the             son served or a certificate of service.").
       information specifically required by TEX.
                                                                     And while it is true that Pena's failure to include the
       R. APP. P. 25.1(e). You are hereby noti-
                                                                Attorney General's name and address on his certificate of
       fied pursuant to TEX. R. APP. P. 42.3,
                                                                service violates Rule 9.5(d), it does not, strictly [*667]
       that unless a proper notice of appeal is
                                                                speaking, violate Rule 25.1(e)--the only basis cited for
       filed with the trial court on or before
                                                                the inadequacy of his notice of appeal and the stated
       Monday, May 9, 2005, the appeal will be
                                                                reason for the dismissal of his appeal. As a result, the
       referred to the Court for dismissal.
                                                                dismissal of the appeal cannot be sustained on that
                                                                ground.
(emphasis omitted). Pena did not respond to this letter,            We recognize that courts of appeals have routinely
and [**3] the court summarily dismissed his appeal,             dismissed similar cases on the basis of Rule 25.1(e) even
citing Pena's failure to comply with Rule 25.1(e) of the        though a dismissal under Rule 9.5(d) would have been
Rules of Appellate Procedure. 1       S.W.3d       (Tex.        more appropriate. See McCaleb v. Descisciolo, 2005 Tex.
App.--Tyler 2005, pet. filed).                                  App. LEXIS 3795, No. 12-05-00122-CV, 2005 WL
                                                                1177062, at *1 (Tex. App.--Tyler May18, 2005, no pet.);
       1 Pena claims that he did not respond to the             Guajardo v. Guajardo, 2003 Tex. App. LEXIS 2538, No.
       letter because he believed he had complied with          13-02-364-CV, 2003 WL 1562553, at *1 (Tex.
       Rule 25.1(e). Additionally, Pena alleges that            App.--Corpus Christi Mar. 27, 2003, no pet.). However,
       someone from the clerk's office of the court of          other courts have properly cited Rule 9.5(d) where ap-
       appeals notified him in a May 5, 2005 letter (re-        propriate. See Reiners v. Reiners, 2005 Tex. App. LEXIS
       ceived May 11, 2005) that he had perfected his           411, No. 10-04-00359-CV, 2005 WL 114669, at *1 (Tex.
       appeal. A copy of that letter, however, has not          App.--Waco Jan. 19, 2005, no pet.).
       been included in the record.
                                                                     While an experienced attorney might have been able
     Rule 25.1(e) requires that a notice of appeal in a civ-    to discern from the court's citation [**6] to Rule 25.1(e)
il case "be served on all parties to the trial court's final    that there was a problem with the certificate of service,
judgment." The court of appeals apparently dismissed the        our decision today does not amount to a special accom-
appeal because the notice of appeal failed to show on its       modation to a pro se litigant. To the contrary, it has long
face that the Office of the Attorney General had been           been our position that pro se litigants are not exempt
properly notified of the appeal. However, the defect in         from the rules of procedure. Wheeler v. Green, 157
Pena's notice of appeal does not appear to be that he           S.W.3d 439, 444, 48 Tex. Sup. Ct. J. 408 (Tex. 2005);
failed to actually serve the [**4] Office of the Attorney       Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85,
General. Pena maintains in his brief that he did mail a         22 Tex. Sup. Ct. J. 43 (Tex. 1978). Rather, any litigant is
copy of the notice of appeal to the Office of the Attorney      entitled to relief from an erroneous decision of a court
General, and the amicus brief submitted on behalf of the        even though, as in this case, an experienced attorney
Attorney General carefully avoids contradicting this            might have been able to discern the actual reason for
statement. Instead, the Attorney General's position (and        dismissal.
that of the court of appeals in the decision below) is that
                                                                     Rule 37.1 of the Rules of Appellate Procedure clear-
Pena's failure to include the name and address of the At-
                                                                ly requires an appellate clerk to notify the parties of a
torney General on the certificate of service attached to
the notice of appeal constitutes a violation of Rule            defect in the notice of appeal so that the appealing party
25.1(e).                                                        can remedy the defect. Here, the appellate clerk failed to
                                                                correctly identify the defect in Pena's notice of appeal
     However, Rule 25.1(e) makes no mention of a cer-           and give him a chance to correct the mistake.
tificate of service. Indeed, nowhere in Rule 25 are liti-
gants directed to include a certificate of service with their        Accordingly, without hearing oral argument, see
notice of appeal or as to what the contents of such a cer-      TEX. R. APP. P. 59.1, we reverse the court of appeals'
                                                                judgment and remand the case to that court for proceed-
tificate ought to be. Rule 25.1(e) merely requires actual
                                                                ings consistent with this opinion. 2
service on all parties to the trial court's judgment. A cer-
tificate of service is simply one method of demonstrating
that actual service occurred and is addressed within an                2 Pena's pending motions requesting a tempo-
                                                                       rary restraining order, preliminary injunction, and
entirely different section of the Rules of Appellate Pro-
                                                                       judicial notice are hereby denied.
cedure. See TEX.R.APP.P.9.5(d) ("A document present-
                                                      Page 3
        201 S.W.3d 665, *; 2006 Tex. LEXIS 788, **;
                   49 Tex. Sup. J. 1017

[**7]
                                                                                                                   Page 1




Positive
As of: Mar 30, 2015

               D. PRIEST & VAN ZANDT COMMISSION COMPANY, INC., Appellants v. TEX.
                             ANIMAL HEALTH COMMISSION, Appellee

                                                  No. 05-88-01417-CV

                              COURT OF APPEALS OF TEXAS, Fifth District, Dallas

                                     780 S.W.2d 874; 1989 Tex. App. LEXIS 3142


                                                   November 6, 1989

PRIOR HISTORY:          [**1] On Appeal from 294th            ment were inadequate as a matter of law to establish
Civil District Court, Van Zandt County, Texas, Trial          [**2] that no material issue of fact existed. We agree
Court Cause No. 87-389.                                       that the proof failed to establish that Priest failed to keep
                                                              records as required by law. We conclude, however, that
                                                              the other grounds for injunction were properly estab-
COUNSEL: Molly D. Shannon, Austin, Texas.                     lished. Thus, the trial court's judgment is affirmed in part
                                                              and reversed and remanded in part.
Mark J. Calabria, Rebecca L. Calabria, Kaufman, Texas.
                                                                  STANDARDS OF REVIEW
JUDGES: Justices Howell, Linda Thomas and Ovard.
                                                              A. Permanent Injunction
Dissenting Opinion By Justice Charles Ben Howell.
                                                                   A successful applicant for injunctive relief must
OPINION BY: THOMAS                                            demonstrate the following four grounds for relief: 1) the
                                                              existence of a wrongful act; 2) the existence of imminent
OPINION                                                       harm; 3) the existence of irreparable injury; and 4) the
                                                              absence of an adequate remedy at law. Frey v. DeCor-
      [*875] D. Priest and Van Zandt Commission
                                                              dova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881
Company (hereafter collectively "Priest") appeal from a
                                                              (Tex. App. -- Fort Worth 1982), aff'd, 647 S.W.2d 246
permanent injunction entered by summary judgment,
                                                              (Tex. 1983).
enjoining Priest from: 1) failing to maintain proper cattle
ownership records for cattle sold through them; 2) refus-           The grant or refusal of a permanent or temporary
ing to allow Texas Animal Health Commission (hereafter        injunction is ordinarily within the sound discretion of the
"Commission") representatives to examine such records;        trial court and, on appeal, review of the trial court's ac-
and 3) failing to brand cattle exposed to brucellosis. In     tion is limited to the question of whether the action con-
two points of error, Priest contends that the trial court     stituted a clear abuse of discretion. Janus Films Inc. v.
erred in granting the Commission's motion for summary         [*876] City of Fort Worth, 163 Tex. 616, 617, 358
judgment because: 1) the summary judgment evidence            S.W.2d 589, 589 (1962) (temporary injunction); Mejerle
did not entitle the Commission to judgment as a matter        v. Brookhollow Office Products [**3] , 666 S.W.2d 192,
of law and did not establish that there were no genuine       193 (Tex. App. -- Dallas 1983, no writ) (temporary in-
issues of material fact; and 2) the affidavits and attach-    junction); Electronic Data Sys. Corp. v. Powell, 508
ments to the Commission's motion for summary judg-            S.W.2d 137, 139 (Tex. Civ. App. -- Dallas 1974, no writ)
                                                                                                                       Page 2
                                   780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


(temporary injunction, but suggesting that abuse of dis-            The applicable standards for reviewing a summary
cretion standard applies to all injunctions); Lee v.            judgment may be summarized as follows:
Bowles, 397 S.W.2d 923, 926 (Tex. Civ. App. -- San
Antonio 1965, no writ) (permanent injunction). Where                      1. The movant for summary judgment
the facts conclusively show a party is violating the sub-              has the burden of showing that there is no
stantive law it becomes the duty of the court to enjoin the            genuine issue of material fact and that it is
violation and in such case there is no discretion to be                entitled to judgment as a matter of law.
exercised. City of Houston v. Memorial Bend Util. Co.,
                                                                           2. In deciding whether there is a dis-
331 S.W.2d 418, 422 (Tex. Civ. App. -- Houston 1960,
                                                                       puted material fact issue precluding sum-
writ ref'd n.r.e.).
                                                                       mary judgment, evidence favorable to the
     Although a litigant has the right to a trial by jury in           nonmovant will be taken as true.
an injunction action, only ultimate issues of fact are
submitted for jury determination. State v. Texas Pet                   3. Every reasonable inference must be
Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979). The jury                 indulged in favor of the nonmovant and
does not determine the expediency, necessity or proprie-               any doubts resolved in its favor.
ty of equitable relief. Id.; Alamo Title Co. v. San Antonio
Bar Ass'n, 360 S.W.2d 814, 816 (Tex. Civ. App. -- Waco
1962, writ ref'd n.r.e.). As the supreme court has noted:        Nixon v. Mr. Property Management Co., 690 S.W.2d
                                                                546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669
            We do not consider the question [**4]               S.W.2d 309, 310-11 (Tex. 1984). With the standards of
       of likelihood of [defendant's] resumption                review for injunction and for summary judgment in
       or continuation of the acts enjoined as                  mind, we turn to the summary judgment proof offered in
       being an ultimate issue of fact for the jury.            support of Priest's violations of the Texas Agriculture
       . . . A jury in equity, even under a blended             Code.
       system, does not decide the issue of expe-
                                                                    FAILURE TO KEEP PROPER RECORDS
       diency, necessity or propriety of equitable
       relief. . . . It was an element deducible                     The Texas Agriculture Code requires that each live-
       from the circumstances for the court to                  stock auction commission merchant keep a record of
       consider in determining whether wrong or                 transportation of livestock to and from the place of sale,
       injury might be anticipated and whether                  [**6] including the name and address of the original
       chancery powers should be exercised. It                  owner and the purchaser of the livestock. TEX. AGRIC.
       constituted here, in effect, a mixed ques-               CODE ANN. § 147.042 (Vernon 1982). The statute pro-
       tion of law and fact at most. Such ques-                 vides that the commission merchant shall retain the rec-
       tions are not for the jury in injunction                 ords for at least one year after the date of sale. Id. §
       cases.                                                   147.042(d).
                                                                      [*877] The Commission also points to section
                                                                147.041 of the Texas Agriculture Code and to rule
 Texas Pet Foods, 591 S.W.2d at 803, quoting Alamo
Title Co., 360 S.W.2d at 816.                                   35.2(e) of the Texas Bovine Brucellosis Regulations
                                                                promulgated by the Commission pursuant to sections
                                                                161.046 and 163.061 of the Texas Agriculture Code, as
B. Summary Judgment
                                                                requiring Priest to keep records of the names and ad-
     The function of a summary judgment is not to de-           dresses of sellers and purchasers of cattle. Section
prive a litigant of his right to a full hearing on the merits   147.041 requires Priest to keep records of all livestock
of any real issue of fact, but to eliminate patently unmer-     sold. TEX. AGRIC. CODE ANN. § 147.041(a). It does
itorious claims and untenable defenses. Gulbenkian v.           not explicitly state that Priest must keep records includ-
Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).            ing the name and address of sellers and purchasers of
Under rule 166a of the Texas Rules of Civil Procedure,          livestock, although the statute requires him to file with
summary judgment may be rendered only if the plead-             the commissioners court a quarterly report containing
ings, depositions, admissions, interrogatory answers, and       this information. TEX. AGRIC. CODE ANN. §
affidavits show 1) that there is no genuine [**5] issue         147.041(c). Because the statute does not specifically
as to any material fact and 2) that the moving party is         require Priest to keep the information the Commission
entitled to judgment as a matter of law. TEX. R. CIV. P.        contends he failed to keep, we conclude that violation of
166a(c).                                                        this provision will [**7] not support the injunction.
                                                                Rule 35.2(e) provides that the market will supply certain
                                                                                                                   Page 3
                                   780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


information to the veterinarian making a market test of        Such statements of the nonmovant must be taken as true.
cattle, including the full name and address, including zip     Nixon, 690 S.W.2d at 548.
code, of the owner of the cattle at the time the cattle are
                                                                    We recognize that Priest did not raise this precise
delivered to the market. Again, although the rule cer-
                                                               argument in his response to summary judgment, nor in
tainly implies a requirement to keep records in order to
                                                               his brief on appeal. We note, however, that this point
supply the information to the veterinarian, there is no
                                                               concerns a deficiency of proof that Priest is entitled to
explicit requirement that Priest keep such records. The
                                                               raise without first complaining [*878] in his response
Commission has not alleged that Priest failed to give the
                                                               to the motion for summary judgment. No response from
required information to the veterinarian. Thus, violation
                                                               the nonmovant is required when the movant's summary
of rule 35.2(e) will not support the injunction.
                                                               judgment proof is legally insufficient. Cove Invest-
     As proof that Priest failed to keep records including     ments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex. 1980).
the name and address of the original owner and the pur-        Further, Priest's points [**10] of error aver generally
chaser, the Commission attached to its motion for sum-         that the trial court erred in granting the summary judg-
mary judgment Priest's answers to interrogatories, an          ment because the Commission failed to prove its enti-
affidavit of Wayne Rogers, a postmaster, and excerpts          tlement to such judgment. These points embrace all rea-
from the United States Government Manual pertaining to         sons for the failure of proof which rendered the granting
mail. The Commission served on Priest two sets of in-          of the summary judgment improper. Id. at 517. We
terrogatories. The sixty questions in the two sets each        hold that the summary judgment proof failed to establish
asked Priest to: "Provide full name, address including         the Commission's entitlement to summary judgment on
county and telephone number for seller/original owner of       the basis of a failure by Priest to maintain proper records.
[certain [**8] cattle identified by back tag number] sold      Without proof of unlawful conduct or proof of intent to
through Van Zandt Commission Company, Inc. on [a               commit such conduct, injunctive relief is improper.
certain date]." The dates of sales were between January        Frey, 632 S.W.2d at 881. We sustain that portion of point
4, 1986 and December 20, 1986. Priest's answers to the         of error one contending that the Commission failed to
interrogatories were served on counsel on June 17, 1988.       establish its right to judgment on the ground of failure to
Priest's responses to a number of the interrogatories in-      keep proper records.
cluded name, address including route number and box
                                                                   REFUSAL OF ACCESS TO RECORDS
number or street address, city and state, and zip code.
Several interrogatory answers included a name and route             Section 147.042 of the Texas Agriculture Code pro-
number, city and state, but did not include a box number       vides that the commission merchant shall prepare the
and zip code. Others included a name, city and state, or       transportation records referenced above and make them
merely a name. In response to one interrogatory asking         available for public inspection within twenty-four hours
for the name and address of the seller/original owner of       after receipt of the livestock and that these records are to
back tag #74 493 sold through Van Zandt Commission             be retained for at least one year after the date of sale.
Company on November 22, 1986, Priest responded, "In-           TEX. AGRIC. CODE ANN. § 147.042. The Commission
formation not available." The affidavit of the postmaster      contended that [**11] Priest had refused to allow
and the excerpts from the Government Manual concern-           Commission representatives to examine these records.
ing the elements of a proper address were offered to           As proof, the Commission offered the affidavit of Rich-
show that the information provided by Priest did not, in       ard Hanson, Animal Health Inspector. Hanson averred
many respects, constitute full names and addresses.            that on several occasions in the exercise of his official
                                                               duties he had attempted to examine the records of the
     The Commission's theory for summary judgment
                                                               Van Zandt Commission Company and was told by Priest
was that Priest's inability to produce names and address-
                                                               or his wife, who acted as bookkeeper for the company,
es for his responses [**9] to the interrogatories was
                                                               that he would not be allowed to view any of the records
proof that, as a matter of law, Priest did not keep the rec-
                                                               unless he brought a search warrant. He lists several dates
ords required by the Agriculture Code. The hypothesis
                                                               upon which he was refused access to the records, such
is compelling, except for one failing. The Agriculture
                                                               dates being within one year of sales referenced in the
Code required Priest to retain records from sales for only
                                                               interrogatories.
one year. TEX. AGRIC. CODE ANN. § 147.042(d). The
fact that Priest could not produce information on June             Priest argues that Hanson's affidavit will not support
17, 1988, concerning sales in 1986, constitutes no proof       summary judgment because Hanson is an interested wit-
that Priest failed to keep the records of sale for one year    ness. Rule 166a of the Texas Rules of Civil Procedure
as required by the Code. In fact, Priest stated in his affi-   provides that a summary judgment may be based on un-
davit that he has always maintained the proper records.        controverted evidence of an interested witness if the evi-
                                                               dence is clear, positive and direct, otherwise credible and
                                                                                                                  Page 4
                                  780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


free from contradictions and inconsistencies, and could            Priest argues that Nabors's affidavit and attachments
have been readily controverted. TEX. R. CIV. P. 166a(c);      do not support the summary judgment because the affi-
Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d         davit contains hearsay, is not based upon personal
606, 607 (Tex. 1986). We conclude that the statements         knowledge, and fails to establish the admissibility of the
[**12] in Hanson's affidavit that on several listed dates     attachment. Priest's hearsay complaint is directed to the
he was refused access to records by Priest and his wife       statement that "the veterinarian classified both animals as
are clear, positive, direct and could have been readily       reactors." We agree that such statement is inadmissible
controverted. Further, this evidence was not controverted     hearsay, properly objected to in Priest's response to the
by Priest. Thus, the summary judgment could be based          motion for summary judgment, and should be disregard-
upon Hanson's affidavit. Hanson clearly stated that he        ed. Priest further contends that this hearsay statement
was not allowed to view records which the Agriculture         shows that Nabors's affidavit is not based on personal
Code required Priest to retain and make available for         knowledge, but rather upon the statement of some un-
public inspection. We hold that this evidence established     known veterinarian. We disagree. The affidavit states
the Commission's entitlement to summary judgment on           that Nabors confirmed this statement from his own la-
this ground as a matter of law.                               boratory tests. Priest also argues that the documents at-
                                                              tached to Nabors's affidavit are inadmissible because the
   FAILURE TO BRAND CATTLE EXPOSED TO
                                                              documents are not directly referenced or identified in the
BRUCELLOSIS
                                                              affidavit, the affidavit does not reflect whether the at-
      The Texas Bovine Brucellosis Regulations require        tachments are true and correct [**15] copies of the
cattle infected with brucellosis and cattle exposed to in-    originals, and the affidavit does not establish the admis-
fected cattle to be appropriately branded. Cattle identi-     sibility of the documents.
fied as being infected with brucellosis are branded on the
                                                                   Priest is mistaken in stating that the affidavit does
left jaw with the letter "B." Cattle from the same herd as
                                                              not refer to the documents. The affidavit clearly states,
any infected cattle are considered suspects, and are to be
                                                              "The attached documents correctly reflect . . ."; thus, the
branded on the left jaw with the letter "S." Tex. Animal
                                                              affidavit does directly reference the documents. Priest's
Health Comm'n, 4 TEX. ADMIN. CODE § 35.2(h) (West
                                                              argument that the affidavit fails to state that the copies
Oct. 15, 1988) (brucellosis). All exposed cattle are to be
                                                              are true and correct copies is more troublesome. Priest
branded prior to moving, except that cattle on the prem-
                                                              correctly states that such words are not used. Rule 166a
ise of origin [**13] may be moved to a livestock mar-
                                                              states that attachments referred to in an affidavit shall be
ket where they are to be identified by "S" brand upon
                                                              sworn or certified copies. TEX. R. CIV. P. 166a(e).
arrival. Id. § 35.2(h)(2).
                                                              Documents which are not sworn to or certified in any
     As proof that Priest had moved suspect cattle with-      way do not constitute summary judgment proof. Lopez
out first "S" branding them, the Commission offered the       v. Hink, 757 S.W.2d 449, 450 (Tex. App. -- Houston
affidavits of Rick Nabors, director of the State-Federal      [14th Dist.] 1988, no writ).
laboratories [*879] in Texas, and veterinarian Edward
                                                                   The supreme court has held, however, that copies of
L. Ptacek. In addition, Nabors's affidavit was accompa-
                                                              documents which are attached to a properly prepared
nied by documents reflecting the results of brucellosis
                                                              affidavit are sworn copies within the meaning of rule
tests of cattle passing through the Van Zandt market.
                                                              166a. Schindler, 717 S.W.2d at 607; Zarges v. Bevan,
Nabors stated that he is a microbiologist and that the
                                                              652 S.W.2d 368, 369 (Tex. 1983). An affidavit which
attached documents correctly reflect that brucellosis tests
                                                              avers that the documents are true and correct copies is
were conducted on blood samples received from a herd
                                                              considered a properly prepared affidavit. Schindler, 717
of cattle owned by the Malouf Ranch. The test results on
                                                              [**16] S.W.2d at 607. Schindler does not, however,
two animals, identified by backtag numbers, were posi-
                                                              limit a properly prepared affidavit to one containing
tive. Nabors averred further, "Based on the card test, the
                                                              these magic words. We hold that Nabors's statement that
veterinarian classified both animals as reactors [infected
                                                              the documents accurately reflect the results of tests per-
with brucellosis]. The State-Federal laboratory tests con-
                                                              formed by the laboratory he supervises properly verified
firm his results." Edward Ptacek stated that he had been
                                                              the documents.
employed by the Commission as the director of Area 5,
the area in which the Van Zandt Commission Company                 Priest's last complaint directed to Nabors's affidavit
conducted business. On a certain date, he personally ob-      and attached documents is that the affidavit fails to es-
served seventy-three head [**14] of cattle from the           tablish the admissibility of the attachments "with respect
Malouf Ranch, which herd contained two brucello-              to who made the document, when they were prepared or
sis-infected animals, being moved without proper "S"          whether or not they were business records." Priest does
branding as required for the seventy-one exposed cattle.      not aid us with citation to authority; nevertheless, we
                                                              discern that his complaint is that the documents were
                                                                                                                     Page 5
                                   780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


hearsay in that they were not shown to be admissible            the permanent injunction enjoining Priest from failing to
business records. Priest raises this complaint for the first    maintain proper records is dissolved.
time on appeal. Because he failed to raise this hearsay
                                                                    Before Justices Howell, Linda Thomas and Ovard.
objection in his response to the motion for summary
judgment, he has waived any complaint as to [*880]                  [**19] Dissenting opinion by Justice Charles Ben
consideration of inadmissible evidence as part of the           Howell.
summary judgment record. Dolenz v. A.B., 742 S.W.2d
82, 83-84 n.2 (Tex. App. -- Dallas 1987, writ denied).          DISSENT BY: HOWELL
     Priest attacks Ptacek's affidavit because the witness
                                                                DISSENT
references "the foregoing [**17] test records," an ap-
parent reference to the documents attached to Nabors's               Dissenting Opinion By Justice Charles Ben Howell
affidavit, which preceded Ptacek's affidavit when pre-
                                                                    I dissent. The majority opinion will not stand up to
sented to the court. Priest again complains that the doc-
                                                                close analysis.
uments were not properly sworn. We reiterate that Na-
bors's affidavit properly verified the exhibit. Priest fur-          (1) The majority concludes by affirming on grounds
ther complains that the referenced document was not             that "the trial court did not abuse its discretion." The
attached to Ptacek's affidavit. Rule 166a(e) provides that      wrong test has been applied. Summary judgment will not
sworn copies of all papers or parts thereof referred to in      lie unless the movant shows his entitlement thereto as a
an affidavit shall be attached thereto or served therewith.     matter of law. It is error to award an injunction through
Priest does not contend that the documents attached to          the summary judgment process unless the movant's proof
Nabors's affidavit were not served together with Ptacek's       is such that the trial court is wholly without discretion.
affidavit when the Commission's motion for summary              Only where the summary judgment evidence is such that
judgment was served.                                            it demonstrates that the denial of relief would be a clear
                                                                abuse of discretion may a permanent injunction be en-
     Having determined what parts of the summary
                                                                tered in response to a motion for summary judgment.
judgment proof may be considered, we turn now to the
                                                                Otherwise, as in the case at hand, the movant has not met
sufficiency of that proof. Nabors stated that two animals
from the Malouf herd tested positive for brucellosis, and       his burden to show that he is entitled to recover, as a
were therefore considered reactors. The test results show       matter of law.
that the test was conducted at Priest's facility. Further,           (2) At the outset, the majority recites a four-fold test
Ptacek stated that he personally observed, at the Van           that the movant must satisfy in order to obtain a perma-
Zandt Commission Company, suspect cattle that were              nent injunction. This dissent will assume for the time
moved without first being branded "S".                          being that the State sufficiently proved the existence of
     We conclude [**18] that the summary judgment               unlawful conduct. However, the record [**20] is bereft
proof showed that Priest had moved suspect cattle with-         of any showing upon the other three elements, imminent
                                                                harm, irreparable injury, and no adequate remedy at law.
out first branding the cattle with the letter "S" as required
                                                                After firmly declaring that such a showing is required,
by the Texas Bovine Brucellosis Regulations promul-
                                                                the majority has no comment on the State's failure to
gated by the Commission. Thus, the Commission estab-
                                                                make a showing upon the three latter elements [*881]
lished its entitlement to summary judgment on this
ground as a matter of law.                                      which it has held (and correctly so) to be necessary.

    SUMMARY                                                          (3) The majority declares that injunction is a discre-
                                                                tionary remedy and declares that appellate review is
     We hold that the trial court properly granted the          "limited to the question whether the action constituted a
summary judgment concluding that Priest had refused to          clear abuse of discretion." However, all of the cases cited
allow Commission representatives to examine records             involved the issuance of an injunction following a trial
and that Priest had allowed suspect cattle to be moved          on the merits. As already stated, in order to fulfill the
without first branding them as required by state regula-        summary judgment requirement that the movant show
tions. We also conclude that the trial court did not abuse      himself entitled to judgment "as a matter of law," the
its discretion in entering the permanent injunction on          movant must have demonstrated to the trial court that it
these grounds. We further hold that the evidence failed to      was without discretion to deny the injunction. 1
show that, as a matter of law, Priest failed to keep rec-
ords as required by law. Thus, we conclude that the trial              1 The majority states that "where the facts con-
court abused its discretion in entering the injunction on              clusively show a party is violating the substantive
this ground. We reverse the summary judgment on this                   law it becomes the duty of the court to enjoin the
ground and remand for further proceedings. In addition,                violation," citing City of Houston v. Memorial
                                                                                                                      Page 6
                                     780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


        Bend Util. Co., 331 S.W.2d 418, 422 (Tex. Civ.                 Seemingly, the Commission would sidestep this
        App. -- Houston [1st Dist.] 1960, writ ref'd n.r.e.).     problem by arguing that it seeks to enjoin violations of
        However, a reading of Memorial Bend reveals               its rules (which do little or nothing more than parrot the
        that its declaration was far too broad. In that case,     provisions of the statutes) rather than violations of the
        a utility company unilaterally increased its              statute pertaining to "Livestock Markets." Id. §§ 161.111
        monthly rates in violation of a valid city ordi-          through 161.116. However, it is well settled that an ad-
        nance. The defendant utility gave every indica-           ministrative agency has no power to adopt rules that de-
        tion that it intended to continue charging its un-        feat the plain meaning of statutes.
        lawful rates unless restrained. The appellate
                                                                       When we search for the rule-making authority of the
        court, finding the ordinance valid, held that the
                                                                  Commission, we find that the statutes contain several
        trial court committed a clear abuse of discretion
                                                                  grants to the [**23] Commission of authority to prom-
        in refusing a temporary injunction. Laying aside
                                                                  ulgate rules. First of all, the exempted subchapter con-
        the fact the Memorial Bend only involved a tem-
                                                                  tains rule-making authority. Id. §§ 161.111 through
        porary injunction, there are many differences
                                                                  161.116. However, if there is no authority to enforce the
        from the case at hand, particularly with respect to
                                                                  statute by injunction, there can be no authority to enforce
        proof that the defendant's unlawful conduct
                                                                  by injunction the rule-making authority contained in the
        would continue unless enjoined and the lack of a
                                                                  same statute. After all, water can rise no higher than its
        showing of irreparable injury.
                                                                  source.
      [**21] It is rare that a plaintiff by motion for
                                                                        [*882] Other parts of the same chapter describe
summary judgment is able to meet, as a matter of law,
                                                                  the powers and duties of the Commission, and contain
the rigorous demands of the equity which must be satis-
                                                                  additional provisions authorizing entry and granting rule
fied before an injunction may issue. Equitable relief is
                                                                  making power. There are also provisions outside of the
discretionary relief. The trial court must engage in a bal-
                                                                  exempted subchapter relating to the inspection, treat-
ancing of the equities. In the ordinary instance, the ap-
                                                                  ment, quarantine, and sale or marketing of diseased ani-
plicant must plead and prove that he has no adequate
                                                                  mals.
remedy at law. Equity will not, in the ordinary instance,
engage in the enforcement of the criminal law. It is fur-              Another chapter of the Code, entitled "Livestock
ther well established that he who seeks equity must do            Commission Merchants," contains, among other things,
equity, that equity aids the vigilant, that equity will not       record-keeping and inspection provisions. Id. §§
do a vain or useless thing, and that equity only exacts           147.001-147.065 (Vernon 1982 & Vernon Supp. 1989).
restitution, never vengeance.                                     Still another chapter entitled "Brucellosis Control Are-
                                                                  as," sections 163.001 through 163.087, contains further
     The plaintiff Commission appears to rely on two
                                                                  provisions relating to rule-making, entry, reports, testing,
statutes for exemption from the principles of equity or-
                                                                  branding, and handling of diseased animals. Id. §§
dinarily applicable in cases such as this. Neither statute
                                                                  163.001-163.087 (Vernon 1982 & Vernon Supp. 1989).
expressly entitles state officials or state agencies to equi-
table relief except in compliance with the rules of general             [**24] The Commission would apparently argue
application. It is a well established principle that the          that the rules upon which it relies were not promulgated
state, its agencies, and its officials enter court and litigate   under authority of section 161.112, a portion of "this
on the same basis and subject to the same requirements            chapter" to which the injunction provision is expressly
of law as private individuals. We should be very slow             inapplicable. Presumably, the argument is that the rules
[**22] to read into the statutes in question any special          were adopted under authorizations found elsewhere from
provisions in favor of the Commission.                            sections 161.111 through 161.116 and that the rules are
                                                                  therefore not affected by the no-injunction proviso of
     The first of the statutes invoked is, by far, the most
                                                                  section 161.131(a).
specific in its application. Section 161.131 of the Texas
Agriculture Code provides that "any citizen" may sue to                The easy answer to this argument is that the specific
enjoin violations of "this chapter." TEX. AGRIC. CODE             controls over the general. Inasmuch as the statutory
ANN. § 161.131(a) (Vernon 1982). However, it is                   scheme expressly makes the injunction provision inap-
doubtful if that statute has any application because it           plicable to "Livestock Markets" and to the rule making
expressly exempts subchapter F, being sections 161.111            authority pertaining to "Livestock Markets," we must
through 161.116 entitled "Regulation of Livestock Mar-            hold that the Commission may not subvert the clear stat-
kets." It appears that the violations found by the majority       utory command through the adoption of rules pertaining
simply do not fall within the injunction provision of the         to "Livestock Markets" on the basis of generalized
code.                                                             rule-making authority contained elsewhere in the Code.
                                                                  Any other construction operates to nullify a clear decla-
                                                                                                                     Page 7
                                   780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


ration of legislative intent. TEX. AGRIC. CODE ANN. §          affirmed: "Irreparable harm would be threatened to the
161.131(a) (Vernon 1982).                                      cattle industry of Frio County if appellant cannot be
                                                               compelled to comply with the statute." An outbreak of
     The other statutory authorization for injunctive relief
                                                               the disease was then manifest in the area and all herds
upon which the Commission would rely is contained in
                                                               were being mandatorily tested. In order to control the
the Administrative [**25] Procedure and Texas Regis-
                                                               spread of the infection, immediate and widespread test-
ter Act. TEX. REV. CIV. STAT. ANN. art. 6252-13a, §
                                                               ing was imperative. The irreparable injury requirement
19A (Vernon Supp. 1989). This statute has such broad
                                                               was satisfied. Id.
and general application that we must be slow indeed to
import into it any special prerogatives on the part of the          Having outlined the principles upon which this case
State, its officials, and its agencies to obtain injunctive    should be decided, this dissent turns to the specifics. Our
relief. We must hold that this latter statute is no more       majority has found that the defendant committed two
than a general statement of principle that the State, its      violations of the Agriculture Code. On several occasions,
agencies, and its employees may obtain injunctive relief       defendant refused to allow inspection of his records by
wherever the usages of equity forged out over the centu-       Commission personnel. Proof that the infraction occurred
ries make injunctive relief available and appropriate.         and that it was repeated does not necessarily prove irrep-
                                                               arable injury. In fact there was no showing that defend-
     The foregoing analysis cannot, by any means, be in-
                                                               ant was attempting [**28] to hide the fact that he was
terpreted as a holding that the statutes just discussed pre-
                                                               engaged in the practice of dealing in diseased cattle, if
clude the Commission from injunctive relief. Sections
                                                               such be the real contention of the plaintiff Commission.
65.001 through 65.031 of the Texas Civil Practice and
                                                               By his affidavit, defendant has offered the following
Remedies Code generally regulate the availability of in-
                                                               explanation of his conduct:
junction for all litigants. TEX. CIV. PRAC. & REM.
CODE ANN. §§ 65.001-65.031 (Vernon 1986); see also
                                                                         I have previously understood from
TEX. R. CIV. P. 693. This analysis of the injunction stat-
                                                                      other livestock barn owners that they were
utes returns to the point from which it departed. No, this
                                                                      sued by animal owners for revealing or
defendant and its operations as a livestock commission
                                                                      producing records. I now understand that
market are not wholly exempt from being forced through
                                                                      such records are public in nature and must
the [**26] issuance of an injunction to comply with the
                                                                      be produced at all times upon request. . . .
Agriculture Code. Yes, the writ is available on suit by the
                                                                      I have no intention of violating the laws
Commission. However, the Commission enters the
                                                                      of the State of Texas in the future.
courts of this State on the same basis as any other liti-
gant, being neither more entitled nor less entitled to in-
junctive relief than any other citizen.
                                                                    By its summary judgment, the trial court has de-
     One reservation must be made to the foregoing
                                                               prived defendant of the opportunity to present his testi-
statement. A state official or agency cannot be held to the
                                                               mony in person to the trier of fact. Had the trier of fact
exacting standard of irreparable injury to which a private
                                                               believed that defendant was sincere and credible, had the
litigant is generally held. Where a public official is ex-
                                                               trier of fact decided that no harm was done, had the trier
pressly charged with the enforcement of a regulatory
                                                               of fact decided that future violations were unlikely, did
scheme, if we were to hold that he must show irreparable
                                                               the trier of fact possess the discretion, after the plenary
injury to himself, to state property or to the state treas-
                                                               hearing, to deny injunctive relief to the Commission? Of
ury, we would obviously be effectively denying the
                                                               course, he did. By the same measure, it was error to enter
State, and those through whom it must act, of injunctive
                                                               a summary judgment in this case. It is not the office of
relief in virtually all cases. The irreparable injury re-
                                                               summary judgment to substitute trial by affidavit for trial
quirement is satisfied on behalf of the State when it
                                                               upon the [**29] merits with live witnesses for both
shows the threat of clear, immediate and substantial in-
                                                               sides. The office of summary judgment is limited to the
jury, of an irreparable nature, to the protected class or to
                                                               elimination of patently unmeritorious claims.
a specific group through violation of the regulatory pro-
vision which the [*883] State officer or agency is                   The other violation found against defendant was that
charged by law to enforce. Thus, the irreparable injury        a herd containing two diseased animals passed through
[**27] requirement was satisfied in the case of Gluck v.       defendant's premises without being branded in accord-
Texas Animal Health Comm'n, 501 S.W.2d 412, 415                ance with the rules and statutes. However, unlike Gluck,
(Tex. Civ. App. -- San Antonio 1973, writ ref'd n.r.e.). In    the cattle in question had gone far from defendant's
that case, the landowner refused to allow his cattle to be     premises when summary judgment was rendered. Our
tested for brucellosis. The trial court issued an injunction   trial court could do naught but enjoin future conduct of a
via motion for summary judgment. The appellate court           similar nature. However, there was no claim of any con-
                                                                                                                     Page 8
                                   780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, **


tinued pattern of activity, no claim that defendant rou-        Texas Employment Comm'n v. Martinez, 545 S.W.2d
tinely allowed diseased cattle to be sold through his           876, 877 (Tex. Civ. App. -- El Paso 1976, no writ).
premises, or even that defendant or anyone in authority
                                                                     At the trial upon the merits, the Commission will
at defendant's premises knew that the cattle in question
                                                                further be burdened to present evidence that it has no
were either subject to the disease or that they had not
                                                                adequate remedy at law. A corollary to this rule provides
been branded as suspects.
                                                                that the remedy of injunction is not available to prevent
     It is not to be doubted that the statute imposes af-       violations of the criminal law. Each of the infractions for
firmative duties on a livestock market operator. He has         which defendant has been enjoined is punishable as a
the affirmative duty to see to it that diseased cattle are      misdemeanor. In addition, sections 147.021 through
not sold through his premises in violation of the law.          147.029 of the Agriculture Code require defendant to
However, in the absence of some showing of dereliction          provide a bond. Suit on the bond is an available recourse
of duty, in the absence of some showing of the [**30]           with respect to some, if not all, of the infractions here
threat of future violations of the same sort, the trial court   alleged.     TEX.     AGRIG.      CODE        ANN.      §§
after hearing the evidence in full must deny injunctive         147.021-147.029 (Vernon 1982). The Commission has
relief upon this count. The Commission has not made             asked for and received injunctive relief without a show-
prima facie proof of its entitlement to an injunction           ing that it ever sought these statutory remedies or why
simply by proving one single past incident and offering         they would not be effectual. Without such a showing, the
no evidence of culpability and no evidence of any likeli-       Commission is not entitled to injunctive relief.
hood of recurrence.
                                                                     Gluck does not hold to the contrary. The [**32] re-
     Injunction is a harsh remedy and must be carefully         al thrust of Gluck is that the immediacy of the situation --
regulated and confined to proper cases. Raine v.                the ongoing spread of an epidemic -- required relief that
Searles, 302 S.W.2d 486, 487 (Tex. Civ. App. -- El Paso         the criminal law could not expeditiously provide. If
1957, no writ). Injunctions are issued only to prevent          Gluck made any broader ruling, it should be disavowed.
imminent [*884] harm. Lloyd v. Alaska Worldwide,                If the Commission desires to bypass the remedies set
Inc., 550 S.W.2d 343, 348 (Tex. Civ. App. -- Dallas             forth on the face of the statute, it must explain its reasons
1977, no writ). In the absence of a showing that the acts       for doing so. Without an adequate explanation, injunc-
complained of probably will occur again, acts occurring         tion must be denied.
prior to the suit will not furnish a basis for injunctive
                                                                     Again, the objective of equity is restitution, not
relief. Edgar v. Glenn W. Turner Enterprises, 487
                                                                vengeance. For the refusal to allow the inspection of rec-
S.W.2d 847, 849 (Tex. Civ. App. -- Austin 1972, no
                                                                ords upon request, as required by law, a fine is a singu-
writ); see Knopf v. Standard Fixtures Co., 581 S.W.2d
                                                                larly appropriate remedy. Why did the Commission for-
504, 506 (Tex. Civ. App. -- Dallas 1979, no writ);
                                                                go such a plain and apparently adequate remedy? The
Burklund v. Hackett, 575 S.W.2d 389, 392 (Tex. Civ.
                                                                record is entirely silent. Likewise, isolated instances of
App. -- Tyler 1978, no writ). The purpose of injunctive
                                                                misbranding can be addressed by the criminal law. Until
relief is to halt [**31] wrongful acts that are threatened
                                                                and unless the Commission adequately explains its fail-
or in the course of accomplishment, rather than to grant
                                                                ure to seek these remedies, injunction must be denied.
relief against past actionable wrongs or to prevent the
commission of wrongs not imminently threatened.                     I therefore dissent. For the reasons given, this case
                                                                must be reversed and remanded for trial upon its merits.
|   | Caution
As of: April 7, 2015 5:57 PM EDT


                                         Primate Constr. v. Silver
                                                Supreme Court of Texas
                                            September 15, 1994, Delivered
                                                      No. 94-0723

Reporter
884 S.W.2d 151; 1994 Tex. LEXIS 130; 37 Tex. Sup. J. 1216

PRIMATE CONSTRUCTION, INC., PETITIONER v. JIM                  reversed the default judgment. The court observed that
SILVER,  SUZANNE    SILVER    AND    SILVER                    in order to be entitled to reversal by writ of error, a party
INSPECTION SERVICES, INC., RESPONDENTS                         who did not participate at trial had six months in which to
                                                               show error on the face of the record. Thus, because the
Prior History: [**1] ON APPLICATION FOR WRIT OF                sheriff's return showed that the employer was served
ERROR TO THE COURT OF APPEALS FOR THE                          with a version of plaintiffs' petition in which the employer
FOURTEENTH DISTRICT OF TEXAS.                                  was not named as a defendant, the lower appellate
                                                               court erred in finding no error on the face of the record.
Core Terms
                                                               Outcome

recited, court of appeals, return of service, default          The court granted the employer's application for writ of
                                                               error and reversed a default judgment that was entered
                                                               for plaintiffs. The court remanded the cause to the trial
Case Summary
                                                               court.

Procedural Posture
                                                               LexisNexis® Headnotes
Defendant employer applied for a writ of error against a
default judgment from the Court of Appeals for the                Civil Procedure > Appeals > Reviewability of Lower Court
Fourteenth District of Texas entered in favor of plaintiffs,      Decisions > Timing of Appeals
who were injured in an automobile accident involving an
employee. The employer claimed that there was error in         HN1 In order to be entitled to reversal by writ of error, a
that the sheriff's pre-printed return of service did not       party who did not participate at trial has six months in
show that the employer was served with a version of            which to show error on the face of the record.
plaintiffs' petition naming the employer as a defendant.
                                                                  Civil Procedure > ... > Pleadings > Service of Process >
Overview                                                          General Overview
                                                                  Civil Procedure > Judgments > Pretrial Judgments >
The employee and plaintiffs were involved in an                   General Overview
automobile accident. Plaintiffs were injured and filed
suit. Their original petition named only the employee as          Civil Procedure > ... > Pretrial Judgments > Default &
                                                                  Default Judgments > General Overview
defendant; plaintiffs' second amended petition named
the employer. The trial court granted default judgment            Civil Procedure > ... > Pretrial Judgments > Default &
for plaintiffs. The appellate court affirmed the judgment.        Default Judgments > Default Judgments
The record indicated that the citation was attached to a          Civil Procedure > ... > Pretrial Judgments > Default &
true and correct copy of plaintiffs' second amended               Default Judgments > Relief From Default
petition; however, the sheriff's pre-printed return of
service form indicated that the employer was served            HN2 Strict compliance with the rules for service of
with a true and correct copy of only plaintiffs' original      citation must affirmatively appear on the record in order
petition. The court granted the employer's application         for a default judgment to withstand direct attack. There
for a writ of error, pursuant to Tex. R. App. P. 170, and      are no presumptions in favor of valid issuance, service,
                                    884 S.W.2d 151, *151; 1994 Tex. LEXIS 130, **1



and return of citation in the face of a writ of error attack     hearing oral argument, reverses the judgment of the
on a default judgment.                                           court of appeals and remands the cause to the trial
                                                                 court.
   Civil Procedure > ... > Pleadings > Service of Process >
                                                                 Jim Silver, Suzanne Silver and Silver Inspection
   General Overview
                                                                 Services, Inc. originally filed suit against Gary Wayne
   Civil Procedure > Judgments > Pretrial Judgments >            Martin, the driver of the car with which they collided and
   General Overview                                              an employee of Primate Construction, Inc. Primate
   Civil Procedure > ... > Pretrial Judgments > Default &        Construction was first named as a defendant in Plaintiffs'
   Default Judgments > General Overview                          Second Amended Petition. The citation in the record
                                                                 indicates that the citation was attached to a true and
   Civil Procedure > ... > Pretrial Judgments > Default &        correct copy of Plaintiffs' Second Amended Petition;
   Default Judgments > Default Judgments
                                                                 however, the pre-printed [**2] return of service form,
                                                                 signed by the sheriff, indicates that Primate Construction
HN3 A return of service is not a trivial, formulaic
                                                                 was served with a true and correct copy of the Plaintiffs'
document. It has long been considered prima facie
                                                                 Original Petition. When Primate Construction failed to
evidence of the facts recited therein. The recitations in
                                                                 answer, the plaintiffs took a default judgment, from
the return of service carry so much weight that they
                                                                 which Primate Construction appealed by writ of error to
cannot be rebutted by the uncorroborated proof of the            the court of appeals.
moving party. The weight given to a return is no less
when the recitations impeach the judgment than when              HN1 In order to be entitled to reversal by writ of error, a
they support it.                                                 party who did not participate at trial has six months in
                                                                 which to show error on the face of the record. Brown v.
   Civil Procedure > ... > Pleadings > Service of Process >      McLennan County Children's Protective Services, 627
   General Overview                                              S.W.2d 390, 392 (Tex. 1982). Because the sheriff's
                                                                 return shows that the defendant was served with a
HN4 It is the responsibility of the one requesting service,      version of the plaintiffs' petition in which Primate
not the process server, to see that service is properly          Construction was not named as a defendant, the court
accomplished. Tex. R. Civ. P. 99(a). This responsibility         of appeals erred in finding no error on the face of the
extends to seeing that service is properly reflected in          record.
the record. The Rules of Civil Procedure allow for liberal
amendment of the return of service to show the true              For well over a century, this court has required that HN2
facts of service. Tex. R. Civ. P. 118. If the facts as recited   strict compliance with the rules for service of citation
in a sheriff's return, pre-printed or otherwise, are             affirmatively appear on the record in order for a default
incorrect and do not show proper service, the one                judgment to withstand direct attack. Wilson v. Dunn,
requesting service must amend the return prior to                800 S.W.2d 833, 836 (Tex. 1990); Ulvade Country Club
judgment.                                                        v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex.
                                                                 1985); McKanna v. Edgar [**3] , 388 S.W.2d 927, 929
Opinion by: PER CURIAM                                           (Tex. 1965); Flynt v. Kingsville, 125 Tex. 510, 82 S.W.2d
                                                                 934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876);
                                                                 Roberts v. Stockslager, 4 Tex. 307 (1849). There are no
Opinion                                                          presumptions in favor of valid issuance, service, and
                                                                 return of citation in the face of a writ of error attack on a
[*152] PER CURIAM                                                default judgment. Ulvade, 690 S.W.2d at 836; McKanna,
                                                                 388 S.W.2d at 929; Flynt, 82 S.W.2d at 934. Here, the
On appeal by writ of error from default judgment, we             plaintiffs argue that there is no error because the blanks
consider whether Defendant Primate Construction Co.,             filled in on the citation show the correct petition was
Inc. has shown error on the face of the record because           attached, while the only evidence to the contrary is a
the sheriff's pre-printed return of service states that          form on which the sheriff made no affirmative alteration.
Primate Construction was served with a version of the            This argument ignores the weight given to the recitations
plaintiff's petition in which it was not named as a              in the sheriff's return as proof of service.
defendant. Pursuant to Rule 170 of the Texas Rules of
Appellate Procedure, a majority of the court grants              HN3 The return of service is not a trivial, formulaic
Petitioner's application for writ of error and, without          document. It has long been considered prima facie
                                                                                                           Page 2 of 3
                                     884 S.W.2d 151, *152; 1994 Tex. LEXIS 130, **3



evidence of the facts recited therein. Pleasant Homes v.           service is properly accomplished. Tex. R. Civ. P. 99(a).
Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989);            This responsibility extends to seeing that service is
Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908, 909 (1889)             properly reflected in the record. The Rules of Civil
("The return of the officer imports absolute verity, and           Procedure allow for liberal amendment of the return of
was sufficient to authorize the rendition of judgment              service to show the true facts of service. Tex. R. Civ. P.
upon default . . . ."). See also Gerland's [**4] Food Fair,        118. If the facts as recited in the sheriff's return,
Inc. v. Hare, 611 S.W.2d 113, 116 (Tex. Civ.                       pre-printed or otherwise, are incorrect and do not show
App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.);                proper service, the one requesting service must amend
Pierce-Fordyce Oil Ass'n v. Staley, 190 S.W. 814, 815              the return prior to judgment. Under the current state of
(Tex. Civ. App.--Amarillo 1916, no writ). The recitations          the record, the only proof that Primate Construction was
in the return of service carry so much weight that they            served with anything at all is a return which recites
cannot be rebutted by the uncorroborated proof of the
                                                                   service of a pleading in which it had not been sued.
moving party. Ward v. Nava, 488 S.W.2d 736, 738 (Tex.
1972); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d                 Proper service not being affirmatively shown, there is
206, 209 (Tex. 1950); Gatlin, 11 S.W. at 909;                      error on the face of the record, and the court of appeals
Pierce-Fordyce, 190 S.W. at 815. The weight given to               erred in holding otherwise. Pursuant to Rule 170 of the
the return is no less when the recitations impeach the             Texas Rules of Appellate Procedure, a majority of the
judgment than when they support it. 1                              court grants the application for writ [**6] of error of
                                                                   Primate Construction Co., Inc. and, without hearing oral
 [**5] The officer's return does not cease to be prima
                                                                   argument, reverses the judgment of the court of appeals
facie evidence of the facts of [*153] service simply               and remands the cause to the trial court.
because the facts are recited in a form rather than filled
in by the officer. HN4 It is the responsibility of the one         OPINION DELIVERED: September 15, 1994
requesting service, not the process server, to see that




1
   Primate Construction also argues that the record does not demonstrate the authority of person served to accept service of
process on its behalf; however, the Court of Appeals correctly decided this point. The Sheriff's return recited that the person
served was Primate Construction's registered agent. A registered agent is authorized to accept service of process for the
corporation. Tex. Bus. & Com. Code Ann. § 2.11 (Vernon 1980). The return is prima facie evidence of a person's status as a
registered agent in the same way that it is prima facie evidence of a corporate officer's status. See Pleasant Homes, Inc. v. Allied
Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989).
                                                                                                                       Page 3 of 3
|   | Caution
As of: April 7, 2015 5:58 PM EDT


                                     Quaestor Invs., Inc. v. Chiapas
                                                 Supreme Court of Texas
                                             July 1, 1999, Opinion Delivered
                                                        No. 98-0835

Reporter
997 S.W.2d 226; 1999 Tex. LEXIS 85; 42 Tex. Sup. J. 1016

QUAESTOR INVESTMENTS, INC., PETITIONER v.                        With only 14 days remaining in its six-month window to
STATE OF CHIAPAS, A STATE OF THE UNITED                          appeal the default judgment, respondent removed the
MEXICAN STATES, RESPONDENT                                       case to federal court, which suspended the limitations
                                                                 period. The federal court found the removal to be
Prior History: [**1] ON PETITION FOR REVIEW                      untimely, and remanded the action back to state court.
FROM THE COURT OF APPEALS FOR THE FIRST                          Respondent filed its writ of error eight months later. The
DISTRICT OF TEXAS.                                               court held that the appeals timetable recommenced
                                                                 upon the re-vesting of jurisdiction in the state court,
Disposition: Vacated the judgment of the court of                which occurred when the federal court executed the
appeals, and dismissed appeal.                                   remand order and mailed a copy to the state court. The
                                                                 court rejected the lower court's reasoning that under
Core Terms                                                       Tex. R. Civ. P. 237a, the timetable did not recommence
                                                                 until the party seeking remand gave notice to the other
                                                                 party. Accordingly, the court vacated the judgment of
state court, remand order, timetable, court of appeals,          the lower court and dismissed respondent's writ of error.
writ of error, mailed, federal district court, certified copy,
federal court, revesting, default judgment, writ petition,       Outcome
recommence
                                                                 The court vacated the judgment that denied petitioner
Case Summary                                                     investment company's motion to dismiss respondent
                                                                 Mexican state's writ of error to appeal. The court found
Procedural Posture                                               that the appellate timetable recommenced when the
                                                                 federal court executed the remand order and mailed a
Petitioner investment company sought review of a                 copy to the state court. Finding that respondent failed to
judgment from the Court of Appeals for the First District        file the writ of error within six months of that event, the
of Texas, which denied petitioner's motion to dismiss            court dismissed respondent's appeal.
respondent Mexican state's writ of error to appeal a
default judgment. Petitioner asserted that the writ of           LexisNexis® Headnotes
error was not filed within the six-month time period
required under Tex. R. App. P. 59.1, following an attempt
                                                                   Civil Procedure > Appeals > Appellate Jurisdiction > Final
by respondents to remove the case to federal court.
                                                                   Judgment Rule

Overview                                                           Governments > Legislation > Statute of Limitations > Time
                                                                   Limitations
Judgment reversed against petitioner investment
company's motion to dismiss for want of jurisdiction             HN1 The four elements necessary for review by writ of
after respondent Mexican state filed a writ of error to          error are: (1) the petition must be brought within six
appeal a default judgment. The court held that the writ          months of the date of judgment; (2) by a party to the suit;
of error was not filed within the required six-month time        (3) who did not participate in the trial; and (4) error must
period of Tex. R. App. P. 59. Petitioner's obtained a            be apparent from the face of the record. The six-month
default judgment against respondent in state court.              time limit is mandatory and jurisdictional.
                                    997 S.W.2d 226, *226; 1999 Tex. LEXIS 85, **1


    Civil Procedure > ... > Removal > Postremoval Remands >     of jurisdiction, arguing that the petition for review was
    General Overview                                            not timely filed. Thus, the question in this case is when
    Civil Procedure > ... > Removal > Postremoval Remands >     did the appellate timetable recommence after remand?
    Jurisdictional Defects                                      The court of appeals held that the timetable did not
                                                                recommence until the party seeking remand had given
    Governments > Courts > Clerks of Court
                                                                notice to the other party in the case. State of Chiapas v.
HN2 Remanding a case to state court terminates the              Quaestor Investments, Inc., 982 S.W.2d 144. We
jurisdiction of a federal district court over that case.        disagree and hold that the appellate timetable
There is no requirement that the state court take any           recommences upon the revesting of jurisdiction in the
action to reassert jurisdiction. In answering the question      state court, which occurs when the federal district court
of when a jurisdictional transfer occurs between federal        executes the remand order and mails a certified copy of
and state court, most courts have looked to 28 U.S.C.S.         the remand order to the state court. We conclude in this
§ 1447(c), which provides, in part, that: a certified copy      case that the State [**2] of Chiapas failed to file its
of the order of remand shall be mailed by the clerk to the      petition for writ of error within the time frame provided by
clerk of the State court. The State court may thereupon         the Texas Rules of Appellate Procedure, and accordingly
proceed with such case. These courts have interpreted           vacate the judgment of the court of appeals and dismiss
this language to mean that the federal court loses              the appeal.
jurisdiction once the federal court clerk has mailed a
                                                                During the mid-1980s, Quaestor Investments, Inc., a
certified copy of the remand order to the state court
                                                                Texas corporation, purchased coffee from cooperatives
clerk.
                                                                located in the State of Chiapas, a State of the United
                                                                Mexican States. After conflicts in their business
    Civil Procedure > ... > Removal > Postremoval Remands >
    General Overview                                            relationship, Quaestor sued the cooperatives in a Texas
                                                                district court in 1986. The cooperatives did not answer,
    Civil Procedure > ... > Removal > Postremoval Remands >     and the court granted a default judgment for Quaestor.
    Jurisdictional Defects
                                                                In March 1994, Quaestor sued the State of Chiapas,
HN3 Looking to the language of 28 U.S.C.S. § 1447(c),
                                                                alleging fraud and conspiracy to prevent Quaestor from
as well as § 1447(d), which makes § 1447(c) remands
                                                                executing the default judgment on the cooperatives'
unappealable, courts recognize the need for a
                                                                assets. Chiapas did not answer. On April 19, 1995, the
determinable jurisdictional event after which the state
                                                                court granted a default judgment for Quaestor, and in
court can exercise control over the case without further
                                                                May 1995, Quaestor began proceedings to collect on its
fear of further federal interference. Courts have then
                                                                judgment.
identified the mailing of the certified copy of the remand
order as the key jurisdictional event, because a remand         On October 5, 1995, Chiapas removed the lawsuit to
order is not self-executing.                                    federal court pursuant to 28 U.S.C. § 1441(d). The
                                                                federal district court ruled that the removal was untimely
Opinion                                                         and on December 28, 1995, remanded the case to state
                                                                court pursuant to 28 U.S.C. § 1447(c). On February 2,
[*227] Per Curiam                                                [**3] 1996, Chiapas appealed the remand order to the
                                                                United States Court of Appeals for the Fifth Circuit,
With fourteen days remaining in its six-month window to         which dismissed the appeal for want of jurisdiction on
appeal a default judgment by writ of error, the State of        August 16, 1996.
Chiapas removed this case to federal district court. The
federal district court remanded to state district court         On August 29, 1996, Chiapas filed a petition for writ of
pursuant to 28 U.S.C. § 1447(c). Approximately eight            error to the court of appeals. 1 Quaestor moved the
months later, Chiapas filed its petition for writ of error.     court to dismiss Chiapas's petition for writ of error as
Quaestor Investments, Inc., moved to dismiss for want           untimely. The court of appeals overruled Quaestor's

1
   This case concerns a writ of error appeal filed in 1996 under rule 45 of the former Rules of Appellate Procedure. See TEX.
R. APP. P. 45, 49 Tex. B.J. 570 (Tex. 1986, superseded 1997). Restricted appeals replace writ of error appeals under the new
Rules of Appellate Procedure. See TEX. R. APP. P. 30.
                                                                                                                Page 2 of 4
                                      997 S.W.2d 226, *227; 1999 Tex. LEXIS 85, **3



motion to dismiss and later reversed the default                    the court to reinstate an appeal stayed by a bankruptcy
judgment and remanded the case to the trial court. 982              proceeding. Concluding that these rules require
S.W.2d at 144-145. Quaestor petitioned for review of                affirmative action before procedural timetables restart,
the court of appeals' judgment, complaining about the               the court similarly determined that the appellate
denial of its motion to dismiss.                                    timetable should not recommence until the party seeking
                                                                    remand [**6] acts affirmatively by giving notice to the
HN1 The four elements necessary for review by writ of               other party. While we agree with the court of appeals'
error are: (1) [**4] the petition must be brought within            determination of when state court jurisdiction revested,
six months of the date of judgment; (2) by a party to the           we disagree that we must look any further than that date
suit; (3) who did not participate in the trial; and (4) error       to determine when the timetable for filing a writ of error
must be apparent from the face of the record. See                   appeal began to run again.
Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985).
The six-month time limit is mandatory and jurisdictional.           HN2 Remanding a case to state court terminates the
See Linton v. Smith, 137 Tex. 479, 154 S.W.2d 643, 645              jurisdiction of a federal district court over that case. See
(Tex. 1941).                                                        Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir.
                                                                    1992); Browning v. Navarro, 743 F.2d 1069, 1078 (5th
Quaestor does not contest that filing the removal                   Cir. 1984). There is no requirement that the state court
suspended the appellate timetable. And Chiapas                      take any action (e.g., entering the order in the state
acknowledges that when [*228] it removed the case to                court docket) to reassert jurisdiction. See Mathewson v.
federal court on October 5, 1995, it had fourteen days              Aloha Airlines, Inc., 82 Haw. 57, 919 P.2d 969, 985-86
left to file its petition for writ of error. Thus, the only issue   (Haw. 1996). In answering the question of when a
presented is when the appellate timetable began to run              jurisdictional transfer occurs between federal and state
again.                                                              court, most courts, including the court of appeals in this
                                                                    case, have looked to 28 U.S.C. § 1447(c), which
Quaestor argues that the timetable recommenced when                 provides, in part, that: "A certified copy of the order of
the federal district court entered its remand order                 remand shall be mailed by the clerk to the clerk of the
(December 28, 1995) or when the state court                         State court. The State court may thereupon proceed
acknowledged receipt of the remand order (January 10,               with such case." These courts have interpreted this
1996). Chiapas responds that the timetable                          language to mean [**7] that the federal court loses
recommenced when the Fifth Circuit dismissed the                    jurisdiction once the federal court clerk has mailed a
appeal of the remand order (August 16, 1996) or when                certified copy of the remand order to the state court
Chiapas mailed a copy of the remand order to the state              clerk. See McClelland v. Gronwaldt, 155 F.3d 507, 513
district clerk (September 6, 1996). Either of Chiapas'              & n.15 (5th Cir. 1998); Trans Penn Wax Corp. v.
dates would make its August [**5] 29, 1996 writ of error            McCandless, 50 F.3d 217, 225 (3d Cir. 1995); Hunt, 961
appeal timely while either of Quaestor's dates would                F.2d at 1081; see also Seedman v. United States Dist.
make the appeal untimely.                                           Court, 837 F.2d 413, 414 (9th Cir. 1988); Browning, 743
                                                                    F.2d at 1078; Federal Deposit Ins. Corp. v. Santiago
The court of appeals determined that the state court                Plaza, 598 F.2d 634, 636 (1st Cir. 1979). But see In re
reacquired jurisdiction on the date the federal court               Lowe, 102 F.3d 731, 735 (4th Cir. 1996) (holding that
clerk mailed a certified copy of the remand order to the            jurisdiction returns to the state court when the district
state court clerk. The court further concluded that when            court enters the remand order); New Mexico ex rel.
the appellate timetable recommenced was determined                  Village of Los Ranchos De Albuquerque v. City of
not by the revesting of jurisdiction, but rather depended           Albuquerque, 889 P.2d 204, 206-07 (N.M. Ct. App.
upon the procedural implications of that revesting under            1993) (same).
Texas law. The court looked to Texas procedural rules
for its answer: (1) Rule of Civil Procedure 237a, which             In McCandless, the Third Circuit Court of Appeals
provides that a defendant need not answer in a                      explained the rationale behind the general rule. HN3
remanded case until fifteen days after the plaintiff files          Looking to the language of section 1447(c), as well as
the remand order with the state court and gives written             section 1447(d), which makes section 1447(c) remands
notice of the filing to the adverse parties' attorneys; and          [*229] unappealable, the court recognized the need for
(2) current Rule of Appellate Procedure 8, which                    a "determinable jurisdictional event after which the state
provides that affirmative action is required by a party or          court can exercise control over the case without further
                                                                                                                  Page 3 of 4
                                   997 S.W.2d 226, *229; 1999 Tex. LEXIS 85, **7



fear [**8] of further federal interference." 50 F.3d at 225.   the completed remand [**9] begins it again. No Texas
The court then identified the mailing of the certified copy    procedural rule imposes a notice requirement under
of the remand order as the "key jurisdictional event,"         these circumstances. The court of appeals erred when
because a remand order is not self-executing. Id.              it inferred from civil procedure rule 237a and appellate
                                                               rule 8 that any further affirmative action was needed.
We agree with the Third Circuit's reasoning, and
following the majority rule as did the court of appeals,       In support of its motion to dismiss, Quaestor provided a
we hold that jurisdiction revests in the state court when      certified copy of the federal court docket sheet in this
the federal district court executes the remand order and       case. The docket sheet indicates that the remand order
mails a certified copy to the state court. To the extent       was signed and mailed on December 28, 1995.
that earlier Texas court of appeals cases indicate that        Therefore, jurisdiction revested in the state court and
jurisdiction revests when the federal court executes the       the appellate timetable recommenced on that day. The
remand order, we disapprove of that language. See              time for appealing by writ of error appeal expired
Brogdon v. Ruddell, 717 S.W.2d 675, 677 (Tex. App. --          fourteen days later on January 11, 1996. Because the
Texarkana 1986, writ ref'd n.r.e.); Reimer v. Scott, 666       State of Chiapas did not file its writ of error appeal until
S.W.2d 384, 385 (Tex. App. -- Houston [14th Dist] 1984,        August 29, 1996, the court of appeals did not have
writ dism'd); Brown v. State Farm Mut. Auto. Ins. Co.,         jurisdiction to hear the appeal. Accordingly, without
449 S.W.2d 93, 96 (Tex. Civ. App. -- Fort Worth 1969, no       hearing oral argument, the Court grants Quaestor's
writ).                                                         petition for review, vacates the judgment of the court of
                                                               appeals, and dismisses the appeal. See TEX. R. APP.
We are further persuaded that nothing more is required         P. 59.1.
to recommence the appellate timetable than the state
court's reaquiring jurisdiction over a case. Just as the       OPINION DELIVERED: July 1, 1999
filing of the removal suspends the appellate timetable,




                                                                                                               Page 4 of 4
|   | Caution
As of: April 7, 2015 5:59 PM EDT


                           Ragsdale v. Progressive Voters League
                                              Supreme Court of Texas
                                           December 31, 1990, Delivered
                                                     No. D-0171

Reporter
801 S.W.2d 880; 1990 Tex. LEXIS 156; 34 Tex. Sup. J. 254

PAUL RAGSDALE, Petitioner v. PROGRESSIVE                     Outcome
VOTERS LEAGUE, Respondent
                                                             The court reversed the decision of the trial court which
                                                             only awarded $ 150 in attorney's fees to petitioner
Prior History: [**1] From Dallas County, Fifth District.
                                                             election candidate. On review, the court stated that
                                                             there was clear, direct and positive evidence to prove
Core Terms                                                   that petitioner was entitled to a larger award for
                                                             attorney's fees from respondent voter league and that
attorney's fees, circumstances, contradicted, trial court,   the trial court abused its discretion when it made its
appeals, interested witness, Election, damages               award.


Case Summary                                                 LexisNexis® Headnotes

                                                               Civil Procedure > Remedies > Costs & Attorney Fees >
Procedural Posture                                             General Overview
Petitioner election candidate challenged the ruling of         Civil Procedure > Appeals > Standards of Review > Abuse
the District Court for Dallas County (Texas), which            of Discretion
granted him injunctive relief but denied him damages
                                                             HN1 In awarding attorney's fees the trial court, as the
and attorney's fees in his suit against respondent voter
                                                             trier of fact, must take into account various factors such
league for violations of the Texas Election Code.
                                                             as: the nature and complexity of the case; the nature of
                                                             the services provided by counsel; the time required for
Overview
                                                             trial; the amount of money involved; the client's interest
Petitioner election candidate was seeking reelection as      that is at stake; the responsibility imposed upon counsel;
state representative for a particular county. Petitioner     and the skill and expertise required. Ordinarily, the
investigated respondent voter league's campaign              allowance of attorney's fees rests with the sound
activities and discovered that the campaign treasurer        discretion of the trial court and will not be reversed
                                                             without a showing of abuse of that discretion.
had not been designated as required by the election
code. Petitioner sued respondent for violations of the
                                                               Evidence > ... > Testimony > Credibility of Witnesses >
Texas Election Code. He was granted injunctive relief,
                                                               General Overview
but was denied damages and attorney's fees. On
remand, the trial court awarded damages of $ 1 and $         HN2 It is the general rule that the testimony of an
150 for attorney's fees. Petitioner appealed again and       interested witness, such as a party to the suit, though
the court of appeals reformed the judgment holding that      not contradicted, does no more than raise a fact issue to
the statutory penalty of twice the amount that               be determined by the jury. But there is an exception to
respondent had illegally spent on the rival candidate        this rule, which is that where the testimony of an
was required as damages. On final review, the court          interested witness is not contradicted by any other
held that it was clear that the trial court abused its       witness, or attendant circumstances, and the same is
discretion in awarding only $ 150 for attorney's fees.       clear, direct and positive, and free from contradiction,
Therefore, the court remanded the cause to the trial         inaccuracies, and circumstances tending to cast
court for a new trial on attorney's fees.                    suspicion thereon, it is taken as true, as a matter of law.
                                    801 S.W.2d 880, *880; 1990 Tex. LEXIS 156, **1


    Evidence > ... > Testimony > Credibility of Witnesses >     Opinion by: PER CURIAM
    General Overview
    Evidence > ... > Credibility of Witnesses > Impeachment >   Opinion
    General Overview

HN3 The exception to the interested witness rule is               [*881]   Paul Ragsdale sued the Dallas County
especially true where the opposing party has the means          Democratic Progressive Voters League for violations of
and opportunity of disproving the testimony, if it is not       the Election Code. 1 He was granted injunctive relief,
true, and fails to do so. In other words, failure to            but was denied damages and attorney's fees. 743
contradict is another factor to be considered by the            S.W.2d 338. On remand the trial court awarded
court; but it does not necessarily preclude the holding         damages of $ 1 and $ 150 for attorney's fees. Ragsdale
that a fact issue is raised when there are circumstances        again appealed and the court of appeals reformed the
in evidence tending to discredit or impeach the                 judgment holding that the statutory penalty of twice the
testimony of the interested witness.                            amount that the committee had illegally spent on the
                                                                rival candidate is required; and, holding an abuse of
    Civil Procedure > Judgments > Pretrial Judgments >          discretion, severed the attorney's fees portion
    General Overview                                            remanding that issue for a new trial. 790 S.W.2d 77. We
    Civil Procedure > ... > Pretrial Judgments > Default &      affirm the judgment of the court of appeals regarding
    Default Judgments > General Overview                        the damages issue, but reverse and render judgment
                                                                for Ragsdale awarding the amount of attorney's fees
    Civil Procedure > ... > Pretrial Judgments > Default &
    Default Judgments > Default Judgments                       that evidence at trial showed to be reasonable and
                                                                uncontroverted in the amount of $ 22,500.
    Civil Procedure > Remedies > Costs & Attorney Fees >
    General Overview                                             [**2] Paul Ragsdale was seeking reelection as state
    Evidence > ... > Testimony > Credibility of Witnesses >     representative from Dallas County District 110. The
    General Overview                                            PVL was organized in 1936 as an educational purpose
                                                                group. The group had evolved to the point that it
HN4 In order for the court to award an amount of                sponsored activities that promoted awareness of issues
attorneys' fees as a matter of law, the evidence from an        affecting minorities. Although the PVL had previously
interested witness must not be contradicted by any              endorsed Paul Ragsdale, it was active in the primary
other witness or attendant circumstances and the same           election in 1986 supporting an opponent. Ragsdale
must be clear, direct and positive, and free from               investigated the PVL's campaign activities and
contradiction, inaccuracies and circumstances tending           discovered that the campaign treasurer had not been
to case suspicion thereon. The court, as a trier of fact,       designated as required by the Election Code. Ragsdale
may award attorneys' fees as a matter of law in such            filed suit seeking an injunction and damages. This
circumstances, especially when the opposing party has           decision today is subsequent to two trials and their
the means and opportunity of disproving the testimony           attendant appeals.
or evidence and fails to do so. In default judgment
situations, the same rule applies if there is evidence          The court of appeals has correctly awarded the statutory
presented to the trial court which meets the same               penalty for the violations of the Election Code. The
criteria.                                                       Code also authorizes an award of reasonable attorney's
                                                                fees. 2 Uncontroverted evidence was presented at trial
Counsel: Hughes, Mr. Jerry Lee, Bliss & Hughes,                 that the attorney's fees for this cause of action, which
Dallas, Texas, Collins, Mr. John E., Dallas, Texas, for         began with a temporary injunction in April 1986, totaled
Petitioner.                                                     $ 22,500. HN1 In awarding attorney's fees the trial
                                                                court, as the trier of fact, must take into account various
Hicks, Sr., Mr. Donald W., Law Ofcs of Donald W. Hicks,         factors such as: the nature and complexity of the case;
Sr., P.C., Dallas, Texas, for Respondent.                       the nature [**3] of the services provided by counsel; the

1
   The suit was filed under sections 251.002(f)(2), 251.002(g) and 251.008(a) of the Texas Elation Code. Now codified at Tex.
Elec. Code Ann. § 253.031 (Vernon's Supp. 1990).
2
    Now codified at § 253.131(d)(2) Tex. Elec.Code Ann. (Vernon's Supp. 1990).
                                                                                                                Page 2 of 3
                                   801 S.W.2d 880, *881; 1990 Tex. LEXIS 156, **3



time required for trial; the amount of money involved;         general rule, we do not mean to imply that in every case
the client's interest that is at stake; the responsibility     when uncontradicted testimony is offered it mandates
imposed upon counsel; and the skill and expertise              an award of the amount claimed. For example, even
required. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188        though the evidence might be uncontradicted, if it is
S.W.2d 155 (1945) (time required); Vaughn v. Gunter,           unreasonable, incredible, or its belief is questionable,
458 S.W.2d 523 (Tex.Civ.App. -- Dallas), aff'd, 461            then such evidence would only raise a fact issue to be
S.W.2d 599 (Tex. 1970) (client's interest and money            determined by the trier of fact. HN4 In order for the court
involved); Weatherly v. Longoria, 292 S.W.2d 139 (Tex.         to award an amount of attorneys' fees as a matter of
Civ. App. -- San Antonio 1956, writ ref'd n.r.e.) (skill       law, the evidence from an interested witness must not
required). Accord Tuthill v. Southwestern Public Service       be contradicted by any other witness or attendant
Co., 614 S.W.2d 205 (Tex Civ. App. -- Amarillo 1981,           circumstances and the same must be clear, direct and
writ ref'd n.r.e.). Ordinarily, the allowance of attorney's
                                                               positive, and free from contradiction, inaccuracies and
fees rests with the sound discretion of the trial court and
                                                               circumstances tending to case suspicion thereon. The
will not be reversed without a showing of abuse of that
                                                               court, as a trier of fact, may award attorneys' fees as a
discretion.
                                                               matter of law in such circumstances, especially when
                                                               the opposing party has the means and opportunity of
 [*882] HN2 It is the general rule that the testimony of an
                                                               disproving the testimony or evidence and fails to do so.
interested witness, such as a party to the suit, though
not contradicted, does no more than raise a fact issue to      In default judgment situations, the same rule applies if
be determined by the jury. But there is an exception to        there is evidence presented to the trial court which
this rule, which is that where the testimony of an             meets the same criteria. In this situation the evidence
interested witness is not contradicted by any other            may be uncontradicted, but the trial judge could find
witness, [**4] or attendant circumstances, and the             some of the [**6] claimed fees to be unreasonable,
same is clear, direct and positive, and free from              unwarranted, or some other circumstance which would
contradiction, inaccuracies, and circumstances tending         make an award of the uncontroverted claim wrong. In
to cast suspicion thereon, it is taken as true, as a matter    the present case it is clear that the trial court abused its
of law.                                                        discretion in awarding only $ 150 in attorney's fees.
                                                               Ragsdale's attorneys testified as to the time involved,
Cochran v. Wool Growers Central Storage Co., 140               the nature of the services that were rendered, and the
Tex. 184, 166 S.W.2d 904, 908 (1942).                          reasonableness of the fees charged. This evidence was
                                                               uncontroverted. We hold the evidence is clear, direct
Accord, McGilliard v. Kuhlmann, 722 S.W.2d 694 (Tex.           and positive, and not contradicted by any other witness
1986).                                                         or attendant circumstances, and there is nothing to
                                                               indicate otherwise. In the interest of judicial economy,
HN3 The exception to [this] interested witness rule . . . is   we reverse the judgment of the court of appeals that
especially true where the opposing party has the means         remanded the attorney's fees issue for a new trial and
and opportunity of disproving the testimony, if it is not      render judgment for Ragsdale.
true, and fails to do so . . . . In other words, failure to
contradict is another factor to be considered by the           Accordingly, we grant the application of Paul Ragsdale,
court; but it does not necessarily preclude the holding        and pursuant to Tex. R. App. P. 170, without hearing oral
that a fact issue is raised when, as here, there are           argument, a majority of this court affirms that portion of
circumstances in evidence tending to discredit or              the court of appeals judgment awarding damages and
impeach the testimony of the interested witness.               penalties under the Election Code, and reverses that
                                                               portion which remanded the cause to the trial court for a
Anchor Casualty Co. v. Bowers, 393 S.W.2d 168,                 new trial on attorney's fees. Judgment is rendered in
169-170 (Tex. 1965)(emphasis in original).                     favor of Ragsdale for attorney's fees [**7] in the amount
                                                               of $ 22,500.
[**5] While the present case fits the exception to the




                                                                                                               Page 3 of 3
                                                                                                               Page 1




Positive
As of: Mar 30, 2015

                   REED ELSEVIER, INC. d/b/a LEXIS NEXIS, Appellant v. CARROLL-
               TON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, COUNTY OF
                       DALLAS, AND CITY OF FARMERS BRANCH, Appellees

                                                 No. 05-04-00821-CV

                        COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                                    180 S.W.3d 903; 2005 Tex. App. LEXIS 10313


                                          December 12, 2005, Opinion Filed

SUBSEQUENT HISTORY:               Released for Publica-
                                                                  Reed Elsevier, Inc. d/b/a Lexis Nexis brings a re-
tion January 17, 2005.
                                                             stricted appeal from a default judgment in favor of Car-
Petition for review denied by Carrollton-Farmers
                                                             rollton-Farmers Branch Independent School District
Branch Indep. Sch. Dist. v. Reed Elsevier, Inc., 2006 Tex.
                                                             (CFBISD), County of Dallas, and City of Farmers
LEXIS 452 (Tex., May 5, 2006)
                                                             Branch for delinquent property taxes. Reed Elsevier
                                                             contends there is fatal error shown on the face of the
PRIOR HISTORY:              [**1] On Appeal from the
                                                             return of service. Reed Elsevier argues service of process
191st Judicial District Court, Dallas County, Texas. Trial
                                                             was defective because the return does not identify the
Court Cause No. TX03-41181-T-J.
                                                             person served as an agent of its corporate registered
                                                             agent. We agree and we reverse the trial court's judgment
DISPOSITION:          REVERSED and REMANDED.
                                                             and remand the cause for further proceedings consistent
                                                             with this opinion.
COUNSEL: For APPELLANT: Mr. Bryan P. Neal,
                                                             I. Factual and Procedural Background
Thompson & Knight, P.C., Dallas, TX.
                                                                 In its original petition for delinquent ad valorem
For APPELLEE: Mr. Daniel K. Bearden, Dallas, TX;             taxes, CFBISD described defendant as follows:
Gregg M. McLaughlin, Perdue, Brandon, Fielder, Collins
& Mott, L.P., Arlington, TX; Edward Lopez, Jr., Shelia                 Reed Elsevier, Inc. d/b/a Lexis Nexis
Fuqua Carter, Linebarger Goggan Blair Sampson, LLP,
                                                                        Successor in Interest to Courtlink
Dallas, TX.
                                                                    Corporation d/b/a JusticeLink,
JUDGES: Before Justices Moseley, Francis, and Maz-                     by serving Registered Agent, Lexis
zant. Opinion By Justice Moseley.                                   Document Services, Inc., at:

OPINION BY: JIM MOSELEY                                                 3610-2 Josey [**2] Lane, Suite #
                                                                    223 Carrollton, TX 75007
OPINION
     [*904] Opinion By Justice Moseley
                                                                                                                    Page 2
                                   180 S.W.3d 903, *; 2005 Tex. App. LEXIS 10313, **


The citation for personal service is addressed to the same      been considered prima facie evidence of the facts recited
above description and address for defendant. The return         therein. Id. at 152. In a restricted appeal, defective ser-
of service indicates service was completed by "delivering       vice of process constitutes error apparent on the face of
to the within named Reed Elsevier Inc DBA Lexis Nexis           the record. See id. at 153.
Successor in Interest to Courtlink Corporation DBA Jus-
                                                                     A domestic or foreign corporation authorized to
ticeLink By delivering to Reg Agent Lexis Document
                                                                transact business in Texas may be served with process
Services Inc By delivering to Danielle Smith."
                                                                through its president, any vice president, or its registered
     Reed Elsevier did not file an answer or appear in          agent. See TEX. BUS. CORP. ACT ANN. Arts. 2.11, 8.10
court and a default judgment was signed on December 3,          (Vernon 1980). A corporation may act as the registered
2003. Reed Elsevier filed a notice of restricted appeal,        agent for another domestic or foreign corporation. See
with a motion for extension of time to file restricted ap-      TEX. BUS. CORP. ACT ANN. Art. 2.09 (Vernon Supp.
peal, on June 16, 2004. Appellant's motion for extension        2004-05), Art. 8.08 (Vernon 1980). Although a corpora-
was granted by this Court, and its restricted appeal            tion may act as the registered agent for another corpora-
deemed timely.                                                  tion, [**5] a corporation is not a person capable of
                                                                accepting process, and must be served through its agents.
II. Restricted Appeal                                           See All Commercial Floors, Inc. v. Barton & Rasor, 97
                                                                S.W.3d 723, 727 (Tex. App.-Fort Worth 2003, no pet.).
     A restricted appeal must: (1) be brought within six
                                                                The record must show whether the person served was in
months after the trial court signs the judgment; (2) by a
                                                                fact such an agent for the corporation acting as the regis-
party; (3) who did not participate in the trial; and (4) the
                                                                tered agent. See Nat'l. Med. Enter. of Texas, Inc. v.
error complained of must be apparent on the face of the
                                                                Wedman 676 S.W.2d 712, 715 (Tex. App.-El Paso 1984,
record. TEX. RS. APP. P. 26.1(c), 30; Sutton v. Hisaw &
                                                                no writ) (holding domestic corporate defendant was
Assocs. [*905] Gen. Contractors, Inc., 65 S.W.3d 281,
                                                                properly served where return identified person served
284 (Tex. App.-Dallas 2001, pet. denied). For purposes
                                                                with citation as registered agent for defendant's corporate
[**3] of a restricted appeal, the face of the record con-
                                                                registered agent); White Motor Co. v. Loden, 373 S.W.2d
sists of all the papers on file before the judgment as well
                                                                863, 865 (Tex. Civ. App.-Dallas 1963, no writ) (holding
as any reporter's record. Norman Communications v.
                                                                record did not show person served with citation was au-
Texas Eastman Co., 955 S.W.2d 269, 270, 41 Tex. Sup.
                                                                thorized agent for accepting service for corporate regis-
Ct. J. 83 (Tex. 1997). In this case, the first three elements
                                                                tered agent for foreign corporation defendant).
of a restricted appeal are not contested. Rather the dis-
pute concerns whether there is error on the face of the
                                                                IV. Discussion
record. 1
                                                                     In this case, the return does not indicate the capacity
       1 There is no reporter's record in this appeal.          of "Danielle Smith" or why she was served with process.
       On the face of clerk's record, we can not tell           Her name is handwritten on the face of the citation
       whether Reed Elsevier and its registered agent           without designation of her status with Lexis Document
       Lexis Document Services, Inc. are domestic or            Services, Inc. The return merely recites service [**6]
       foreign corporations. However, such status is not        "by delivering to Danielle Smith," without explaining her
       critical to our resolution of this restricted appeal.    authority to receive service. Neither the return nor any
       Cf. Infra-Pak (Dallas), Inc. v. Narmour, 852             other portion of the record designates her authority to
       S.W.2d 565, 567 (Tex. App.-Dallas 1992, no writ)         receive service on behalf of Reed Elsevier's registered
       (concluding in regular appeal no distinction be-         agent. Without indication of her capacity to receive ser-
       tween proof of proper service on a foreign and a         vice on the face of [*906] the record, the granting of
       domestic corporation).                                   the default judgment was improper. See Primate Constr.
                                                                Inc., 884 S.W.2d at 153; see also Nat'l. Med. Enter. of
III. Applicable Law on Service of Process                       Texas, Inc., 676 S.W.2d at 715; White Motor Co., 373
                                                                S.W.2d at 865.
     A default judgment cannot withstand direct attack
by a defendant [**4] who complains he was not served
                                                                V. Conclusion
in strict compliance with applicable requirements. Wilson
v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60                 Having determined there is error on the face of the
(Tex. 1990). In a direct attack on a default judgment,          record regarding proper service on Reed Elsevier's regis-
there are no presumptions in favor of valid issuance, ser-      tered agent, we find the trial court lacked jurisdiction to
vice, and return of citation. See Primate Constr. Inc. v.       enter the default judgment against Reed Elsevier. Find-
Silver, 884 S.W.2d 151, 152, 37 Tex. Sup. Ct. J. 1216           ing this error dispositive of this appeal, we do not need to
(Tex. 1994) (per curiam). The return of service has long        address appellant's remaining issues. See TEX. R. APP.
                                                                                   Page 3
                               180 S.W.3d 903, *; 2005 Tex. App. LEXIS 10313, **


P. 47.1. We reverse the trial court's judgment and re-        JIM MOSELEY
mand this case for further proceedings.
                                                              JUSTICE
                                                                                                                 Page 1




Positive
As of: Mar 30, 2015

                 MARIA REGALADO, D/B/A, FRED REGALADO BAIL BONDS, Appellant, v.
                               THE STATE OF TEXAS, Appellee.

                                               NUMBER 13-95-271-CV

                    COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS
                                           CHRISTI

                                     934 S.W.2d 852; 1996 Tex. App. LEXIS 4973


                                             November 7, 1996, delivered
                                               November 7, 1996, filed

PRIOR HISTORY:              [**1] On appeal from the         because the citation and service of process were defec-
275th District Court of Hidalgo County, Texas.               tive. We affirm.
                                                                  Maria Regalado, d/b/a Fred Regalado Bail Bonds,
DISPOSITION:          Affirmed
                                                             surety on the bond of Armando Pineda, appeals from a
                                                             default judgment entered for the State in a bond forfei-
                                                             ture proceeding. Pineda failed to appear at arraignment, a
COUNSEL: For APPELLANT: Crispin (C.J.) Quinta-
                                                             judgment nisi issued, and service of process was effected
nilla, III, Quintanilla & Palacios, Attorneys at Law,
                                                             on appellant by way of scire [**2] facias command-
McAllen, TX. Keith C. Livesay, Attorney at Law,
                                                             ing her to appear and show cause why the judgment of
McAllen, TX.
                                                             forfeiture should not become final. Appellant failed to
                                                             appear or answer the scire facias and a default judgment
For APPELLEE: Rene Guerra, District Attorney, Theo-
                                                             was rendered against her.
dore C. Hake, William McPherson, Traci A. Sellman,
Assistant District Attorneys, Edinburg, TX.                       Upon learning of entry of the default judgment, ap-
                                                             pellant filed a motion for new trial seeking to have the
JUDGES: Before Chief Justice Seerden and Justices            default judgment set aside. After a hearing, the trial court
Dorsey and Chavez. Opinion by Chief Justice Seerden          orally granted the motion for new trial; however, the trial
                                                             court signed the written order granting the new trial after
OPINION BY: ROBERT J. SEERDEN                                its plenary power to do so had lapsed. Upon motion by
                                                             the State, the trial court, because of lack of jurisdiction,
OPINION                                                      subsequently rescinded the order granting the new trial.
                                                             Appellant now attacks the default judgment by a writ of
     [*853] OPINION
                                                             error to this court. Specifically, appellant raises two
    Opinion by Chief Justice Seerden                         points of error challenging the validity of the service of
                                                             process in the case below.
     Maria Regalado, appellant, files this appeal by writ
of error, asking this court to overturn a default judgment       To prevail in her appeal by writ of error, appellant
entered against her. By two points of error, she asserts     must (1) file the writ within six months after the final
that the trial court erred in granting a default judgment    judgment is signed; (2) be a party to the lawsuit; (3) not
                                                                                                                      Page 2
                                    934 S.W.2d 852, *; 1996 Tex. App. LEXIS 4973, **


have participated in the actual trial of the case; and (4)       written return of service said "Michael Poprowski" or
show error apparent from the face of the record. Stubbs          "Michael Popkowski").
v. Stubbs, 685 S.W.2d 643, 644 (Tex. [**3] 1985);
                                                                      Additionally, both parties point out that a return
Flores v. H.E. Butt Grocery Co., 802 S.W.2d 53, 55 (Tex.
                                                                 should be given a fair, reasonable, and natural construc-
App.--Corpus Christi 1990, no writ). The State concedes
                                                                 tion to its intent and meaning. Brown-McKee, Inc. v. J.
that the first three requirements were met. Therefore, at
                                                                 F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ.
issue is whether there is error apparent on the face of the
                                                                 App.--Texarkana 1975, no writ)(in a writ of error pro-
record.
                                                                 ceeding directly attacking default judgment, the return
     By her first point of error, appellant claims that the      should receive a fair, reasonable, and natural construc-
service of process was defective because she was not             tion, and effect given to its plain intent and meaning).
personally served with the scire facias. Specifically, she       See also Garza v. Zavala, 905 S.W.2d 312, 313 (Tex.
contends that the hand-written notation "c/o Maria Re-           App.--San Antonio 1995, no writ); Bavarian Autohaus,
galado" on the return of the citation, when given a fair,        Inc. v. Holland, 570 S.W.2d 110, 114 (Tex. Civ.
reasonable and natural construction, indicates that pro-         App.--Houston [1st Dist.] 1978, no writ). In fact, both
cess was not served on her personally.                           parties concede that the validity of appellant's first point
                                                                 of error (as well as the service of [**6] process in this
     When a default judgment is attacked by writ of er-
                                                                 case) is contingent upon the fair and reasonable con-
ror, it is essential that the record affirmatively show strict
                                                                 struction of the "c/o" symbol.
compliance with the provided manner and mode of ser-
vice of process. Primate Constr. v. Silver, 884 S.W.2d                In the case at hand, the citation names "Maria Rega-
151, 152 (Tex. 1994); McKanna v. Edgar, 388 S.W.2d               lado, DBA Fred Regalado Bail Bond" as the defendant
927, 929 (Tex. 1965); HB & WM, Inc. v. Smith, 802                and states that a true copy was "delivered to SURETY
S.W.2d 279, 281 (Tex. App.--San Antonio 1990, no                 MARIA REGALADO on the 15 day of 12, 1994." The
writ). A default judgment cannot withstand a direct at-          return states that a true copy of the citation was delivered
tack by a defendant who shows that he was not served in          to "Name: c/o Maria Regalado." In our opinion, the only
strict compliance with the law. Wilson v. Dunn, 800              fair and reasonable construction of the officer's return
S.W.2d 833, 836 (Tex. [**4] 1990). Failure to affirma-           indicates that the executing officer left the citation in the
tively show strict compliance with the rules of civil pro-       care of Maria Regalado; that is, in Maria Regalado's own
cedure renders the attempted service invalid, of no effect,      hands. We conclude that the return and the citation, giv-
and incapable of supporting a default judgment. Uvalde           ing both a fair, reasonable, and natural interpretation,
Country Club v. Martin [*854] Linen Supply Co., Inc,             show with reasonable certainty that the citation was per-
690 S.W.2d 884, 885 (Tex. 1985). Accordingly, when               sonally served on Maria Regalado. Accordingly, we hold
such strict compliance is NOT demonstrated, there is             that the record affirmatively shows that Maria Regalado,
error on the face of the record, and reversal of the judg-       doing business of Fred Regalado Bail Bonds, was per-
ment is warranted.                                               sonally served in strict compliance with the provided
                                                                 manner and mode of service of process. Appellant's first
     Strict compliance, however, does not require "obei-
                                                                 point of error is overruled.
sance to the minutest detail." Herbert, 915 S.W.2d 866,
871 (Tex. App.--Houston [1st Dist.] 1995, no writ); Ortiz             In her second point of error, appellant contends that
v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608,         the trial court erred in granting a default judgment be-
613 (Tex. App.--Corpus Christi 1996, writ requested). As         cause the citation [**7] was improper. Appellant main-
long as the citation and return show, with reasonable            tains that the citation is improper because it implies that
certainty, that the citation was served on the defendant in      a petition was being served when, in fact, no petition was
the suit, service of process will not be invalidated. See        either filed or served. Consequently, according to appel-
Ortizv. Avante Villa at Corpus Christi, Inc., 926 S.W.2d         lant, the resulting default judgment rendered herein was
at 613 (the omission of the accent mark and the substitu-        also improper. We disagree.
tion of the symbol " at " for the word "at" are akin to the
                                                                      Keeping in mind the need to show strict compliance
errors that do not invalidate service); Payne & Keller Co.
                                                                 with the rules of service and citation in the face of a di-
v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [**5]
                                                                 rect attack on a default judgment (see above), we note
[14th Dist.] 1987, writ ref'd n.r.e.) (judgment upheld
                                                                 that a bail bond forfeiture proceeding is a criminal pro-
where petition and citation reflected registered agent
                                                                 ceeding governed by the Texas Code of Criminal Proce-
"Philippe Petitfrere," the return reflected "Philipee Pet-
                                                                 dure. TEX. CODE CRIM. PROC. ANN. art. 22 (Vernon
itfreere"); Popkowsi v. Gramza, 671 S.W.2d 915, 918
                                                                 1989 and Supp. 1997). All forfeiture proceedings de-
(Tex. App.--Houston [1st Dist.] 1984, no writ) (judgment
                                                                 clared upon a bond shall be governed by the same rules
upheld where there was dispute of fact whether hand-
                                                                 that apply to other civil suits. See TEX. CODE CRIM.
                                                                                                                    Page 3
                                   934 S.W.2d 852, *; 1996 Tex. App. LEXIS 4973, **


PROC. ANN. art. 22.10 (Vernon 1989 and Supp. 1997);             support [**9] of her claim that the citation and the re-
Dees v. State, 865 S.W.2d 461, 462 (Tex. Crim. App.             sulting default judgment rendered herein is improper.
1993); State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim.
                                                                     We find that the citation in this case was in the form
App. 1990). Furthermore, in a bond forfeiture proceed-
                                                                provided by TEX. R. CIV. P. 99. In fact, the language
ing, the citation is sufficient if it is in the form provided
                                                                found in the first paragraph of the citation is the exact
for citations in civil cases. [*855] TEX. CODE. CRIM.
                                                                language prescribed by Rule 99. See TEX. R. CIV. P.
PROC. ANN. art. 22.04 (Vernon 1989 and Supp. 1997).
                                                                99(c). Additional references to a petition, or the fact that
Article 22.04 provides:
                                                                the judgment nisi is referred to as a petition, do not make
                                                                it any less clear that appellant was served with the ap-
           A [**8] citation shall be sufficient if
                                                                propriate documents. 1 As stated above, "even strict
       it be in the form provided for citations in
                                                                compliance does not require such absolute obeisance to
       civil cases in such court; provided, how-
                                                                the minutest detail." Herbert, 915 S.W.2d at 871; Ortiz v.
       ever, that a copy of the judgment of for-
                                                                Avante Villa at Corpus Christi, Inc., 926 S.W.2d at 613.
       feiture entered by the court shall be at-
       tached to the citation and the citation shall
                                                                       1 The citation or scire facias provided by the
       notify the parties cited to appear and show
                                                                       statute constitutes the State's pleadings in a bond
       cause why the judgment of forfeiture
                                                                       forfeiture case. Blue v. State, 170 Tex. Crim.
       should not be made final.
                                                                       449, 341 S.W.2d 917, 919 (1960); Pollock v.
                                                                       State, 164 Tex. Crim. 404, 299 S.W.2d 294, 296
                                                                       (1956). In such a proceeding, the scire facias
TEX. CODE CRIM. PROC. ANN. art. 22.04 (Vernon
                                                                       serves the purpose of both a petition and a cita-
1989 and Supp. 1997).
                                                                       tion. Hokr v. State, 545 S.W.2d 463, 467 (Tex.
     Significant to the resolution of this point of error, is          Crim. App. 1977) (citing Hester v. State, 15 Tex-
the fact that the Texas Rules of Civil Procedure com-                  as Ct. App. 418 (1884)). A separate petition is not
mand that reference be made in a civil citation to the                 necessary.
filed petition which commenced the suit. See TEX. R.
                                                                      [**10] Additionally, as required by TEX. CODE
CIV. P. 99. Rule 99 provides:
                                                                CRIM. PROC. ANN. art. 22.04, a copy of the judgment
                                                                nisi was attached and the citation notified the parties
           c. Notice. The citation shall include the
                                                                cited to appear and show cause why the judgment should
       following notice to the defendant: "You
                                                                not be made final. The citation in this case was in com-
       have been sued. You may employ an at-
                                                                pliance with the requirements of Article 22 of the Code
       torney. If you or your attorney do not file
                                                                of Criminal Procedure. Accordingly, we find appellant's
       a written answer with the clerk who is-
                                                                claim of a fatal defect in the citation to be without merit
       sued the citation by 10:00 a.m. on the
                                                                and overrule appellant's second point of error.
       Monday next following the expiration of
       twenty days after you were served this ci-                   Having overruled all points of error, we affirm the
       tation and petition, a default judgment                  judgment of the trial court.
       may be taken against you."
                                                                    ROBERT J. SEERDEN, Chief Justice
                                                                   Opinion delivered and filed this the 7th day of No-
TEX. R. CIV. P. 99(c). It is this exact language, along         vember, 1996.
with other similar references, that appellant points to in
                                                                                                              Page 1




Caution
As of: Mar 30, 2015

              ROSEDALE PARTNERS, LTD., Relator v. 131ST JUDICIAL DISTRICT COURT,
               BEXAR COUNTY, TEXAS, JUDGE PETER MICHAEL CURRY, and JUDGE
                              CAROL HABERMAN, Respondents

                                           Cause No. 04-93-00732-CV

                  COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                    869 S.W.2d 643; 1994 Tex. App. LEXIS 344


                                           January 12, 1994, Delivered
                                             January 12, 1994, Filed

PRIOR HISTORY:          [**1] From the 166th Dis-
                                                                This is an original proceeding in which the relator,
trict Court of Bexar County. Trial Court No.
                                                          Rosedale Partners, Ltd., is seeking to: (1) dissolve an
93-CI-03259. Peter Michael Curry and Carol Haberman,
                                                          injunction enjoining a sheriff's sale and other execution
Judges Presiding
                                                          efforts, (2) dissolve an order granting real party's motion
                                                          for new trial, and (3) reinstate previous orders allowing
DISPOSITION:   RELATOR'S PETITION FOR
                                                          execution on real party's property. The issue presented is
WRIT OF MANDAMUS DENIED.
                                                          whether the orders complained of were signed after the
                                                          trial court lost its plenary power over the underlying de-
                                                          fault judgment.
COUNSEL: For Relator: Richard Jackson, RICHARD
JACKSON & ASSOCIATES, 3738 Oak Lawn, Suite                     The determination of whether the trial court retained
101, Dallas, TX 75219.                                    jurisdiction to issue the complained of [**2] orders
                                                          hinges on the finality of the default judgment. Relator
For Respondents: Bernard Lifshutz, c/o John M. Killiam,   contends the default judgment was a final judgment even
445 West Sunset Road, San Antonio, TX 78209.              though it did not provide all the relief requested. The real
                                                          party in interest, Bernard Lifshutz, maintains that the
JUDGES: Sitting: Shirley W. Butts, Justice, Orlando       judgment was interlocutory because it did not expressly
Garcia, Justice, Tom Rickhoff, Justice                    or by implication dispose of the requests for attorney's
                                                          fees and prejudgment interest. We agree that the default
OPINION BY: ORLANDO GARCIA                                judgment did not dispose of all issues expressly or by
                                                          implication and therefore is interlocutory. Thus, the trial
OPINION                                                   court retained plenary power to grant the new trial and to
                                                          issue the orders terminating the collection efforts.
[*644] OPINION
                                                              In January of 1993, Rosedale Partners, Ltd.
  ON RELATOR'S PETITION FOR WRIT OF                       (Rosedale) purchased an unpaid promissory note exe-
MANDAMUS                                                  cuted by Bernard L. Lifshutz. According to Rosedale, the
                                                          unpaid deficiency balance at the time it purchased the
    Opinion by: Orlando Garcia, Justice
                                                          note was $ 7,047,841.20. On March 5, 1993, Rosedale
                                                                                                                   Page 2
                                   869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **


filed suit against Mr. Lifshutz seeking to recover: (1) the   sue when a clear and adequate remedy at law exists such
unpaid balance of $ 7,047,841.20, (2) interest on this        as a normal appeal. The writ will issue "only in situations
balance from the date of purchase until date of payment,      involving manifest and urgent necessity and not for
and (3) attorney's fees. On May 24, 1993, the trial court     grievances that may be addressed by other remedies." Id.
entered a default judgment and awarded Rosedale $             Mandamus has been granted in cases concerning the fi-
7,047,841.20, as the past due [**3] principal and inter-      nality of default judgments and the granting of new trials
est at the time of filing suit, and post judgment interest.   after the trial court lost jurisdiction. Houston Health
No motion for new trial was filed within thirty days of       Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692
the entry of the default judgment.                            (Tex. 1986); Schoenfeld v. Onion, 647 S.W.2d 954 (Tex.
                                                              1983).
      Following the default judgment, Rosedale conducted
post judgment discovery. Pursuant to a subpoena, Mr.               Rosedale contends that the trial court abused its dis-
Lifshutz appeared for a post judgment deposition and          cretion in finding the default judgment interlocutory,
produced voluminous documents to Rosedale. Based on           dissolving the various collection orders, and granting a
the information obtained from the deposition, Rosedale        new trial because the trial court lost all jurisdiction, as a
secured: (1) the entry of a charging order concerning the     matter of law, thirty days after the date the default judg-
recovery of partnership interests, (2) the issuance of two    ment was entered. Rosedale maintains that unless the
writs of garnishment, and (3) the issuance of [*645]          orders barring its collection efforts are dissolved, it will
an execution on the judgment with the sheriff of Bexar        be harmed because it may not be able to collect the
County posting certain personal property for sheriff's        judgment against the real party's assets due to the large
sale. Mr. Lifshutz counter by filing a motion to set aside    amount of other outstanding judgments [**6] against
the default judgment, a motion to dissolve the order of       Mr. Lifshutz.
the sheriff's sale, a motion to dissolve the writs of gar-
                                                                   In response to Rosedale's petition, the real party
nishment, and an application for an injunction. All of the
                                                              claims that Rosedale has failed to comply with the man-
motions were based upon the premise that the default
                                                              datory requirements of rule 121(a) (2) (C) and (F) of the
judgment was interlocutory. Judge Curry entered the
                                                              Texas Rules of Appellate Procedure because its petition
order dissolving the writs of garnishment, dissolving the
                                                              fails to be accompanied by a certified or sworn copy of
execution and order of sheriff's sale, and granting a new
                                                              the orders complained of and fails to include an affidavit
trial. Judge Haberman entered [**4] the injunction or-
                                                              verifying the truth of all factual allegations made in the
der and the order dismissing the charging order.
                                                              petition. In reviewing Rosedale's petition, we find that
Rosedale then filed its petition for writ of mandamus
                                                              the verification contained in the petition was signed only
requesting that the previous orders of the trial court be
                                                              by the notary public and not by the relator or its repre-
reinstated and the injunction enjoining its collections
                                                              sentative. In oral argument, relator maintained that the
efforts be dissolved. Rosedale contends that the default
                                                              verification was sufficient citing Republic Nat'l Leasing
judgment in the underlying case was final and could not
                                                              Corp. v. Schindler, 717 S.W.2d 606 (Tex. 1986), and
be affected or modified by the respective trial judges on
                                                              Stocking v. Biery, 677 S.W.2d 792 (Tex. App.--San An-
any basis.
                                                              tonio 1984, orig. proceeding).
I. MANDAMUS REVIEW                                                 In Schindler, the supreme court stated that copies of
                                                              documents attached to a properly prepared affidavit are
     A writ of mandamus will issue to correct a clear
                                                              sworn copies under rule 166A(e). However, in the instant
abuse of discretion by a trial court or to correct a viola-
                                                              case, we do not have a properly prepared affidavit before
tion of a duty imposed by law if no other remedy at law
                                                              us. Moreover, in Stocking v. Biery, the court noted that a
is available to the relator. Walker v. Packer, 827 S.W.2d
                                                              certified copy of the trial court's order was submitted in
833, 839 (Tex. 1992, orig. proceeding); Johnson v.
                                                              [**7] the mandamus but the other documents were un-
Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.
                                                              certified. The court found that the uncertified documents
1985, orig. proceeding). An abuse of discretion occurs
                                                              did not meet the requirements and were not properly
when a trial court "reaches a decision so arbitrary and
                                                              before the court. In the instant case, we have been pro-
unreasonable as to amount to a clear and prejudicial error
                                                              vided with copies of the various orders [*646] and
of law. Johnson, 700 S.W.2d at 917. A trial court does
                                                              exhibits along with a verification signed by a notary pub-
not have discretion in determining what the law is or in
                                                              lic. However, a verification signed only by a notary pub-
applying the law to the given facts. Walker, 827 S.W.2d
                                                              lic and not by the relator does not meet the procedural
at 840. The clear failure by a trial court to analyze or
                                                              requirements of rule 121 of the Texas Rules of Appellate
apply the law correctly [**5] constitutes an abuse of
                                                              Procedure. Cronen v. Smith, 812 S.W.2d 69, 70 (Tex.
discretion which could result in appellate reversal by
                                                              App.--Houston [1st Dist. 1991, orig. proceeding [leave
extraordinary writ. Id. However, mandamus will not is-
                                                              denied]). Consequently, we have not been furnished with
                                                                                                                   Page 3
                                    869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **


certified or sworn copies of the exhibits, and we do not        ment may sometimes be ascertained based upon the in-
have a proper verification of the factual assertions con-       tention of the trial court [**10] as gleaned from the
tained in the petition. Id. Ordinarily, the motion for leave    language of the decree, the record as a whole, and the
to file would be overruled. However, because we have            conduct of the parties. Highway Contractors, Inc. v.
already granted relator's motion for leave to file its peti-    West Texas Equip. Co., Inc., 584 S.W.2d 382, 384 (Tex.
tion for writ of mandamus, we will address the merits of        Civ. App.--Amarillo 1979, no writ); see Harper v.
the petition in the interest of judicial economy because        Welchem, Inc., 799 S.W.2d 492, 495 (Tex.
relator may correct these technical defects and refile its      App.--Houston [14th Dist.] 1990, no writ) (determinative
petition. Id.                                                   factor in interpreting judgment is intention of court).
                                                                However, in determining whether the judgment is final,
II. DEFAULT JUDGMENT                                            different presumptions apply depending upon whether
                                                                the judgment is made following a conventional trial on
     Rosedale claims that the default [**8] judgment
                                                                the merits or results from a default judgment or motion
entered is final despite the fact that Rosedale had asked
                                                                for summary judgment. Houston Health Clubs, 722
for three categories of relief in its original petition but
                                                                S.W.2d 692. The judgment is presumed final following a
was granted only one category of relief in the judgment. 1
                                                                conventional trial on the merits. North East Indep.
Rosedale asserts that by the omission of the other cate-
                                                                School Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex.
gories of relief requested, the trial court intended to grant
                                                                1966). However, in the context of default or summary
only the relief awarded and to deny the other requested
                                                                judgments, the Aldridge presumption does not apply.
relief. In support of this theory, Rosedale refers to the
                                                                Houston Health Clubs, 722 S.W.2d at 693. Rosedale
language in the last sentence of the default judgment
                                                                acknowledges the existence of the Aldridge presumption
which states "for all of which let execution issue."
                                                                but argues that it cannot be interpreted to mean that there
Rosedale maintains that because execution is available
                                                                is a presumption against finality in default judgments.
only at the entry of a final judgment, the inclusion of that
                                                                Rosedale claims there is [**11] simply no presumption,
phrase indicates the judgment is final and conclusive on
                                                                and we must look to the trial court's file for evidence of
all matters before the court. Rosedale acknowledges that
                                                                whether the judgment was intended to be final.
a final judgment must dispose of all parties and issues,
but argues that the parties and issues may be disposed of
                                                                A. "Case Closed" Notation
by necessary implication. As further evidence that the
judgment is final, Rosedale notes that the docket sheet              As evidence of the intent to make the judgment fi-
shows an entry, contemporaneous with the entry of the           nal, Rosedale points to the [*647] notation on the
default judgment, indicating "case closed." Rosedale            court's docket indicating "case closed." The supreme
argues that all these factors indicate the judgment is fi-      court has stated that "a docket entry may supply facts in
nal. Additionally, during oral argument, Rosedale argued        certain situations" but it may not prevail over or contra-
[**9] that the order is final because Rosedale had              dict a final judicial order. N-S-W Corp. v. Snell, 561
abandoned Its claims for attorney's fees and prejudgment        S.W.2d 798, 799 (Tex. 1977). One court has interpreted
interest.                                                       the certain situations referred to in N-S-W as correcting
                                                                clerical errors in judgments or determining the meaning
       1     The petition set out that the total sum due        of words used in a judgment. Energo Int'l Corp. v.
       from the defendant on the date of conveyance to          Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 n.2
       Rosedale totalled $ 7,047,841.20 and that in addi-       (Tex. App.--Dallas 1986, no writ). Otherwise, docket
       tion to that sum, accrued interest had accumulat-        entries are considered to be a memorandum made for the
       ed on the past due amount. Rosedale sought re-           convenience of the clerk and the trial court and not a part
       covery of this interest from the date of the con-        of the record to be considered. Roever v. Roever, 824
       veyance until date of payment. In addition,              S.W.2d 674, 676 (Tex. App.--Dallas 1992, no writ). From
       Rosedale requested attorney's fees. However, the         the limited record before us, we do not find that the case
       default judgment awarded $ 7,047,841.20 as the           closed notation evidences intent by the trial court to
       past due principal and interest at the time the suit     make the default judgment [**12] final.
       was filed, plus interest on the unpaid sum at the
       rate of eighteen percent (18%) per annum from            B. "Let Execution Issue"
       date of judgment until date of payment.
                                                                     Rosedale also contends that the phrase "for all of
      A final judgment is one that disposes of all parties      which let execution issue" evidences the trial court's in-
and all issues involved in a lawsuit. Houston Health            tent to make the judgment final. We have found no au-
Clubs v. First Court of Appeals, 722 S.W.2d 692, 693            thority, and relator did not provide us with any, indicat-
(Tex. 1986). The determination of the finality of a judg-       ing that the use of the execution issue phrase evidences
                                                                                                                     Page 4
                                   869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **


the intent to make the judgment final. 2 Moreover, judg-            In order for a judgment to be final, it must dispose of
ments containing directives that execution issue have          all parties and all issues involved in the lawsuit. Hou-
been found to be interlocutory. See Macarangal v. An-          ston Health Clubs v. First Court of Appeals, 722 S.W.2d
drews, 838 S.W.2d 632, 634 (Tex. App.--Dallas 1992,            692, 693 (Tex. 1986). Relator contends that all issues
orig. proceeding [leave denied]) (order listing entity as a    were disposed of because it abandoned its claims for
party, dismissing the cause, and providing for execution       prejudgment interest and attorney's fees. Although we
did not show intent of trial court to dispose of all parties   note that one court has allowed a party to [*648]
and claims); McClennahan v. First Gibraltar Bank, 791          abandon or waive a request for punitive damages and
S.W.2d 607, 608-09 (Tex. App.--Dallas 1990, no writ)           impart the requisite finality to a judgment without in-
(judgment contained let execution issue phrase but court       forming the trial court of the decision to do so, in that
found summary judgment interlocutory for failure to            case the court held it was not necessary to notify the trial
dispose of counterclaim).                                      court in order to show that the jurisdiction [**15] of the
                                                               appellate court had been successfully invoked. Jones v.
       2     However, had the default judgment included        Griege, 803 S.W.2d 486, 487-88 (Tex. App.--Dallas
       language purporting to dispose of all claims            1991, no writ).
       and/or parties (Mother Hubbard language), it
                                                                    In Griege, the court concluded that Griege's notice
       would have clearly evidenced the trial court's in-
                                                               to the appellate court of his decision to waive the request
       tent to dispose of all claims. Mafrige v. Ross,
                                                               for punitive damages established that the judgment was
       866 S.W.2d 590, 37 Tex. Sup. Ct. J. 82, 84 (Oct.
                                                               now final and the appellate court had jurisdiction over
       27, 1993).
                                                               the appeal. Id. at 489. However, in the instant case, it is
                                                               crucial for us to know when Rosedale decided to aban-
 [**13] C. Disposition of Issues by Necessary Implica-
                                                               don or waive its remaining requests in order to determine
tion
                                                               when the trial court's plenary power expired. In the rec-
     Rosedale asserts that in addition to evidencing the       ord before us, we do not have any evidence of an
intent to make the judgment final, the let execution issue     amended petition deleting the claims for prejudgment
phrase indicates that the claims for attorney's fees and       interest and attorney's fees, an affidavit explaining when
prejudgment interest were disposed of by necessary im-         the claim was abandoned, or any other evidence indicat-
plication. We disagree. Although it is well-settled that it    ing Rosedale's intent to abandon the remaining claims
is not "essential that the judgment in express terms spe-      prior to the filing of the motion for new trial. 3 Therefore,
cifically dispose of each issue" in order to be final, it is   we do not know if Rosedale abandoned its claims at the
essential that the inference that the judgment does dis-       time the default judgment was signed, at the time the
pose of a particular issue follows as a necessary implica-     motion for new trial was filed, or during oral argument
tion. Davis v. McCray Refrigerator Sales Corp., 136 Tex.       when the abandonment argument was first presented.
296, 150 S.W.2d 377, 378 (1941); see Matelski v.               Because we are unable to ascertain the finality of the
Matelski, 840 S.W.2d 124, 126-27 (Tex. App.--Fort              judgment [**16] based on the abandonment of issues
Worth 1992, no writ) (by enforcing partition agreement,        argument, we must review the judgment on its face to
court necessarily denied claim that party was under du-        determine its finality.
ress when signing agreement); Chem-Gas Engineers,
                                                                   The default judgment in this case provides the fol-
Inc. v. Texas Asphalt & Refining Co., 395 S.W.2d 690,
                                                               lowing:
691 (Tex. Civ. App.--Waco 1965, writ ref'd n.r.e.)(when
plaintiff's action seeking adjudication of priority and
                                                                         It is therefore ORDERED, AD-
foreclosure of lien dismissed, no right, equities, or issues
                                                                      JUDGED and DECREED that Judgment
left for adjudication between the parties; judgment dis-
                                                                      is entered in favor of the Plaintiff
posed of plaintiff's [**14] claim for debt which could
                                                                      Rosedale Partners, Ltd. against the De-
only be established via a lien by necessary implication).
                                                                      fendant Bernard Lifshutz in the amount of
In the instant case, the court awarded the alleged amount
                                                                      $ 7,047,841.20, the past due principal and
of the note and post judgment interest. No mention was
                                                                      interest at the time of filing of this suit,
made as to the prejudgment interest or the attorney's fees
                                                                      plus interest on this unpaid sum at the rate
as requested in the petition nor did the award of the note
                                                                      of eighteen percent (18%) per annum
amount plus interest preclude the award of prejudgment
                                                                      from date of Judgment until date of pay-
interest or attorney's fees. Therefore, we do not find that
                                                                      ment, for all of which let execution issue.
these claims were disposed of by necessary implication.

D. Final Judgment Disposes of All Parties and Issues
                                                                                                                   Page 5
                                   869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, **


However, in reviewing plaintiff's original petition, we       judgment interlocutory). Moreover, in Hunt Oil Co. v.
find that the following requests were made:                   Moore, 639 S.W.2d 459, 460 (Tex. 1982), a judgment,
            In addition to this sum [the $                    which did not mention the claim for prejudgment inter-
        7,047,841.20], accrued interest as allowed            est, was considered Interlocutory until the court entered
        by law is also accumulating on the past               another judgment which tracked the language of the first
        due sum shown above, and recovery of                  judgment and added language which denied all other
        this interest from the date of such con-              relief not expressly [**18] granted. The court found
        veyance until date of payment is also                 that the interlocutory judgment not only failed to address
        sought by this suit. . . . Pursuant to the            the claim for prejudgment interest but also ordered an
        terms of the Notes themselves, the Plain-             accounting to be filed at a subsequent time. Id. at 460;
        tiff is entitled to recover a sum equal to            see New York Underwriters Ins. Co. v. Sanchez, 799
        fifteen percent (15%) additional on the               S.W.2d 677, 678 (Tex. 1990) (judgment which did not
        amount of principal and interest owing, as            mention or [*649] dispose of counterclaim for attor-
        attorneys' fees, and for the recovery                 ney's fees interlocutory).
        [**17] of this additional sum claim is
        also made.                                                   3     Both parties agreed during oral argument
                                                                     that no hearing was held at the time the default
                                                                     judgment was signed. Relator acknowledged that
In Houston Health Clubs, the court found that a default              the default judgment was mailed to the judge in
judgment was interlocutory because it not dispose of the             order to obtain her signature.
punitive damage issue. Id. In that case, a default judg-
                                                                    In the instant case, the trial court did not dispose of
ment was granted to the landlord for all the relief sought
                                                              all the issues before it. Rosedale prayed not only for the
except for punitive damages. The punitive damage issue
                                                              amount of the note but also requested prejudgment inter-
was not mentioned either expressly or by implication.
                                                              est and attorney's fees. Therefore, we hold that the de-
The court held that because the default judgment re-
                                                              fault judgment entered was interlocutory, and the trial
mained interlocutory, the trial court retained jurisdiction
                                                              court retained jurisdiction to grant the new trial and dis-
to set it aside and grant a new trial. Id. 722 S.W.2d at
                                                              solve its previous orders. Accordingly, the petition for
694; see H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d
                                                              writ of mandamus [**19] is denied.
678, 680 (Tex. App.--Corpus Christi 1991, writ denied)
(where three possible authorities existed under which             ORLANDO GARCIA,
prejudgment interest could be awarded, failure to recite
specific interest rate in default judgment case rendered          Justice
                                                                                                                  Page 1




                                                    1 of 1 DOCUMENT


                 SHEIK TEHUTI, Appellant v. BARRETT DAFFIN FRAPPIER TURNER & EN-
                  GEL, LLP, MARY DAFFIN, ROBERT FRAPPIER, STEVE TURNER, BRIAN
                               ENGEL, AND CHALISE ESTES, Appellees

                                                   No. 05-11-00449-CV

                         COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                                               2011 Tex. App. LEXIS 7375


                                           September 9, 2011, Opinion Issued

SUBSEQUENT HISTORY:                 Released for Publica-      Court directed the parties to file letter briefs addressing
tion October 21, 2011.                                         our jurisdiction over the appeal.
                                                                    Appellant responded with a brief that appears to ad-
PRIOR HISTORY: [*1]
                                                               dress the merits of the default judgment rather than the
  On Appeal from the 193rd Judicial District Court,
                                                               jurisdictional issue. The only reference that might be
Dallas County, Texas. Trial Court Cause No.
                                                               construed as directed to the jurisdictional question is
DC-10-15953.
                                                               appellant's statement that the "district court had ruled on
                                                               a core issue important to the appeal." This, however,
COUNSEL: For APPELLANT: Sheik Tehuti, Fort
                                                               does not explain why the judgment is not interlocutory.
Worth, TX.
                                                               Appellees responded that [*2] the March 30, 2011
                                                               judgment is interlocutory and we do not have jurisdiction
For APPELLEE: Steven A. Leyh, LEYH & PAYNE,
                                                               over the appeal. We agree with appellees.
L.L.P., Houston, TX.
                                                                    Appellate jurisdiction is never presumed. Brashear
JUDGES: Before Justices FitzGerald, Francis, and               v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d
Lang-Miers. Opinion By Justice FitzGerald.                     542, 546 (Tex. App.--Dallas 2009, no pet.) (op. on reh'g).
                                                               Unless the record affirmatively shows the propriety of
OPINION BY: KERRY P. FITZGERALD                                appellate jurisdiction, we must dismiss the appeal. See id.
                                                               Subject to a few exceptions not applicable here, we have
OPINION                                                        jurisdiction only over appeals from final judg-
                                                               ments--judgments that dispose of all pending parties and
MEMORANDUM OPINION                                             claims. See Lehmann, 39 S.W.3d at 195; Beckham Grp.,
                                                               P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.--Dallas
    Opinion By Justice FitzGerald
                                                               2010, no pet.).
     Sheik Tehuti appealed the trial court's March 30,
                                                                    In this case, the trial court's March 30, 2011 judg-
2011 default judgment in favor of appellees. The judg-
                                                               ment neither affirmatively disposes of appellees' claim
ment on its face appeared to be interlocutory in that it did
                                                               for prejudgment interest nor contains language indicating
not dispose of appellees' claim for prejudgment interest,
                                                               that all claims and parties have been disposed of and the
nor did it contain language indicating it was disposing of
                                                               judgment is intended to be final. See Lehmann, 39
all claims and parties and was intended to be final. See
                                                               S.W.3d at 200. Therefore, the judgment is not final. Ab-
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.
                                                               sent a final judgment, we have no jurisdiction over the
2001). Therefore, by letter dated June 27, 2011, the
                                                               appeal. See id. at 195.
                                                                       Page 2
                                        2011 Tex. App. LEXIS 7375, *


We dismiss the appeal for want of jurisdiction.             JUSTICE
KERRY P. FITZGERALD
|   | Positive
As of: April 7, 2015 6:01 PM EDT


                               Sherman Acquisition II LP v. Garcia
                                  Court of Appeals of Texas, Tenth District, Waco
                         June 20, 2007, Opinion Delivered; June 20, 2007, Opinion Filed
                                                 No. 10-06-00013-CV

Reporter
229 S.W.3d 802; 2007 Tex. App. LEXIS 4793

SHERMAN ACQUISITION II LP, Appellant v. TONIE                 The court held that the creditor was not entitled to a
GARCIA, Appellee                                              judgment for a suit on sworn account. The case involved
                                                              the extension of credit. Some credit extensions were to
Prior History: [**1] From the County Court at Law No.         fund the purchase of goods or services at the point of
1. McLennan County, Texas. Trial Court No.                    purchase; others were alleged to have been cash
20050487CV1.                                                  advances. The creditor had not properly pleaded a
                                                              claim upon which a suit on a sworn account for those
Disposition: Reversed and rendered.                           types of transactions could be based. The trial court
                                                              erred in not granting a default judgment under Tex. R.
Core Terms                                                    Civ. P. 239 on liability, but not on damages. While the
                                                              creditor did not bring itself within the rule regarding a
                                                              suit on a sworn account, its allegations were sufficient
trial court, default judgment, damages, sworn, request
                                                              to allege a traditional suit for breach of contract. Although
for admission, liquidated, attorney's fees, unliquidated
                                                              the court disagreed with the creditor's conclusion that
damages, merits, pet, no writ, allegations, admissions,
                                                              the damages were liquidated, sufficient evidence of
original petition, conclusively, unidentified, deemed
                                                              damages was presented to prove its damages pursuant
admitted, judicial notice, unliquidated, hearsay, card,
                                                              to Tex. R. Civ. P. 243. Accordingly, the trial court erred in
hear, take nothing judgment, entitled to judgment,
                                                              not rendering judgment for the creditor.
amount of damages, judgment rendered, court of
appeals, fact finding, contents
                                                              Outcome

Case Summary                                                  The court reversed the trial court's judgment and
                                                              rendered judgment for the creditor.
Procedural Posture
                                                              LexisNexis® Headnotes
Appellant creditor challenged a take-nothing judgment
entered by the County Court at Law No. 1, McLennan
                                                                 Contracts Law > Breach > Breach of Contract Actions >
County, Texas, after a trial on the merits before the court
                                                                 General Overview
in the creditor's action against appellee debtor on a
sworn account and for quantum meruit to recover an               Contracts Law > ... > Sales of Goods > Title, Creditors &
unpaid credit card debt. The debtor had not filed an             Good Faith Purchasers > Passing of Titles
answer or otherwise made an appearance. Although
                                                              HN1 A suit on a sworn account must be based upon a
the creditor requested a default judgment, the trial court
                                                              transaction involving a sale on one side and a purchase
did not grant it.
                                                              on the other whereby title to personal property passes
                                                              from one to another.
Overview

The debtor did not appear at the trial on the merits. The        Civil Procedure > ... > Pretrial Judgments > Default &
creditor presented no live testimonial evidence of its           Default Judgments > General Overview
damages but had an attorney fee affidavit and an                 Civil Procedure > Appeals > Appellate Jurisdiction >
affidavit purporting to address the merits of its claim.         Interlocutory Orders
                               229 S.W.3d 802, *802; 2007 Tex. App. LEXIS 4793, **1



HN2 Ordinarily, the denial of a default judgment is an        allegations of fact set forth in the petition are deemed
interlocutory order not subject to appeal. This is the        admitted, except for the amount of damages. If the
natural result of the denial of a motion that does not        claim is liquidated and proved by an instrument in
result in a judgment because the refusal to rule on, or       writing, the damages shall be assessed by the court, or
the denial of, a dispositive motion, does not normally        under its direction, unless the defendant demands and
result in a ruling or other final judgment about which        is entitled to a trial by jury. Tex. R. Civ. P. 241. A claim is
complaint can be made. Usually, after the denial, or          liquidated if the amount of damages caused by the
refusal to rule, the proceedings progress and are             defendant can be accurately calculated from (1) the
ultimately resolved and the denial or refusal to rule on      factual, as opposed to conclusory, allegations in the
the motion becomes moot because other events in the           petition, and (2) an instrument in writing. Whether a
proceeding have resulted in a judgment.                       claim is liquidated must be determined from the
                                                              language of the petition, as a seemingly liquidated
  Civil Procedure > ... > Pretrial Judgments > Default &      claim may be unliquidated because of pleading
  Default Judgments > General Overview                        allegations which require proof for resolution. If the
  Civil Procedure > Appeals > Standards of Review > Abuse     damages being claimed are unliquidated, the court
  of Discretion                                               rendering a default judgment must hear evidence as to
                                                              damages. Tex. R. Civ. P. 243. Rule 243 does not
HN3 Review of the denial of a motion for default              prescribe either the manner in which the hearing is to be
judgment is under the abuse of discretion standard.           conducted or the character of evidence which is
                                                              required. Tex. R. Civ. P. 243. However, it is error for the
  Civil Procedure > ... > Default & Default Judgments >       trial court to fail to conduct a hearing and to require
  Default Judgments > Entry of Default Judgments
                                                              proof of unliquidated damages before rendering default
HN4 A plaintiff is generally entitled to a default judgment   judgment for such damages.
against a defendant who fails to file an answer within
the time allowed and fails to appear when the trial court        Contracts Law > ... > Damages > Types of Damages >
                                                                 Liquidated Damages
calls the case for trial. Tex. R. Civ. P. 239. A defendant
who neither answers nor appears has "admitted" the            HN8 Examples of unliquidated damages are personal
facts properly pled and the justice of the opponent's         injury damages, claims based on repair estimates, and
claim.                                                        the determination of property value absent written
                                                              instruments verifying the value. A claim is liquidated if
  Contracts Law > Breach > Breach of Contract Actions >
                                                              the amount of damages may be accurately calculated
  General Overview
                                                              by the trial court from the factual, as opposed to the
HN5 A suit on a sworn account is a special type of suit       conclusory, allegations in a plaintiff's petition and the
on a contract.                                                instrument in writing.

  Civil Procedure > ... > Pretrial Judgments > Default &         Contracts Law > ... > Damages > Types of Damages >
  Default Judgments > Default Judgments                          Liquidated Damages

HN6 A default judgment on liability does not address the      HN9 When a claim is for unliquidated damages, a court
merits of the allegations regarding unliquidated              shall hear evidence as to damages and shall render
damages.                                                      judgment therefor. Tex. R. Civ. P. 243. For an
                                                              unliquidated claim, testimony of the total amount due is
  Civil Procedure > ... > Default & Default Judgments >       sufficient to support an award of damages, and the
  Default Judgments > Entry of Default Judgments              testimony may be supplied by affidavits.
  Contracts Law > ... > Damages > Types of Damages >
                                                                 Contracts Law > ... > Damages > Types of Damages >
  Liquidated Damages
                                                                 Liquidated Damages
  Evidence > Types of Evidence > Judicial Admissions >
  Effects                                                     HN10 See Tex. R. Civ. P. 243.

HN7 Once a default judgment is taken against a                   Contracts Law > ... > Damages > Types of Damages >
non-answering defendant on an unliquidated claim, all            Liquidated Damages
                                                                                                               Page 2 of 10
                               229 S.W.3d 802, *802; 2007 Tex. App. LEXIS 4793, **1


    Evidence > ... > Statements as Evidence > Hearsay >        facts admitted may not be contradicted by evidence at
    General Overview                                           the trial.

HN11 Tex. R. Evid. 802 states that inadmissible hearsay
                                                               Counsel: For APPELLANT/RELATOR: Jeffrey J. Chen,
admitted without objection shall not be denied probative
                                                               HULL & ASSOCIATES, PC, Houston, TX.
value merely because it is hearsay. Nothing in Rule 802
limits its application to contested hearings. The rule is
                                                               For APPELLEE/RESPONDENT: Tonie Garcia, Pro se,
not ambiguous and requires no explication. Because
                                                               Waco, TX.
unobjected to hearsay constitutes probative evidence,
it satisfies the requirement of Tex. R. Civ. P. 243 that
                                                               Judges: Before Chief Justice Gray, Justice Vance, and
there be evidence of unliquidated damages.
                                                               Justice Reyna.
    Civil Procedure > ... > Default & Default Judgments >
                                                               Opinion by: TOM GRAY
    Default Judgments > Entry of Default Judgments
    Contracts Law > ... > Damages > Types of Damages >
    Liquidated Damages
                                                               Opinion
    Evidence > ... > Statements as Evidence > Hearsay >
                                                               [*804] OVERVIEW
    General Overview

HN12 A trial court may rely on affidavits in proving           This appeal is from a take nothing judgment after a trial
unliquidated damages in default judgments; in fact, it is      on the merits before the court. Sherman Acquisition II
error to not consider the affidavits. Tex. R. Evid. 802, the   LP sued Tonie Garcia in county court on a sworn account
hearsay rule, will not prevent use of evidence in the          and for quantum meruit 1 to [*805] recover an unpaid
form of affidavits. Affidavits are probative evidence of       credit card debt. Garcia did not file an answer or
unliquidated damages. Testimony of the total amount            otherwise make an appearance. Sherman requested a
due under a written instrument is legally sufficient to        default judgment. The trial court did not grant default
support an award of that amount in a default judgment          judgment to Sherman, but rather set the case for a trial
proceeding. But not just any affidavit will do. An affidavit   on the merits. Garcia did not appear at the trial on the
which does not positively and unqualifiedly represent          merits. Upon Sherman's request, the trial court took
the facts as disclosed in the affidavit to be true and         judicial notice of the contents of its file. Sherman
within the affiant's personal knowledge is legally             presented no live testimonial evidence of its damages
insufficient.                                                  but included in the court's file was an attorneys fee
                                                               affidavit and an affidavit purporting to address the merits
    Evidence > Types of Evidence > Judicial Admissions >       of its claim. The trial court rendered a take nothing
    Effects                                                    judgment. This appeal followed.

HN13 Admissions, once deemed admitted, are judicial            Sherman vigorously asserts that its case is a suit on a
admissions and a party may not then introduce                  sworn account and that it was entitled to judgment by
controverting testimony in the legal proceeding related        the rules applicable to suits on sworn account, or
thereto. Deemed admissions may be employed as                  alternatively by the rules applicable to default
proof; and once admissions are deemed admitted by              judgments, or finally by the evidence at the trial on the
operation of law and where said admissions fully support       merits on both liability and damages. After a discussion
each element of a cause of action, including damages,          of the background of this appeal, we first address the
they will fully support a judgment based thereon. This is      issue of whether Sherman was entitled to a judgment
because unanswered requests for admissions are                 for a suit on sworn account. Because we determine that
deemed admitted without the necessity of a court order         it is not, we then move to the question of whether
and any matter thus admitted is conclusively established       Sherman was entitled to a default judgment, and
as being true. Tex. R. Civ. P. 198.2(c), 198.3. Thus, the      whether it was error for the trial court to deny or refuse

1
   The existence of a contract, as more fully explained below, bars recovery under quantum meruit. Murray v. Crest Const.,
Inc., 900 S.W.2d 342, 345 (Tex. 1995); Pepi Corp. v. Galliford, No. 01-05-00788-CV 2007 Tex. App. LEXIS 1018, *10 (Tex.
App.-Houston [1st Dist.] Feb. 8, 2007, no pet.). [**2] Accordingly, quantum meruit will not be further discussed herein.
                                                                                                            Page 3 of 10
                                 229 S.W.3d 802, *805; 2007 Tex. App. LEXIS 4793, **2



to grant default judgment, on both, or either, liability and      Notice of Appeal was filed.
damages. Because we determine that the trial court
erred in not granting a default judgment on liability, but        TRIAL ON THE MERITS
not on damages, we then must proceed to determine
whether the trial court erred by rendering a take nothing         The reporter's record on this entire trial on the merits is
judgment after a trial on the merits against Sherman.             as follows:
Because we determine that Sherman conclusively
proved its damages, we ultimately conclude that the                   PROCEEDINGS
trial court erred in not rendering judgment for Sherman               NOVEMBER 4, 2005
and, [**3] therefore, we reverse the trial court's judgment
and render judgment for Sherman.                                      THE COURT: Okay. This is 20050487CV1. Mr.
                                                                      Fisher?
BACKGROUND                                                            MR. FISHER: Thank you, Your Honor. For the
                                                                      record, my name is John B. Fisher, III, and I am
Garcia ran up a debt on his Metris credit card account.               an attorney. I practice law in Waco, McLennan
He failed to pay. Sherman acquired the debt from Metris               County, Texas. Hull & Associates, the attorneys
and then sued Garcia to collect the debt. In addition to              for the Plaintiffs in this lawsuit, have asked me
the petition, Sherman included a Request for                          to appear today solely for the purpose of moving
Disclosures and Request for Admissions in the petition.               for a judgment, and I have some brief evidence
Garcia did not file an answer or make an appearance.                  I would like to present to the Court.
Not surprisingly, Garcia, in addition to not answering the
claims in the petition, also did not answer the Requests              THE COURT: All right.
for Admissions. Service of the petition and the Request               MR. FISHER: I would like to request the Court
for Admissions was reflected on the return of service.                to take judicial notice of the case file that the
                                                                      Court presently has in his [**5] possession.
Sherman filed a motion for default judgment on July 18,
2005. Rather than a ruling on the motion for default                  THE COURT: All right.
judgment, on July 18, 2005 the case was set for trial on
                                                                      MR. FISHER: I would, second, like to be sworn
November 4, 2005.
                                                                      in.
The trial on the merits was held on November 4, 2005.                 (Witness duly sworn)
No jury trial having been requested, the case was tried
                                                                      THE COURT: All right. Proceed.
to the court. At the trial before the court, Sherman did
not specifically object to the trial court's failure or refusal       JOHN B. FISHER, III
to rule on any motion but Sherman did draw the trial
                                                                      having been first duly sworn, testified as follows:
court's attention to its entitlement to judgment based on
the contents of the court's file. Sherman [**4] specifically          DIRECT EXAMINATION
asked the court to take judicial notice of the court's file
                                                                      BY MR. FISHER:
and requested a judgment in its favor.
                                                                      I will testify as follows: That I am John B. Fisher,
The trial court took judicial notice of the contents of the           III, and that I am an attorney and I practice law
court's file, which contained the petition, affidavits                in Waco, McLennan County, Texas, and the
regarding the claim and attorneys fees, and Request for               following testimony is not of personal
Admissions to which no response had been filed.                       knowledge. It is based strictly on information
                                                                      and belief.
A take nothing judgment was rendered on November 4,
2005.                                                                 And that testimony would be that it is my
                                                                      understanding that the Defendant incurred a
 [*806] Sherman requested findings of fact and                        credit card debt to a company called Metris,
conclusions of law.                                                   and that that debt was subsequently bought by
                                                                      the Plaintiff herein, Sherman Acquisition. And it
Findings of fact and conclusions of law were filed.                   is my understanding, based on information and
                                                                                                              Page 4 of 10
                                229 S.W.3d 802, *806; 2007 Tex. App. LEXIS 4793, **5



    belief, that that debt is a legitimate debt that is        3. The trial [court] improperly set the matter for trial.
    unpaid and that the Plaintiff is entitled to recover
    the money that they have sued for.                         All three issues are somewhat interrelated, and will be
                                                               discussed as necessary, as described above.
    Also, I would like to testify, based on information
    and belief, that included in the Plaintiff's Original      SWORN ACCOUNT
    Petition are Requests for Admissions that have
    not been responded to as of this date, in any              If Sherman properly pleaded a suit on a sworn account,
    manner.                                                    it is entitled to judgment, not so much because of the
    And that's all the testimony I have, Your Honor.           default of Garcia, but because Garcia did not file a
                                                               sworn denial of the account. See TEX. R. CIV. P. 185.
    THE COURT: Anything else, Mr. Fisher?                      But as the trial court properly noted, HN1 a suit on a
    MR. FISHER: Did the Court [**6] want to hear               sworn account must be based upon a transaction
    any type of argument?                                      involving "a sale on one side and a purchase on the
                                                               other whereby title to personal property passes from
    THE COURT: I will hear anything you want to                one to another." Tully v. Citibank (S.D.), N.A., 173
    present, Mr. Fisher.                                       S.W.3d 212, 216 (Tex. App.-Texarkana 2005, no pet.).
                                                               This case involves the extension of credit. Some credit
    MR. FISHER: Thank you, Your Honor.
                                                               extensions were to fund the purchase of goods or
    FINAL ARGUMENT                                             services at the point of purchase; others are alleged to
    MR. FISHER: I would like to say to the Court               have been cash advances. Sherman has not properly
    that I believe that Rule 241 of the Texas Rules            pleaded a claim upon which a suit on a sworn account
    of Civil Procedure is applicable in this situation         for these types of transactions can be based.
    because we have a liquidated amount that is
    proven by an instrument in writing, and I believe          DEFAULT JUDGMENT
    that the pleadings are sufficient to give the
                                                               HN2 Ordinarily, the denial of a default judgment is an
    Defendant notice of what they were sued for
                                                               interlocutory order not subject to appeal. Aguilar v.
    and why they were sued, [*807] and I think the             Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston
    Requests for Admissions certainly bolster those            [14th Dist.] 2005, no pet.). [**8] This is the natural result
    other reasons, and therefore, believe that when            of the denial of a motion that does not result in a
    the Defendant hasn't appeared and in any way               judgment because the refusal to rule on, or the denial
    contested the charges, which constitutes a type            of, a dispositive motion, does not normally result in a
    of tacit admission, that it's a legitimate claim,          ruling or other final judgment about which complaint can
    that the Plaintiff is entitled to the judgment             be made. Usually, after the denial, or refusal to rule, the
    requested.                                                 proceedings progress and are ultimately resolved and
    Thank you, Your Honor.                                     the denial or refusal to rule on the motion becomes
                                                               moot because other events in the proceeding have
    THE COURT: Mr. Fisher, I am going to deny the              resulted in a judgment.
    relief prayed for and order that the Plaintiff take
    nothing for this suit. Anything further?                   We have previously reviewed the denial of a motion for
                                                               default judgment which was filed and ultimately denied
    MR. FISHER: No, Your Honor.
                                                               after an answer was filed. Aguilar v. Alvarado, 39 S.W.3d
                                                               244, 248 (Tex. App.-Waco 1999, pet. denied) ("Rather,
THE APPEAL
                                                               Aguilar's first request for a default judgment occurred in
Sherman brings three issues. The issues are as follows:        his motion, filed after Alvarado filed his answer, in which
                                                               he asked the trial court to strike Alvarado's answer and
1. The trial court erred in ordering that the Plaintiff take   enter a default judgment."). And at least one other
nothing by way of its suit.                                    appellate court, citing our Aguilar case, has considered
                                                               the denial of a default judgment when, as here, the
2. The trial court erred in not granting the Plaintiff's       denial is challenged in an appeal from a final judgment
[**7] Default Judgment; and                                    or order. Aguilar v. Livingston, 154 S.W.3d 832, 833
                                                                                                             Page 5 of 10
                                229 S.W.3d 802, *807; 2007 Tex. App. LEXIS 4793, **8



(Tex. App.-Houston [14th Dist.] 2005, no pet.). [**9] HN3       calls [**11] the case for trial. TEX. R. CIV. P. 239. A
Review of the denial of a motion for default judgment is        defendant who neither answers nor appears has
under the abuse of discretion standard. Id.                     "'admitted' the facts properly pled and the justice of the
                                                                opponent's claim." Stoner v. Thompson, 578 S.W.2d
 [*808] Initially we must determine whether the trial           679, 682 (Tex. 1979).
court's failure or refusal to grant a default judgment was
properly preserved. In Aguilar v. Alvarado, the motion          Just because we have determined that this was not a
was made and specifically denied after the answer had           suit on a sworn account, we cannot disregard the
been filed. Thus, as with any issue that needs to be            remaining allegations if they support a claim for breach
preserved, Aguilar had pursued the objection to an              of contract. HN5 A suit on a sworn account is a special
adverse ruling. See TEX. R. APP. P. 33.1. The appellant,        type of suit on a contract. We hold that while Sherman
Aguilar, was arguing that the trial court, notwithstanding      did not bring itself within the rule regarding a suit on a
that an answer had been filed, should have granted the          sworn account, its allegations are sufficient to allege a
motion for default judgment.                                    traditional suit for breach of contract. After reviewing the
                                                                original petition, we find that it contained a sufficient
In the present case, however, there is some question            allegation of breach of contract, and the trial court
whether proceeding to trial without an express ruling on        should have entered default judgment for Garcia's
the motion would be a waiver of the motion by Sherman.          liability on the claim upon that basis. The trial court
Alternatively, it could be argued, that setting the case for    abused its discretion in failing to enter the default
trial rather than granting default judgment was an implied      judgment. But this is only as to liability. HN6 A default
denial of the motion by the trial court. TEX. R. APP. P.        judgment on liability does not address the merits of the
33.1(a)(2)(A). Or finally, a third alternative argument is      allegations regarding unliquidated damages. Transp.
whether preservation would require that the movant              Concepts, Inc. v. Reeves, 748 S.W.2d 302, 304 (Tex.
object to the trial court's failure or refusal to rule on the   App.-Dallas 1988, no writ).
motion. TEX. R. APP. P. 33.1(a)(2)(B).
                                                                LIQUIDATED DAMAGES                VS.    UNLIQUIDATED
At the trial on the merits, in [**10] Sherman's opening         [**12] DAMAGES
statement, consisting of one paragraph, Sherman
advised the court that it was there to move for judgment.       The general topic of default judgments and the critical
And in its closing argument, also of only one paragraph,        distinction between [*809] liquidated and unliquidated
Sherman specifically argued that it was entitled to             damages is addressed in an excellent opinion by Justice
judgment under Rule 241 of the Texas Rules of Civil             Johnson, now on the Texas Supreme Court, when he
Procedure (default judgment on liquidated damages).             was a justice on the Seventh Court of Appeals in
Immediately thereafter, the trial court rendered a take         Amarillo. Arenivar v. Providian Nat'l Bank, 23 S.W.3d
nothing judgment against Sherman. Because it is clear           496, 497-498 (Tex. App.-Amarillo 2000, no pet.). As
that Sherman did not waive its claimed right to a default       Justice Johnson explained,
judgment and continued to press the court for a default
judgment based upon the contents of the court's file,               HN7 Once a default judgment is taken against
and further because it is clear that the trial court                a non-answering defendant on an unliquidated
understood Sherman's request, we conclude that the                  claim, all allegations of fact set forth in the
issue of whether the trial court erred in failing to render         petition are deemed admitted, except for the
a default judgment was adequately preserved. TEX. R.                amount of damages. Texas Commerce Bank,
APP. P. 33.1.                                                       Nat. Ass'n v. New, 3 S.W.3d 515, 516 (Tex.
                                                                    1999). If the claim is liquidated and proved by
LIABILITY AND DAMAGES                                               an instrument in writing, the damages shall be
                                                                    assessed by the court, or under its direction,
We now address the question of whether the trial court              unless the defendant demands and is entitled
erred in not rendering a default judgment in favor of               to a trial by jury. TEX. R. CIV. P. 241. A claim is
Sherman on either, or both, liability and damages. HN4              liquidated if the amount of damages caused by
A plaintiff is generally entitled to a default judgment             the defendant can be accurately calculated from
against a defendant who fails to file an answer within              (1) the factual, as opposed to conclusory,
the time allowed and fails to appear when the trial court           allegations in the petition, and (2) an instrument
                                                                                                               Page 6 of 10
                              229 S.W.3d 802, *809; 2007 Tex. App. LEXIS 4793, **12



    in writing. Pentes Design, Inc. v. Perez, 840             for professional services was a liquidated claim proven
    S.W.2d 75, 79 (Tex. App.-Corpus Christi 1992,             by written instruments); Mantis v. Resz, 5 S.W.3d 388,
    writ denied). Whether [**13] a claim is liquidated        392 (Tex. App.-Fort Worth 1999, pet. denied), overruled
    must be determined from the language of the               on other grounds, Sheldon v. Emergency Medicine
    petition, as a seemingly liquidated claim may             Consultants, 43 S.W.3d 701, 702-03 (Tex. App.-Fort
    be unliquidated because of pleading allegations           Worth [*810] 2001, no pet.) [**15] (in a suit on a sworn
    which require proof for resolution. See Irlbeck           account, the petition with an attached sworn account
    v. John Deere Co., 714 S.W.2d 54, 57 (Tex.                and verified affidavit of the sworn account was a
    App.-Amarillo 1986, writ ref'd n.r.e.).                   liquidated claim proved by written instruments);
                                                              Sheshunoff & Co. v. Scholl, 560 S.W.2d 113, 115 (Tex.
    If the damages being claimed are unliquidated,
                                                              Civ. App.-Houston [1st Dist.] 1977), rev'd on other
    the court rendering a default judgment must
                                                              grounds, 564 S.W.2d 697 (Tex. 1978) (no further proof
    hear evidence as to damages. Rule 243; Holt
                                                              was required in suit to recover damages for breach of
    Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,
                                                              employment contract because the claim for damages
    83 (Tex. 1992). Rule 243 does not prescribe
                                                              was liquidated and proved by the employment contract
    either the manner in which the hearing is to be
                                                              attached to the petition). We disagree with Sherman's
    conducted or the character of evidence which
                                                              conclusion that the damages here are liquidated. As
    is required. Rule 243; see New, 3 S.W.3d at
                                                              explained below, we agree, however, that sufficient
    516-17 (affidavits are sufficient evidence to
                                                              evidence of damages was presented to prove
    support unliquidated damages award).
                                                              Sherman's damages.
    However, it is error for the trial court to fail to
    conduct a hearing and to require proof of
                                                              UNLIQUIDATED DAMAGES
    unliquidated damages before rendering default
    judgment for such damages. See Jones v.                   Having found that Sherman was entitled to a default
    Andrews, 873 S.W.2d 102, 107 (Tex.                        judgment based on the petition's allegations regarding
    App.-Dallas 1994, no writ).                               liability and the defendant's failure to answer, our
                                                              decision leaves Sherman with the need to prove its
Arenivar v. Providian Nat'l Bank, 23 S.W.3d 496,              unliquidated damages. Sherman alleges it proved
497-498 (Tex. App.-Amarillo 2000, no pet.).                   damages via an affidavit or, alternatively, deemed
                                                              admissions.
HN8 Examples of unliquidated damages are personal             At the trial, Sherman submitted damages evidence in
injury damages, claims based on repair estimates, and         the form of request for admissions that were deemed
the determination of property [**14] value absent written     admitted and affidavits. We will address those [**16] in
instruments verifying the value. See Jones v. Andrews,        reverse order.
873 S.W.2d 102, 107 (Tex. App.-Dallas 1994, no writ)
(damages for personal injuries are unliquidated);             AFFIDAVIT
Alvarado v. Reif, 783 S.W.2d 303, 305 (Tex.
App.-Eastland 1989, no writ) (claim for damages based         HN9 When a claim is for unliquidated damages, "the
on repair estimate is not a liquidated damage); Willacy       court shall hear evidence as to damages and shall
County Appraisal Review Bd. v. South Padre Land Co.,          render judgment therefor …" TEX.R. CIV. P. 243; Holt
767 S.W.2d 201, 204 (Tex. App.-Corpus Christi 1989,           Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.
no writ) (determination of property value is not liquidated   1992). For an unliquidated claim, testimony of the total
demand where only evidence of property value was the          amount due is sufficient to support an award of
conclusory allegation of value in plaintiff's unsworn         damages, and the testimony may be supplied by
petition).                                                    affidavits. Texas Commerce Bank v. New, 3 S.W.3d
                                                              515, 517 (Tex. 1999); Barganier v. Saddlebrook
A claim is liquidated if the amount of damages may be         Apartments, 104 S.W.3d 171, 173 (Tex. App.-Waco
accurately calculated by the trial court from the factual,    2003, no pet.); Irlbeck v. John Deere Co., 714 S.W.2d
as opposed to the conclusory, allegations in plaintiff's      54, 57 (Tex. App.-Amarillo 1986, no writ).
petition and the instrument in writing. Novosad v.            In the past, the first issue has been whether affidavits
Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston             constitute evidence as required by Rule 243. That rule
[14th Dist.] 2001, no pet.) (suit to recover amount due       provides:
                                                                                                         Page 7 of 10
                                  229 S.W.3d 802, *810; 2007 Tex. App. LEXIS 4793, **16



     HN10 If the cause of action is unliquidated or                      satisfies the requirement of Rule 243 that there
     be not proved by an instrument in writing, the                      be evidence of unliquidated damages.
     court shall hear evidence as to damages and                           [**18] The trial court did not err when it
     shall render judgment therefor, unless the                          considered the affidavits in rendering its default
     defendant shall demand and be entitled to a                         judgment.
     trial by jury in which case the judgment by
     default shall be noted, a writ of inquiry awarded,              Texas Commerce Bank v. New, 3 S.W.3d 515, 517
     and the cause entered on the jury docket.                       (Tex. 1999).

TEX. R. CIV. P. 243.                                                 In the case now before this Court, it appears that the
                                                                     trial court concluded that damages could not be properly
Although several courts of appeals had held that                     proven through affidavit. To the contrary, HN12 a trial
affidavits constitute evidence [**17] of unliquidated                court may rely on affidavits in proving unliquidated
damages, at least one court of appeals held that they                damages in default judgments; in fact it is error to not
did not. New v. Texas Commerce Bank, 971 S.W.2d                      consider the affidavits. Id. Rule 802 of the Texas Rules
711, 714 (Tex. App.-Austin 1998), rev'd in part, 3 S.W.3d            of Evidence, the hearsay rule, will not prevent use of
515 (Tex. 1999). To reject the affidavit the court of                evidence in the form of affidavits. Id. Affidavits are
appeals had concluded that Rule 802 of the Texas                     probative evidence of unliquidated damages. Id.
Rules of Evidence, the hearsay rule, prevents the use of             "Testimony of the total amount due under a written
affidavits "because the application of Rule 802                      instrument is legally sufficient to support an award of
anticipates opposing counsel's and/or an opposing                    that amount in a default judgment proceeding." Id.
party's presence at the hearing to object to such
inadmissible hearsay." Id. The lower court in New further            But not just any affidavit will do. Sherman's affidavit in
concluded, therefore, that a trial court does not hold "an           support of damages is signed by an unidentified
evidentiary hearing merely by accepting the affidavits               "attorney in fact," states the amount due on the account,
attached to [the] motion." Id.                                       and that the "amount is within the knowledge of affiant
                                                                     just and true." An affidavit which does not positively and
The Texas Supreme Court held that the court of appeals               unqualifiedly represent the facts as disclosed in the
was incorrect, holding                                               affidavit to be true and within the affiant's personal
                                                                     knowledge is [**19] legally insufficient. Humphreys v.
     HN11 Rule 802 says, "Inadmissible hearsay                       Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). The trial
     admitted without objection shall not be denied                  court rejected the evidentiary value of the affidavit.
     probative value merely because it is hearsay."                  Specifically, as to the affidavit relied upon to prove
     Nothing in Rule 802 limits its application to                   damages, the trial court found the affiant's source of
     contested hearings. The rule is not ambiguous                   knowledge was not stated and, as such it was not
     and requires no explication. Consequently we                    adequate for the purposes of proving Sherman's
     will [*811] give it none. Because unobjected to                 damages. 2 We agree. Accordingly, the affidavit is not
     hearsay constitutes probative evidence, it                      sufficient as evidence of Sherman's damages.

2
    The findings of fact relevant to the affidavit are as follows:

       FINDING OF FACT NO. 5. Plaintiff attached to its original petition an Affidavit of an unidentified individual.

       FINDING OF FACT NO. 6. The affidavit of the unidentified individual claimed that the unidentified individual was
       Attorney in Fact for Sherman Acquisition II LP.

       FINDING OF FACT NO. 7. The affidavit of the unidentified individual did not claim that the unidentified individual
       was a representative of Metris in any capacity.

       FINDING OF FACT NO. 8. The affidavit of the unidentified individual failed to state any facts supporting the
       statement that the unidentified individual had personal knowledge about the subject matter of this suit.

These findings have not been attacked on [**20] appeal.
                                                                                                                   Page 8 of 10
                               229 S.W.3d 802, *811; 2007 Tex. App. LEXIS 4793, **19



ATTORNEY'S FEE AFFIDAVIT                                            19. Written demand was made for payment of
                                                                    said account more than 30 days prior to filing
The other affidavit in the record was from one of                   this lawsuit.
Sherman's attorneys. We believe it was legally sufficient
to support an attorney's fee award. It stated that the              20. Defendant has breached the contract made
affiant is a duly licensed attorney, that he was familiar           a basis of Plaintiff's Original Petition.
with the usual and customary attorney's fees in
                                                                    21. Defendant presently owes Plaintiff the
McLennan County, and, based on his knowledge of the
                                                                    amount of $ 6,672.08 on said account.
services rendered to Sherman on this matter, $ 2,224.03
was a reasonable and customary fee for prosecuting                  26. The terms of the credit card agreement
this claim. Because there was no controverting                      made a basis of Plaintiff's Original Petition
evidence, this was legally sufficient to establish an               allowed Defendant to be charged late fees if
award for and Sherman's entitlement to attorney's fees.             Defendant's monthly payments were late and
Texas Commerce Bank v. New, 3 S.W.3d 515, 516-518                   over credit limit fees if Defendant exceeded the
(Tex. 1999).                                                        credit limit.

                                                                    27. A reasonable attorney fee for Plaintiff's
REQUEST FOR ADMISSIONS
                                                                    attorney for the prosecution of this lawsuit would
(DAMAGES AND ATTORNEY'S FEES 3)                                     be at least the amount of $ 2,224.03.

Sherman served a request for admissions, as part of its        The request for admissions was imbedded in the
petition, on Garcia. [*812] Garcia did not file an answer      petition. No objection is made to this procedure and by
or other response. The requests were, therefore,               our holding we express no opinion upon the propriety of
deemed admitted. TEX. R. CIV. P. 198.2(c). The deemed          this form of request for admissions or its service. See
admissions included the following:                             Steffan v. Steffan, 29 S.W.3d 627, 629-631 (Tex.
                                                               App.-Houston [14th Dist.] 2000, pet. denied). The trial
    3. Defendant understood from the time the                  court took judicial notice of the contents of its file. The
    account made a basis of Plaintiff's Original               file included the request for admissions and proof of
    Petition was opened that use of the credit card            service in the form of a return of service contained in the
    results in a loan being made to Defendant for              file.
    the amount charged or cash advance
    requested.                                                 In examining the record before us, Garcia failed to
    4. [**21] Defendant understood from the time               timely answer the request for admissions, or to file
    the account made a basis of Plaintiff's Original           written objections, or to file a motion to file answers late.
    Petition was opened that Defendant is required             They were, therefore, deemed admitted. HN13
    and obligated to repay all charges or cash                 Admissions, once deemed admitted, are judicial
    advances incurred on the account.                          admissions and Garcia may not then introduce
                                                               controverting testimony in the legal proceeding related
    6. Defendant made the purchases and took                   thereto. Shaw v. National County Mut. Fire Ins. Co., 723
    cash advances using the credit card made a                 S.W.2d 236, 238 (Tex. App.-Houston [1st Dist.] 1986,
    basis of Plaintiff's Original Petition.                    no writ). [**23] Deemed admissions may be employed
    15. Defendant did promise to pay Plaintiff for             as proof, Elkins v. Jones, 613 S.W.2d 533, 534 (Tex.
    said account.                                              Civ. App.-Austin 1981, no writ) (summary judgment);
                                                               and once admissions are deemed admitted by operation
    17. Defendant has failed to pay Plaintiff for said
                                                               of law and where said admissions fully support each
    account.
                                                               element of a cause of action, including damages, they
    18. Plaintiff made written demand upon                     will fully support a judgment based thereon. This is
    Defendant for payment of said account.                     because unanswered requests for admissions are

3
   The holding that the deemed admissions [**22] are sufficient to conclusively establish attorney's fees is an alternative
holding to the sufficiency of the attorney's fee affidavit. We note that the deemed admissions would also support all of the
elements of a suit for breach of contract as an alternative to Sherman's entitlement to a default judgment on liability.
                                                                                                              Page 9 of 10
                               229 S.W.3d 802, *812; 2007 Tex. App. LEXIS 4793, **23



deemed admitted "without the necessity of a court               This was conclusive evidence of damages and
order" and any matter thus admitted is "conclusively            attorney's fees which could not be contradicted. We
established" as being [*813] true. TEX. R. CIV. P.              reverse the judgment of the trial court and render the
198.2(c), 198.3. Thus, the facts admitted may not be            judgment the trial court should have rendered, TEX. R.
contradicted by evidence at the trial. Marshall v. Vise,        APP. P. 43.2(c), for damages in the amount of $
767 S.W.2d 699, 700 (Tex. 1989); Shaw v. National               6,672.08, attorney's fees in the amount of $ 2,224.03,
County Mut. Fire Ins. Co., 723 S.W.2d 236, 238 (Tex.            prejudgment interest on $ 6,672.08 from July 13, 2004
App.-Houston [1st Dist.] 1986, no writ).                        to November 4, 2005 at the rate of 6% per annum, and
                                                                postjudgment interest at the rate of 6% per annum on
Because the trial court would have been able to                 the amount of the judgment from November 5, 2005
ascertain the amount of damages and attorney's fees             until paid.
based on the request for admissions, we conclude that
the evidence conclusively established the amount of             TOM GRAY
damages to Sherman and attorney's fees and that the
trial court erred in failing to render judgment for             Chief Justice
Sherman.
                                                                Before Chief Justice Gray,
CONCLUSION                                                      Justice Vance, and
The trial court erred in determining that Sherman take          Justice Reyna
nothing because Sherman                [**24] conclusively
established the amount of Sherman's damages.                    Reversed and rendered
Sherman was entitled to a default judgment on liability.
At the trial on the merits, the file of which the trial court   Opinion delivered and filed June 20, 2007
took judicial notice contained the request for admissions.




                                                                                                        Page 10 of 10
|   | Warning
As of: April 7, 2015 6:02 PM EDT


                           Southwestern Bell Mobile Sys. v. Franco
                                               Supreme Court of Texas
                                               June 5, 1998, Delivered
                                                     No. 97-0989

Reporter
971 S.W.2d 52; 1998 Tex. LEXIS 96; 41 Tex. Sup. J. 930; 14 I.E.R. Cas. (BNA) 54

SOUTHWESTERN BELL MOBILE SYSTEMS, INC.,                       Petitioner telephone company requested review of an
PETITIONER v. ODILIA FRANCO AND PATRICIA                      appeals court decision, which affirmed an award of
MENDEZ, RESPONDENTS                                           actual and punitive damages to respondents, customer
                                                              service employees, based on intentional infliction of
Prior History: [**1] ON PETITION FOR REVIEW                   emotional distress (IIED), and remanded for proof of
FROM THE COURT OF APPEALS FOR THE                             attorney's fees. Six months prior to termination for
THIRTEENTH DISTRICT OF TEXAS.                                 defrauding petitioner, respondents complained of sexual
                                                              harassment. Respondents, in turn, sued for retaliatory
Disposition: Southwestern Bell's petition for review          discharge. Petitioner asserted that the evidence was
granted and, without hearing oral argument, court of          legally insufficient, reinstatement was improper, and
appeals' judgment on claims for intentional infliction of     attorney's fees unwarranted. The lower court held that
emotional distress and for punitive damages reversed,         wrongful termination of respondents was so extreme
and judgment rendered that Franco and Mendez take             and outrageous that it supported a finding of IIED. The
nothing on these claims. Court of appeals' judgment on        lower court found respondents might get attorney's
Franco's reinstatement affirmed. Court of appeals'            fees, upon proof. One respondent sued for unlawful
judgment on Franco's attorney's fees affirmed, but            discrimination      and     requested   reinstatement.
judgment reversed and rendered that Mendez not                Respondents sought attorney's fees under Tex. Lab.
recover attorney's fees.                                      Code § 21.259. The court reversed appeals court's
                                                              judgment for IIED and punitive damages because
                                                              evidence was legally insufficient. The court affirmed
Core Terms
                                                              one respondent's reinstatement and awarded her
                                                              attorney's fees, but denied fees for remaining
damages, reinstatement, attorney's fees, intentional          respondent, who received only nominal damages.
infliction of emotional distress, trial court, termination,
outrageous, award of attorney's fees, court of appeals,       Outcome
fired, prevailing party, no evidence, punitive, nominal,
sexual                                                        The court reversed appeals court's judgment for
                                                              intentional infliction of emotional distress and punitive
Case Summary                                                  damages in favor of petitioner telephone company
                                                              because evidence presented by respondents, customer
                                                              service employees, was legally insufficient. One
Procedural Posture
                                                              respondent's reinstatement and award of attorney fees
Petitioner telephone company requested review of a            was affirmed. The other respondent was denied fees,
decision of the Court of Appeals, 13th District (Texas),      as she received only nominal damages.
which affirmed an award of actual and punitive damages
to respondent employees, based on intentional infliction      LexisNexis® Headnotes
of emotional distress, and remanded for proof of
attorney's fees. Petitioner asserted that the evidence
was legally insufficient, reinstatement was improper,           Torts > ... > Pain & Suffering > Emotional Distress >
and attorney's fees were unwarranted.                            Evidence
                                                                Torts > Intentional Torts > Intentional Infliction of Emotional
Overview                                                        Distress > General Overview
                                         971 S.W.2d 52, *53; 1998 Tex. LEXIS 96, **1


    Torts > Intentional Torts > Intentional Infliction of Emotional   Southwestern Bell firing the director of operations.
    Distress > Elements                                               Southwestern Bell rehired Franco on a probationary
                                                                      basis and amended her employment file to read that
HN1 To recover for the tort of intentional infliction of
                                                                      sexual harassment caused her absenteeism.
emotional distress, a plaintiff must prove that: (1) the
defendant acted intentionally or recklessly; (2) the                  In November 1990, Southwestern Bell fired Franco and
conduct was "extreme and outrageous"; (3) the                         Mendez for allegedly misappropriating air-time credit
defendant's actions caused the plaintiff emotional                    certificates and defrauding Southwestern [**3] Bell.
distress; and (4) the resulting emotional distress was                Southwestern Bell Director of Finance Joe Villarreal
severe.                                                               met with each woman to inform her of her termination
                                                                      and the reasons for it. Franco and Mendez subsequently
    Civil Procedure > ... > Standards of Review > Substantial         filed charges of unlawful discrimination with the Corpus
    Evidence > General Overview                                       Christi Human Relations Commission, an arm of the
                                                                      Texas Commission for Human Rights (TCHR).
HN2 In reviewing "no evidence" points of error, the court
must consider the evidence and draw all inferences in                 Franco and Mendez sued Southwestern Bell, alleging
the light most favorable to the verdict. If the evidence is           retaliatory discharge, intentional infliction of emotional
legally sufficient when viewed in this light, then the court          distress, and defamation. After receiving TCHR
may not reverse the trial court's judgment.                           permission to sue for civil rights violations, Franco filed
                                                                      a second suit alleging unlawful discrimination and
Opinion                                                               seeking reinstatement. The two suits were consolidated
                                                                      for trial. The jury found no defamation but did find that
[*53] PER CURIAM                                                      retaliatory discharge occurred, although it awarded no
                                                                      damages on that claim. The jury found for and awarded
Is wrongful termination of employment so extreme and                  Franco $ 25,500 and Mendez $ 20,000 in damages for
outrageous that, without more, it will support a jury                 intentional infliction of emotional distress. Also, the jury
finding of intentional infliction of emotional distress?              awarded Franco $ 20,000 and Mendez $ 25,500 in
The court of appeals held that it is. 1 It is not.                    punitive damages.
Furthermore, the respondents' punitive damages cannot
stand without the intentional-infliction claim. But, the              Franco and Mendez filed multiple post-verdict motions,
court of appeals' judgment is correct to the extent that it           including one asking for equitable relief in the form of
affirmed the trial court's order reinstating Odilia Franco.           reinstatement or rehiring, and one seeking attorney's
Further, there is no error in that portion of the judgment            fees under section 21.259 of the Texas Labor Code,
reversing and remanding the trial court's order of                     [**4] which allows a plaintiff who successfully alleges
attorney's fees for Franco. We reverse, however, as                   an unlawful employment practice to collect attorney's
 [**2] to Patricia Mendez's attorney's fees and hold that             fees. Southwestern Bell, in turn, moved for a judgment
Mendez may not recover such fees. Consequently, we                    notwithstanding the verdict.
reverse in part and affirm in part the court of appeals'
judgment.                                                             The trial court rendered judgment ordering that Franco
                                                                      and Mendez each recover $ 68,250 plus $ 22,750 in
The Corpus Christi branch of Southwestern Bell Mobile                 attorney's fees. It is unclear why the trial court ordered
Systems employed Franco and Mendez as customer                        that each [*54] plaintiff recover $ 68,250 in damages
service representatives. In May 1990, Southwestern                    when the jury awarded each of them only $ 45,500. It
Bell fired Franco for numerous absences and poor job                  appears that the trial court may have included attorney's
performance. At that time, Franco informed                            fees twice. The trial court also ordered Southwestern
Southwestern Bell Vice President John Brantley that                   Bell to reinstate Franco as a collection representative.
the director of operations had made unwelcome sexual                  Southwestern Bell appealed the finding of intentional
comments to her and to other female employees.                        infliction of emotional distress, the award of attorney's
Franco, Mendez, and several other women participated                  fees, and Franco's reinstatement. The court of appeals
in the ensuing investigation, which resulted in                       affirmed Franco's reinstatement and the award of actual

1
    951 S.W.2d 218.
                                                                                                                      Page 2 of 5
                                        971 S.W.2d 52, *54; 1998 Tex. LEXIS 96, **4



and punitive damages to both Franco and Mendez                    harassment. However, the mere fact of termination of
based on intentional infliction of emotional distress. 2          employment, even if the termination is wrongful, is not
 [**5] The court of appeals also held that, although an           legally sufficient evidence that the employer's conduct
award of attorney's fees was proper in this case, Franco          was extreme and outrageous under the rigorous
and Mendez had not properly proven the fees. 3 The                standard that we established in Twyman. 9
court of appeals remanded for proof supporting the
fees. 4                                                            [**7] Perhaps recognizing that termination alone is
                                                                  insufficient evidence, Franco and Mendez also
We turn first to Southwestern Bell's argument that no
                                                                  attempted to prove that Southwestern Bell's agents
evidence supports the award for intentional infliction of
                                                                  behaved in an extreme and outrageous manner during
emotional distress. HN1 To recover for the tort of
                                                                  the termination. Specifically, Franco and Mendez
intentional infliction of emotional distress, a plaintiff
                                                                  produced evidence that Southwestern Bell fired them in
must prove that: (1) the defendant acted intentionally or
                                                                  the unnecessary presence of coworkers, forced them to
recklessly; (2) the conduct was "extreme and
                                                                  collect and remove their belongings in front of others,
outrageous"; (3) the defendant's actions caused the
                                                                  and immediately took steps to repossess car phones
plaintiff emotional distress; and (4) the resulting
                                                                  that Southwestern Bell owned. This evidence falls far
emotional distress was severe. 5 We are here concerned
                                                                  short of being legally sufficient to prove that
with the second element, which requires that the
                                                                  Southwestern Bell's conduct was extreme and
conduct be "so outrageous in character, and so extreme
                                                                  outrageous. 10
in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly             No evidence supports the jury finding of intentional
intolerable in a civilized community." 6                          infliction of emotional distress, [*55] and so the finding
                                                                  cannot support the judgment. Additionally, because no
Southwestern Bell argues that the [**6] evidence was
                                                                  evidence supports the claim for which actual damages
legally insufficient because Franco and Mendez
                                                                  were awarded, we must reverse the punitive damages
produced no evidence of extreme or outrageous
                                                                  award. 11
conduct. HN2 In reviewing "no evidence" points of error,
we must consider the evidence and draw all inferences              [**8] Turning to the reinstatement order, Southwestern
in the light most favorable to the verdict. 7 If the evidence     Bell argues that the court of appeals erred in affirming
is legally sufficient when viewed in this light, then we          the reinstatement order because Franco's pleadings
may not reverse the trial court's judgment. 8                     did not seek reinstatement, because Franco requested
Franco and Mendez rely mainly upon their evidence                 reinstatement in a post-verdict hearing before the trial
that they were fired in retaliation for reporting sexual          court, and because reinstatement would disrupt

2
     951 S.W.2d at 225, 226, 229.
3
     951 S.W.2d at 226-27.
4
     Id.
5
     See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. d.).
6
     Id.
7
     See, e.g., Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 51 & n.1 (Tex. 1997).
8
     See, e.g., Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994).
9
   See Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (holding that evidence that an
employer wrongfully accused an employee of thievery and fired him is legally insufficient); Beiser v. Tomball Hosp. Auth., 902
S.W.2d 721, 725 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (holding that termination in violation of a whistleblower
statute is not in itself extreme and outrageous); see also Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)
("Even though conduct may violate Title VII as sexual harassment, it does not necessarily become intentional infliction of
emotional distress under Texas law.").
10
      See Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex. 1993); Diamond Shamrock, 844 S.W.2d at 202.
11
      See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).
                                                                                                                    Page 3 of 5
                                     971 S.W.2d 52, *55; 1998 Tex. LEXIS 96, **8



Southwestern Bell's workplace. We reject each of these         In Farrar, the plaintiff alleged that various state-actor
as grounds for reversal. First, Franco's Original Petition     defendants had violated his civil rights. 15 Although the
alleging unlawful employment practices "requests that          jury agreed that the plaintiff's civil rights were violated,
she reinstated [sic] with back pay retroactive to the date     they found that the defendants' actions were
of     her    termination."       Typographical     errors     nevertheless not a proximate cause of the plaintiff's
notwithstanding, this request very clearly states a            injury. 16 The trial court entered judgment that the plaintiff
reinstatement claim. Furthermore, this pleading was            take nothing, and the court of appeals remanded for
not superseded merely because it was consolidated              entry of judgment ordering nominal damages of $ 1. 17
into the previously filed suit. 12                             The United States Supreme Court considered whether
                                                               the plaintiff was entitled to attorney's fees as a
Second, the jury found that Southwestern Bell                  "prevailing party" due to the finding of civil-rights
discharged Franco and Mendez in retaliation for their          violations and in spite of the nominal damages. 18 The
complaints of sexual harassment, an unlawful                   Court held that the plaintiff was within the definition of a
employment practice under Texas Labor Code sections            "prevailing party," but nevertheless rejected the award
21.051 and 21.055. [**9] This finding specifically             of attorney's fees because the plaintiff failed to prove
empowered the trial court to prohibit such acts by             damages -- an essential element for recovery. 19 In
injunction and to "order additional equitable relief as        such a case, the Court reasoned, "the only [**11]
may be appropriate . . . [including] hiring or reinstating     reasonable fee is usually no fee at all." 20
with or without back pay." 13
                                                               Franco and Mendez attempted to recover attorney's
Third, although Southwestern Bell produced some                fees in this case under Texas Labor Code section
evidence that Franco's return might be disruptive, other       21.259, which, like its federal counterpart, gives the trial
evidence indicated that Southwestern Bell was opening          court discretion to award reasonable attorney's fees to
a new office in Corpus Christi and that Southwestern           a "prevailing party." We hold that, like the Farrar plaintiff,
Bell's employees would be willing to try to work with          Franco and Mendez were prevailing parties within the
Franco. When facts are disputed, we cannot conclude            meaning of [*56] section 21.259. Therefore, we must
that the trial court abused its discretion in ordering         decide whether Southwestern Bell is correct in asserting
reinstatement.                                                 that, despite Franco's and Mendez's status as prevailing
                                                               parties, the jury's award of zero damages on the
We now consider Southwestern Bell's final assertion:           retaliatory discharge claim precludes an award of
that the trial court abused its discretion in ordering         attorney's fees.
attorney's fees for Franco and Mendez because the jury
awarded no damages on the retaliatory discharge claim          Southwestern Bell seems to confuse the jury's verdict
-- the only claim that can support an award of attorney's      with the trial court's judgment. It is the judgment, not the
fees. Southwestern Bell cites Farrar v. Hobby 14 for the       verdict, that we must consider in determining whether
proposition that a plaintiff who [**10] receives nominal       attorney's fees are proper. In Farrar, [**12] the Supreme
or zero damages is not entitled to attorney's fees.            Court considered a judgment for nominal damages of $

12
     Cf. TEX. R. CIV. P. 65.
13
     TEX. LAB. CODE § 21.258(a), (b)(1).
14
     506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992).
15
     See 506 U.S. at 105-06.
16
     See id. at 106.
17
     See id. at 107.
18
     See id. at 105.
19
     See id. at 115.
20
     Id.
                                                                                                                Page 4 of 5
                                   971 S.W.2d 52, *56; 1998 Tex. LEXIS 96, **12



1. 21 In this case, we consider a judgment that ordered      hearing oral argument, reverse the court of appeals'
reinstatement for Franco, although it did not order          judgment on the claims for intentional infliction of
meaningful relief for Mendez that has not been reversed      emotional distress and for punitive damages, and render
on appeal. Farrar speaks to the case of a "plaintiff who     judgment that Franco and Mendez [**13] take nothing
seeks compensatory damages but receives no more              on these claims. We affirm the court of appeals'
than nominal damages." 22 Mendez is such a plaintiff,        judgment on Franco's reinstatement. We also affirm the
and therefore should not recover attorney's fees.            court of appeals' judgment on Franco's attorney's fees,
However, Farrar does not consider whether attorney's
                                                             but reverse and render judgment that Mendez not
fees are proper for a plaintiff who wins a judgment
                                                             recover attorney's fees.
awarding equitable relief, as Franco did. The award of
attorney's fees to Franco was not an abuse of discretion.
                                                             Opinion delivered: June 5, 1998
Under Texas Rule of Appellate Procedure 59.1, we
grant Southwestern Bell's petition for review and, without




21
     See id. at 107.
22
     Id. at 115.
                                                                                                         Page 5 of 5
                                                                                                                  Page 1




Caution
As of: Mar 30, 2015

                 JAMES STEPHENSON, a/k/a JIM STEPHENSON, ET AL., Appellants v. COR-
                  PORATE SERVICES, INC., d/b/a LITHOCRAFT FINE PRINTING, Appellees

                                                    No. 12-81-0073-CV

                             COURT OF APPEALS OF TEXAS, Twelfth District, Tyler

                                      650 S.W.2d 181; 1983 Tex. App. LEXIS 4283


                                                      March 31, 1983

PRIOR HISTORY:               [**1]       Appeal from the       fees under Article 2226, V.A.C.S., in the amount of
127th Judicial District Court of Harris County, Texas.         $20,000.00.
                                                                    A statement of facts was filed in the appeal [**2]
                                                               by appellee and reflects that, after the issuance, service,
COUNSEL: Thomas J. Gavronovic, Houston, Texas, for
                                                               return and filing of citation in the cause the trial court
Appellant.
                                                               called the case for trial and conducted an evidentiary
                                                               hearing on damages and attorney's fees on October 21,
George M. Bishop, Houston, Texas, for Appellee.
                                                               1980. Appellee appeared by counsel and Cecil Smith,
                                                               its representative, and the appellants having theretofore
JUDGES: Paul S. Colley, Associate Justice.
                                                               failed to appear or file answers also failed to appear at
                                                               the call of the case for trial. Cecil Smith, who was the
OPINION BY: COLLEY
                                                               general manager of Lithocraft Fine Printing, was sworn
                                                               and testified for appellee. The witness testified that he
OPINION
                                                               was acquainted with the appellant, James Stephenson,
      [*182] This is an appeal by writ of error chal-          a/k/a Jim Stephenson and that Stephenson had ordered
lenging the entry of a default judgment against appel-         various printing jobs done and instructed the appellee to
lants. On April 1, 1980, Corporate Services, d/b/a             bill Franklin National Corp., Ltd., or Stephenson Foun-
Lithocraft Fine Printing, hereinafter appellee, filed a suit   dation therefor; that Stephenson paid previous printing
with sworn account annexed against James Stephenson,           bills to appellee from all of such companies; and that
a/k/a Jim Stephenson, individually and doing business as       $60,228.27 was due and owing and unpaid by the appel-
Jim Stephenson Investments and Jim Stephenson Co., the         lant to appellee on the printing account. Appellee also
Stephenson Foundation, Inc., a nonprofit corporation,          introduced into evidence a written agreement signed by
Franklin National Corp., Ltd., a Cayman Island (foreign)       appellant Jim Stephenson (Plaintiff's Exhibit No. 3,
corporation and Jim Stephenson Company, Inc., a Texas          Transcript p. 19) in which Jim Stephenson personally
corporation, hereinafter appellants. The suit sought re-       guaranteed the payment of all indebtednesses [**3]
covery jointly and severally against appellants of the sum     owed by Stephenson Foundation no later than December
of $60,228.27 and interest thereon for an unpaid account       1, 1979. Sharolyn Wood, attorney for appellee, testified
for printing services, materials and postage furnished         that a reasonable attorney's fee in the case would be
appellants by appellee. Appellee also sought attorney's        $20,000.00. Following this hearing the trial court
                                                               signed a default judgment in favor of appellee against
                                                                                                                 Page 2
                                  650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, **


appellants, jointly and severally, for $60,228.27 damag-           In support of their argument appellants cite, among
es, prejudgment interest in the amount of $3,486.11, and      other cases, Southern Pacific Co. v. Block, 84 Tex. 21, 19
attorney's fees in the amount of $20,000.00, together         S.W. 300 (Tex. 1892). It is clear that a default judgment,
with all costs and with interest on the judgment sum at       not supported by proper service of process, is void. In a
the rate of 9% per annum until paid. On April 20, 1981,       direct attack by writ of error on the judgment, no pre-
appellants filed this petition for writ of error.             sumption obtains from the recitation in the default judg-
                                                              ment that proper service was had. Strict compliance
     In their brief appellants raise three points of error.
                                                              with the law regarding service of process must be af-
The first point alleges error in entering the default judg-
                                                              firmatively shown by the transcript unless the defendants
ment against appellant, Franklin National Corp., Ltd.,
                                                              in the judgment made an appearance before judgment.
and Jim Stephenson Company, Inc., because the officer's
                                                              Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934
return on the citation does not show service on the proper
                                                              (Tex. Comm'n App. 1935, opinion adopted); McKanna v.
party. The return [*183] on the citation served on
                                                              Edgar, 388 S.W.2d 927 (Tex. 1965).
appellant, Franklin National Corp., Ltd., reads:
                                                                   In our case, Franklin National Corp., Ltd., was
    CONSTABLE'S RETURN
                                                              named as a defendant upon whom service could be had
     Received this writ on the 23 of July, 1980 at 10:23      by serving the president, Jim Stephenson. As above set
o'clock A.M., and executed the same in Harris County,         forth the return made by the deputy constable recites that
Texas, on the 27 day of Sept., 1980, at 7:50 [**4]            the citation (writ) was executed by ". . . summoning the
o'clock P.M., by summoning the FRANKLIN NA-                   Franklin National Corp . . . ." The question then is posed,
TIONAL CORP.,                                                 does the well-established "strict compliance" rule an-
                                                              nounced in Flynt and McKanna above render the default
    (by delivering to JIM STEPHENSON, in person, a            judgment void [**6] as to Franklin National Corp.,
corporation President                                         Ltd., because the officer's return failed to write the word
    (by leaving in the principal office during office         "Ltd." after the word "Corp."? Appellants argue that
hours                                                         Southern Pacific Co., supra, controls. We do not agree.
                                                              In that case plaintiff intended to sue Southern Pacific
             of said CORPORATION a true copy of this          Company, but in fact sued Southern Pacific Railroad
writ, together with accompanying certified copy plain-        Company. The citation was directed to Southern Pacific
tiff's original petition.                                     Railroad Company and the return showed service on
    ED "TRACY" MAXON, Constable Precinct No. 5                Southern Pacific Company. In the case before us ap-
Harris County, Texas                                          pellee named the appellant, Franklin National Corp.,
                                                              Ltd., as a party defendant. The citation directed service
     By /s/ J. LOOP, Deputy                                   on Franklin National Corp., Ltd., by serving Jim Ste-
    The return on the citation served on appellant, Jim       phenson as president. The return though reciting service
Stephenson Company, Inc., reads:                              was accomplished by summoning Franklin National
                                                              Corp. by delivery to Jim Stephenson as president a true
    CONSTABLE'S RETURN                                        copy of the writ and a ". . . certified copy of Plaintiff's
     Received this writ on the 23 day of July, 1980 at        Original Petition." Southern Pacific Co. is obviously
10:23 o'clock A.M., and executed the same in Harris           distinguishable on the facts as shown by the transcript
County, Texas, on the 27 day of Sept., 1980, at 7:50          here. In that case the intended defendant was not
o'clock P.M., by summoning the JIM STEPHENSON                 named in the pleading and the citation was not directed
COMPANY, INC.,                                                to Southern Pacific Co., but to Southern Pacific Railroad
                                                              Co.
    (by delivering to JAMES STEPHENSON, in person,
a corporation PRESIDENT                                            Service of process in this case is governed by Article
                                                              [**7] 2.11, Texas Business Corp. Act, V.A.C.S., which
    (by leaving in the principal office during office         reads in part: "A. The president . . . of the corporation
hours                                                         shall be agent of such corporation upon whom any pro-
            of the said CORPORATION a true copy of            cess, notice, . . . may be served."
this writ, together with accompanying certified copy                [*184] We have carefully reviewed the transcript
plaintiff's original petition.                                in this case and note that in Paragraph 1 of appellee's
    ED "TRACY" MAXON, Constable Precinct No. 5                original petition it is alleged, "Defendant Franklin Na-
Harris County, Texas                                          tional Corp., Ltd., may be served with citation by serving
                                                              its president, Jim Stephenson . . . in Harris County, Tex-
     By /s/ J. LOOP [**5] , Deputy                            as." The purpose of citation is to give notice to a de-
                                                                                                                   Page 3
                                   650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, **


fendant that he has been sued and by whom and for what               By their second point appellants attack the suffi-
so that due process will be served and the defendant will       ciency of the sworn account attached to the petition as
have an opportunity to appear and defend the action.            being insufficiently itemized, and [**10] by their third
Sgitcovich v. Sgitcovich, 236 S.W.2d 861, 864 (Tex. Civ.        point claim the default judgment must be struck down
App. -- Galveston 1951), rev'd on other grounds, 150            because of variances between invoices and itemized ac-
Tex. 398, 241 S.W.2d 142; Gilbert v. Lobley, 214 S.W.2d         counts. Appellants do not point out or set forth any such
646, 650 (Tex. Civ. App. -- Fort Worth 1948, no writ).          claimed discrepancies or cite any authorities to support
In this case an examination of the full record, including       the point. However, we have carefully reviewed the
the pleadings of appellee and the citation and return           account and pleading of the appellee and find that the
thereon, shows affirmatively that appellant, Franklin           petition alleges the sale and delivery of services and
National Corp., Ltd., was served with proper process            goods, wares and merchandise described in Exhibit A;
sufficient to put it upon notice of the suit. [**8] See,        the petition further alleges that the appellants promised
Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394                to pay and failed to do so, and alleged reasonable attor-
(Tex. Civ. App. -- Fort Worth 1981, writ ref'd n.r.e.).         ney's fees on the part of the appellee in the sum of
And in so holding we decline to follow Mecca Fire Ins.          $20,000.00. Exhibit A attached to the pleading includes
Co. v. Campbell, 145 S.W. 630 (Tex. Civ. App. -- Gal-           the affidavit of the account in proper form with a sum-
veston 1912, no writ) and adopt the statement in that case      mary of the individual transactions and their respective
made in dissent by Justice Reese at 632: ". . . It would        dates, which are the subject matter of this suit, and the
seem to be a sacrifice of substance to form . . ." to hold      amount due on each of said invoices. Ledger sheets at-
in this case that Jim Stephenson alleged to be the presi-       tached to [*185] the account also show a systematic
dent of Franklin National Corp., Ltd., was not apprised         entry of credits and debits in the account and the result-
by the service here that Franklin National Corp., Ltd.,         ing balances and dates thereof beginning on April 30,
was sued by appellee. In fact, the transcript reflects that     1979, and ending on January 31, 1980. Then follows
on October 30, 1980, (within ten days after the entry of        seven individual invoices as a part of the account, num-
the default judgment) appellant Franklin National Corp.,        bered and dated with adequate [**11] description of
Ltd., filed a motion to set aside the default judgment and      printing jobs done and charges therefor, together with the
for new trial on the grounds that Jim Stephenson was not        dates thereof. Therefore we hold that appellee suffi-
an officer of said company and was not authorized to            ciently complied with Tex. R. Civ. P. 185, and that the
accept service. This motion was overruled on Novem-             account shows with a reasonable degree of certainty the
ber 26, 1980, and the form of the order was approved by         nature each item, i.e., each printing job done, the charges
appellant's counsel, Thomas J. Gavranovic. We believe           made therefor and the dates of each transaction. Bou-
that we have given the officer's return a fair, reasonable      cher v. City Paint & Supply, Inc., 398 S.W.2d 352 (Tex.
and natural construction, and considering the record as a       Civ. App. -- Tyler 1966, n.w.h.); see also Williamsburg
[**9] whole, have given effect to the plain meaning and         Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168
intent of the citation and return. 72 C.J.S., Process Sec-      (Tex. Civ. App. -- Houston [1st Dist.] 1970, n.w.h.).
tion 97; 62 Am Jur 2d, Process, Section 165.                    Appellant's second point is overruled.
     All other cases cited on this point by appellant, in-            As earlier stated in the opinion an evidentiary hear-
cluding Brown-McKee, Inc. v. J. F. Bryan & Assoc., 522          ing was conducted by the trial court on the issue of
S.W.2d 958 (Tex. Civ. App. -- Texarkana 1975, no writ),         damages and attorney's fees. In that hearing appellee
are all distinguishable on their facts.                         introduced sufficient evidence to establish the furnishing
                                                                of the printing services, materials and postage by appel-
     Appellants' point 1, as it refers to the service of pro-
                                                                lee to appellants which was the subject of the sworn ac-
cess on Jim Stephenson Company, Inc., contends that
                                                                count. The testimony of Mr. Smith established the debt
since the citation directed service on it by serving Jim
                                                                as being unpaid in the amount sued for. No complaint is
Stephenson, its president, and the return shows that the
                                                                made in this appeal regarding the sufficiency of the evi-
process was delivered to James Stephenson, its president,
                                                                dence to support the award of attorney's fees made by the
such is fatally defective. There is no merit to such ar-
                                                                trial court because [**12] of the nature of the mode of
gument. The officer's return that James Stephenson was
                                                                review of the judgment sought by appellants. Thus,
president of the corporation is prima facie evidence of
                                                                since we have found that Franklin National Corp., Ltd.,
that fact. Employer's Reinsurance Corp. v. Brock, 74
                                                                and Jim Stephenson Company, Inc., are properly before
S.W.2d 435 (Tex. Civ. App. -- Eastland 1934, writ dis-
                                                                the court, that appellee alleged a cause of action requir-
m'd); LaFleaur v. Switzer, et al., 109 S.W.2d 239 at 241
                                                                ing an answer on the part of all appellants, each of whom
(Tex. Civ. App. -- Beaumont 1937, no writ). Appel-
                                                                failed to appear and answer but wholly made default, the
lant's point 1 is overruled.
                                                                cause of action alleged was admitted. Watson v. Shep-
                                                                pard Federal Credit Union, 589 S.W.2d 742, 744 (Tex.
                                                                                                              Page 4
                                650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, **


Civ. App. -- Fort Worth 1979, writ ref'd n.r.e.); proper   no writ); Jones v. Ben Maines Air Conditioning, 621
proof of damages and attorney's fees being made, the       S.W.2d 437 (Tex. Civ. App. -- Texarkana 1981, no writ).
default judgment is upheld. TXXN, Inc. v. D/FW Steel
                                                               The judgment of the trial court is affirmed.
Co., 632 S.W.2d 706, 707 (Tex. App. -- Fort Worth 1982,
|   | Caution
As of: April 7, 2015 6:03 PM EDT


                       Sutton v. Hisaw & Assocs. Gen. Contrs., Inc.
                                  Court of Appeals of Texas, Fifth District, Dallas
                                        November 30, 2001, Opinion Filed
                                               No. 05-01-00002-CV

Reporter
65 S.W.3d 281; 2001 Tex. App. LEXIS 8001

RANDY SUTTON, Appellant v. HISAW & ASSOCIATES               purchased materials from an electric supply company.
GENERAL CONTRACTORS, INC. AND RICHARD L.                    Later, the worker signed two partial lien releases stating
HISAW INDIVIDUALLY, Appellees                               all materials used in the field house were paid for. He
                                                            signed these lien releases as "co-owner of the
Subsequent History: [**1] Rehearing Denied January          subcontractor." The materials were never paid for. The
14, 2002. Released for Publication January 14, 2002.        supplier sued the contractor and recovered a large
Petition for Review Denied March 28, 2002.                  judgment. The contractor then sued the worker. On
                                                            appeal, the worker contended there was insufficient
Prior History: On Appeal from the 44th Judicial District    evidence to establish the essential elements of the
Court. Dallas County, Texas. Trial Court Cause No.          contractor's fraud cause of action. Because the appeals
DV99-05835.                                                 court found there was no evidence of either reliance or
                                                            damages caused by any misrepresentation, it held the
Disposition: REVERSED and RENDERED.                         evidence was legally insufficient to support the judgment
                                                            in favor of the contractor based on his fraud cause of
Core Terms                                                  action. The absence of any evidence to support at least
                                                            one element of each of the contractor's causes of action
                                                            constituted error apparent on the face of the record.
Contractors, materials, no evidence, cause of action,
damages, contends, trial court's judgment, legal            Outcome
insufficiency, default judgment, field house
                                                            The appeals court reversed the trial court's judgment
                                                            and remanded the case.
Case Summary
                                                            LexisNexis® Headnotes
Procedural Posture

After losing a money judgment to another party, plaintiff     Civil Procedure > Remedies > Writs > General Overview
contractor filed a lawsuit against defendant worker to        Governments > Legislation > Statute of Limitations > Time
recover the damages awarded in the prior suit. The            Limitations
contractor asserted causes of action for fraud, breach
of contract, and quantum meruit. The 44th Judicial          HN1 A restricted appeal is a direct attack on a trial
District Court, Dallas County, Texas, rendered a            court's judgment. A restricted appeal must (1) be brought
post-answer default judgment in favor of the contractor.    within six months after the trial court signs the judgment,
The worker later filed a notice of restricted appeal.       (2) by a party to the suit who did not participate in the
                                                            actual trial, and (3) the error complained of must be
Overview                                                    apparent on the face of the record.

The contractor was the general contractor for a               Civil Procedure > Remedies > Writs > General Overview
construction project to build a field house for a school
district. Contractor hired a subcontractor to perform the   HN2 In a restricted appeal, an appellant is afforded the
electrical work. The worker was an employee of the          same scope of review as an ordinary appeal, which
subcontractor. In performing its work, the subcontractor    includes a review of the entire case. A review of the
                               65 S.W.3d 281, *281; 2001 Tex. App. LEXIS 8001, **1



entire case includes a review of legal and factual              Contracts Law > Remedies > Equitable Relief > General
sufficiency claims.                                             Overview

  Civil Procedure > Appeals > Standards of Review > General   HN7 The elements of a quantum meruit claim include
  Overview                                                    proof of (1) valuable services that were rendered or
                                                              materials furnished, (2) for the person sought to be
HN3 A legal sufficiency, or no-evidence point of error, is    charged, (3) which services and materials were
a question of law. An appellant who is challenging the        accepted by the person sought to be charged, used,
legal sufficiency of the evidence must demonstrate that       and enjoyed by him, (4) under such circumstances as
no evidence exists to support the judgment. In reviewing      reasonably notified the person sought to be charged
a legal sufficiency point of error, an appellate court        that the plaintiff in performing such services was
looks to see whether any evidence supports the                expecting to be paid by the person sought to be charged.
judgment. If there is more than a scintilla of evidence,
the appellate court upholds the judgment.
                                                              Counsel: FOR APPELLANT: Robert Smith Morris, The
                                                              Hammerle Law Firm, Denton, Tx.
  Civil Procedure > Appeals > Standards of Review > Clearly
  Erroneous Review
                                                              FOR APPELLEES: Jeffrey Robert Sandberg, McGuire,
HN4 When an appellant challenges the factual                  Craddock & Strother, P.C., Dallas, TX.
sufficiency of the evidence, the appellant must establish
the evidence is factually insufficient to support the         Judges: Before Justices Kinkeade, Richter, and
judgment. In reviewing such issues, an appellate court        Francis. Opinion By Justice Richter.
considers all the evidence presented at trial. The
appellate court may only set aside a finding for factual      Opinion by: MARTIN RICHTER
insufficiency if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and             Opinion
unjust.
                                                              Opinion By Justice Richter
  Torts > Business Torts > Fraud & Misrepresentation >
   General Overview                                            [*283] In this restricted appeal, Randy Sutton contends
                                                              the trial court erred in rendering a post-answer default
HN5 A fraud cause of action requires: (1) a material          judgment in favor of Hisaw & Associates General
misrepresentation, (2) that was either known to be false      Contractors, Inc. and Richard L. Hisaw individually
when made or was asserted without knowledge of its            (collectively Hisaw), because the evidence is legally
truth, (3) which was intended to be acted upon, (4)           and factually insufficient. We agree with Sutton that the
which was relied upon, and (5) which caused injury.           evidence is legally insufficient and, therefore, reverse
                                                              the trial court's judgment.
  Contracts Law > Breach > Breach of Contract Actions >
  General Overview
                                                              BACKGROUND
  Contracts Law > Breach > Breach of Contract Actions >
  Elements of Contract Claims                                 Hisaw was the general contractor for a construction
                                                              project to build a field house for the Carrollton
  Contracts Law > Breach > General Overview
                                                              Independent School District. Hisaw hired D.R.
  Contracts Law > Standards of Performance > Delivery &       Contractors as a subcontractor to perform electrical
  Tender                                                      work [*284] on the field house. Sutton was an employee
  Contracts Law > Remedies > Equitable Relief > Quantum       of D.R. Contractors. In performing this subcontracting
  Meruit                                                      work, D.R. Contractors purchased materials from
                                                              Crawford Electric Supply Company (Crawford).
HN6 The elements of a breach of contract action are (1)       Subsequently, Sutton signed two partial lien releases
the existence of a valid contract, (2) performance or         stating that, as of particular dates, all materials [**2]
tendered performance by the plaintiff, (3) breach of the      used in building the field house were paid for. Sutton
contract by the defendant, and (4) damages sustained          signed these lien releases as "co-owner of D.R.
by the plaintiff as a result of the breach.                   Contractors." These facts are undisputed.
                                                                                                           Page 2 of 4
                               65 S.W.3d 281, *284; 2001 Tex. App. LEXIS 8001, **2



Hisaw makes various other allegations in the petition.       HN3 A legal sufficiency, or no-evidence point of error, is
The petition states Hisaw paid D.R. Contractors for its      a question of law. R.S. v. B.J.J., 883 S.W.2d 711, 715
work, primarily based on the assertions in the liens.        (Tex. App.-Dallas 1994, no writ). An appellant who is
Subsequently, Hisaw received notice from Crawford            challenging the legal sufficiency of the evidence must
that it had not been paid for the materials D.R.             demonstrate that no evidence exists to support the
Contractors used on the field house. Crawford                judgment. Casino Magic Corp. v. King, 43 S.W.3d 14,
eventually filed suit against Hisaw and recovered a          19 (Tex. App.-Dallas 2001, pet. denied). In reviewing a
judgment in the amount of $ 148,398.38.                      legal sufficiency point of error, we look to see whether
                                                             any evidence supports the judgment. See id. If there is
Hisaw then instituted this lawsuit against Sutton and        more than a scintilla of evidence, we uphold the
others to recover the damages awarded in the Crawford        judgment. See id. In contrast, HN4 when an appellant
suit. Hisaw asserted causes of action for fraud, breach      challenges the factual sufficiency of the evidence, the
of contract, quantum meruit, and indemnity by express        appellant must establish the evidence is factually
agreement. Sutton filed a general denial. Sutton did not     insufficient to support the judgment. See id. In reviewing
appear for trial, and the trial court rendered a             such issues, we consider [*285] all the evidence
post-answer default judgment. Three months later, after      presented at trial. See R.S., 883 S.W.2d at 715. We
the time expired for filing a traditional appeal, Sutton     may only set aside a finding for factual insufficiency if it
filed a notice of restricted appeal.                         is so contrary to the overwhelming weight of the
                                                             evidence as to be clearly wrong and [**5] unjust. See id.
DISCUSSION
                                                             In this case, Sutton argues there is no evidence, or
In issue one, Sutton contends he has met the                 factually insufficient evidence, to support the judgment.
requirements for a restricted appeal. HN1 A restricted       Specifically, Sutton contends Hisaw presented
appeal is a direct attack on the trial court's judgment.     insufficient evidence of reliance and damages.
 [**3] Gen. Elec. Co. v. Falcon Ridge Apartments Joint
Venture, 811 S.W.2d 942, 943 (Tex. 1991). A restricted       HN5 A fraud cause of action requires: (1) a material
appeal must (1) be brought within six months after the       misrepresentation, (2) that was either known to be false
trial court signs the judgment, (2) by a party to the suit   when made or was asserted without knowledge of its
who did not participate in the actual trial, and (3) the     truth, (3) which was intended to be acted upon, (4)
error complained of must be apparent on the face of the      which was relied upon, and (5) which caused injury.
record. Norman Communications v. Tex. Eastman Co.,           Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
955 S.W.2d 269, 270 (Tex. 1997). HN2 In a restricted         2001) (citing Formosa Plastics Corp. U.S.A. v. Presidio
appeal, an appellant is afforded the same scope of           Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.
review as an ordinary appeal, which includes a review        1998)).
of the entire case. Id. A review of the entire case
includes a review of legal and factual sufficiency claims.   After Sutton did not appear for trial, Hisaw moved for a
Id.                                                          default judgment. At the default judgment hearing, Hisaw
                                                             called no witnesses to testify. Instead, Hisaw offered the
Hisaw concedes Sutton has met the first two                  following: (1) the contract between D.R. Contractors
requirements for a restricted appeal, and we agree.          and Hisaw, (2) two partial waivers of liens signed by
Sutton brought the appeal within six months of the           Sutton as co-owner of D.R. Contractors, (3) a transcript
judgment. He was also a party to the suit, but did not       of Sutton's testimony in a different case, (4) a judgment
participate in the trial. Therefore, we resolve issue one    from a different case, and (5) an affidavit of attorney's
in Sutton's favor and have jurisdiction to review the        fees.
record to determine whether there is error on the face of
the record.                                                  We now review this evidence presented at the hearing
                                                              [**6] to determine whether Hisaw presented any
In issue two, Sutton challenges the legal and factual        evidence of the essential elements of his fraud cause of
sufficiency of the evidence to support the trial court's     action. In the petition, Hisaw contends he paid Sutton
judgment. Sutton [**4] contends there was no evidence        for the materials and labor based on the assertions in
or, alternatively, insufficient evidence to establish the    the waivers, particularly the assertion that all materials
essential elements of Hisaw's fraud cause of action.         had been paid for. At the hearing on the default
                                                                                                           Page 3 of 4
                               65 S.W.3d 281, *285; 2001 Tex. App. LEXIS 8001, **6



judgment, Hisaw presented the waivers, but presented          services was expecting to be paid by the person sought
no evidence establishing that he paid Sutton based on         to be charged. Bashara v. Baptist Mem'l Hosp. Sys.,
any assertions in the waivers. Therefore, Hisaw               685 S.W.2d 307, 310 (Tex. 1985). Hisaw presented no
presented no evidence that he relied on any                   evidence that he presented services or materials to
misrepresentations. In addition, Hisaw contends               Sutton. Therefore, there is legally insufficient evidence
Crawford sued him for payment of materials D.R.               to establish a quantum meruit cause of action.
Contractors used on the field house and recovered a
judgment in the amount of $ 148,398.38. However,              Finally, as to Hisaw's cause of action for indemnity by
while Hisaw offered a judgment in a suit between              express agreement, we acknowledge that the partial
Crawford and Hisaw awarding this exact amount of              waiver of lien provides at least some evidence of an
damages, he did not present any evidence tying this           agreement for Sutton to indemnify Hisaw for any
judgment to any actions of Sutton. Therefore, there is        damages "sustained by reason of labor performed
no evidence of injury caused by any misrepresentation.        and/or materials and supplies furnished . . . on said
Because we conclude there is no evidence in the record        project." However, Hisaw presented no evidence to
of either reliance or damages caused by any                   support his allegation he was sued for materials that
misrepresentation, we conclude the evidence is legally        were not paid for by D.R. Contractors and Sutton.
insufficient to support the trial court's judgment in favor   Without evidence of such a suit, there is no evidence
of Hisaw based [**7] on his fraud cause of action.            Sutton is liable for failure to indemnify. Therefore, there
                                                              is legally insufficient evidence to establish a cause of
Hisaw also asserted causes of action for breach of
                                                              action for indemnity.
contract, quantum meruit, and indemnity by express
agreement. HN6 The elements of a breach of contract           The absence of any evidence to support at least one
action are (1) the existence of a valid contract, (2)         element of each of Hisaw's causes of action constitutes
performance or tendered performance by the plaintiff,         error apparent on the face of the record. See Casino
(3) breach of the contract by the defendant, and (4)          Magic Corp., 43 S.W.3d at 20. [**9] We resolve Sutton's
damages sustained by the plaintiff as a result of the         second issue in his favor.
breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593
(Tex. App.-Houston [14th Dist.] 2000, no pet.). We have       CONCLUSION
already concluded Hisaw failed to establish any
damages as a result of any actions caused by Sutton.          Our disposition of Sutton's second issue makes it
Therefore, Hisaw failed to present any evidence of one        unnecessary for us to consider his remaining issues.
of the elements of a breach of contract action and, thus,     See TEX. R. APP. P. 47.1. Having concluded there is
failed to present legally sufficient evidence to establish    legally insufficient evidence to support the judgment,
a breach of contract.                                         we are required to reverse and render. See Nat'l Life
                                                              Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.
HN7 The elements of a quantum meruit claim include            1969). We reverse the trial court's judgment and render
proof of (1) valuable services that were rendered or          judgment that Hisaw take nothing on his claims against
materials furnished, (2) for the person sought to be          Sutton.
charged, (3) which services and materials were
accepted by the person sought to be charged, used,            MARTIN RICHTER
and enjoyed by him, (4)            [*286]    under such
circumstances as reasonably notified the person sought        JUSTICE
to be charged that the plaintiff in performing [**8] such




                                                                                                             Page 4 of 4
|   | Caution
As of: April 7, 2015 6:04 PM EDT


                                    Texas Commerce Bank v. New
                                               Supreme Court of Texas
                                        September 9, 1999, Opinion Delivered
                                                      NO. 98-0744

Reporter
3 S.W.3d 515; 1999 Tex. LEXIS 105; 42 Tex. Sup. J. 1175

TEXAS     COMMERCE       BANK,    NATIONAL                     bank, which resulted in losses to petitioner bank. The
ASSOCIATION, N/K/A CHASE BANK OF TEXAS,                        scheme involved deposits of insufficient funds checks
NATIONAL ASSOCIATION, PETITIONER v. ROBIN                      from the two banks to make it appear that each account
NEW D/B/A RIVER CITY AUTO SALES AND WILLIAM                    had more on deposit than was actually the case. The
PACHECO D/B/A PACHECO MOTOR CAR SALES,                         other bank discovered the scheme and stopped
RESPONDENTS                                                    payment on its checks, resulting in debits and overdrafts
                                                               being charged by petitioner. Petitioner sued for fraud,
Subsequent History: [**1] As Amended September 9,              breach of contract, conspiracy, and civil theft. When
1999.                                                          respondents failed to answer, default judgment was
                                                               entered and damages and attorneys' fees were awarded
Prior History: ON PETITION FOR REVIEW FROM                     on the basis of affidavits submitted by petitioner. The
THE COURT OF APPEALS FOR THE THIRD                             judgment was upheld on appeal, but the damages and
DISTRICT OF TEXAS.                                             fees award was reversed. Petitioner sought review. In
                                                               affirming with respect to the default judgment, but
Disposition: Reversed the judgment on the issue of             reversing with respect to the damages and fees issue,
damages and attorney's fees, and remanded to the trial         the court ruled that Tex. R. Civ. P. 243 and 802 did not
court for entry of judgment for Texas Commerce Bank            bar use of affidavits as evidence of unliquidated
consistent with this opinion.                                  damages. Because unobjected-to hearsay constituted
                                                               probative evidence, affidavits satisfied the requirement
Core Terms                                                     of rule 243 that there be evidence of unliquidated
                                                               damages.

attorney's fees, legally sufficient, court of appeals,
                                                               Outcome
hearsay, unliquidated damages, default judgment,
                                                               The judgment was affirmed with respect to the issue of
damages, trial court, deposit, checks
                                                               liability under the default judgment, but reversed on the
                                                               damages and fees issue, because respondents failed
Case Summary                                                   to answer the complaint and because affidavits could
                                                               constitute probative evidence for purposes of an
Procedural Posture                                             unliquidated damages hearing.
Petitioner bank sought review of the judgment of the
Court of Appeals for the Third District of Texas that          LexisNexis® Headnotes
affirmed the default judgment entered by the trial court,
but reversed the award of unliquidated damages and               Civil Procedure > Judgments > Pretrial Judgments >
attorneys' fees based solely on affidavits submitted by          General Overview
petitioner, in an action claiming fraud, breach of contract,
                                                                 Civil Procedure > ... > Pretrial Judgments > Default &
conspiracy, and civil theft by respondent car salesmen.
                                                                 Default Judgments > Default Judgments

Overview                                                         Contracts Law > ... > Types of Damages > Compensatory
                                                                 Damages > General Overview
Respondent salesmen were partners in a series of
cyclical transactions involving petitioner and another           Torts > Remedies > Damages > General Overview
                                   3 S.W.3d 515, *515; 1999 Tex. LEXIS 105, **1



HN1 See Tex. R. Civ. P. 243.                                 Locke Liddell & Sapp, Austin, TX. Ms. Barbara M. Ellis,
                                                             Austin, TX. Ms. Susan P. Kravik, Chase Bank of Texas,
    Evidence > ... > Statements as Evidence > Hearsay >      National Association, Dallas, TX.
    General Overview
                                                             For RESPONDENT: Mr. William B. Gammon, Austin,
HN2 See Tex. R. Civ. P. 802.
                                                             TX.
    Civil Procedure > Judgments > Pretrial Judgments >
    General Overview                                         Opinion
    Civil Procedure > ... > Pretrial Judgments > Default &
    Default Judgments > General Overview                     [*515] Per Curiam

    Civil Procedure > ... > Pretrial Judgments > Default &   Texas Commerce Bank obtained a default judgment
    Default Judgments > Default Judgments                    against Robin New, d/b/a River City Auto Sales, and
    Contracts Law > ... > Types of Damages > Compensatory    William Pacheco, d/b/a Pacheco's Motor Car Sales. To
    Damages > General Overview                               support its motion for default judgment, Texas
                                                             Commerce presented three affidavits. No oral testimony
    Torts > Remedies > Damages > General Overview
                                                             was taken at the default judgment hearing. On appeal,
HN3 Nothing in Tex. R. Civ. P. 802 limits its application    the court of appeals held that the affidavits, constituting
to contested hearings. The rule is not ambiguous and         hearsay, were not evidence under Rule 243 of the
requires no explication. Because unobjected to hearsay       Texas Rules of Civil Procedure, which requires that the
constitutes probative evidence, it satisfies the             trial court "hear evidence" on unliquidated [*516]
requirement of Tex. R. Civ. P. 243 that there be evidence    damages. 1 The court of appeals further held that even
of unliquidated damages. Thus, a trial court does not err    if affidavits constitute [**2] evidence under Rule 243,
when it considers affidavits in rendering a default          these affidavits were not legally sufficient to support the
judgment.                                                    trial court's judgment. Accordingly, the court of appeals
                                                             affirmed on the issue of New and Pacheco's liability and
    Civil Procedure > Judgments > Pretrial Judgments >       reversed and remanded for a new trial on the issue of
    General Overview                                         unliquidated damages and attorney's fees. 2
    Civil Procedure > ... > Pretrial Judgments > Default &   We conclude that because unobjected-to hearsay is, as
    Default Judgments > General Overview                     a matter of law, probative evidence, affidavits can be
    Civil Procedure > ... > Pretrial Judgments > Default &   evidence for purposes of an unliquidated-damages
    Default Judgments > Default Judgments                    hearing pursuant to Rule 243. We further conclude that
                                                             the affidavits here are legally sufficient to support the
    Contracts Law > ... > Types of Damages > Compensatory
                                                             trial court's judgment on both damages and attorney's
    Damages > General Overview
                                                             fees. Consequently, we affirm the court of appeals'
HN4 Testimony of the total amount due under a written        judgment on the issue of liability, reverse on the issue of
instrument is legally sufficient to support an award of      unliquidated damages and attorney's fees, and render
that amount in a default judgment proceeding.                judgment for Texas Commerce Bank.
                                                             At the outset, Texas Commerce contends that New and
    Civil Procedure > Remedies > Costs & Attorney Fees >     Pacheco did not preserve for the court of appeals'
    General Overview
                                                             consideration the issues of whether [**3] the affidavits
HN5 An uncontested affidavit that establishes a prima        constituted evidence of unliquidated damages under
facie case for attorney's fees is legally sufficient to      Rule 243 or whether the affidavits, if evidence, were
support an attorney's fees award.                            legally sufficient. We assume without deciding that these
                                                             issues were properly preserved.
Counsel: For PETITIONER: Mr. C.W. "Rocky" Rhodes,            In addressing the merits, the court of appeals correctly
Locke Liddell & Sapp, Austin, TX. Mr. G. Alan Waldrop,       stated:

1
    TEX. R. CIV. P. 243.
2
    971 S.W.2d 711.
                                                                                                            Page 2 of 4
                                     3 S.W.3d 515, *516; 1999 Tex. LEXIS 105, **5



It is well settled that once a default judgment is taken        damages and attorney's fees. This the trial court
against a non-answering defendant on an unliquidated            granted. And the court of appeals reversed in part.
claim, all allegations of fact set forth in the petition are
deemed admitted, except the amount of damages.                   [**5] The first issue is whether affidavits constitute
[citations omitted] 3                                           evidence as required by Rule 243. That rule provides:

                                                                HN1 If the cause of action is unliquidated or be not
Therefore, we know that New and Pacheco were                    proved by an instrument in writing, the court shall hear
partners in a check-kiting scheme that resulted in a loss       evidence as to damages and shall render judgment
to Texas Commerce. New would deposit checks into his            therefor, unless the defendant shall demand and be
Texas Commerce account drawn against insufficient               entitled to a trial by jury in [*517] which case the
funds in Pacheco's Norwest Bank checking account.               judgment by default shall be noted, a writ of inquiry
Before the normal banking deadlines for return of items         awarded, and the cause entered on the jury docket. 5
drawn on insufficient funds ran, New would write checks
on the Texas Commerce account for deposit in                    Although several courts of appeals have held that
Pacheco's Norwest account to cover the overdraft                affidavits can constitute evidence of unliquidated
created [**4] in the Norwest account by the previous            damages, 6 the court of appeals here held that they
day's checks. Then Pacheco would write additional               cannot. It concluded that Rule 802 of the Texas Rules of
checks from the Norwest account for deposit to the              Evidence, the hearsay rule, prevents the use of affidavits
Texas Commerce account to cover the overdraft that              "because the application of Rule 802 anticipates
would appear in New's Texas Commerce account. This              opposing counsel's and/or an opposing party's presence
scheme had the effect of keeping a group of checks              at the hearing to object to such inadmissible hearsay." 7
"floating" in the banking system that were not supported        It further concluded, therefore, that a trial court does not
by real deposits. Norwest discovered this scheme and            hold "an evidentiary [**6] hearing merely by accepting
stopped payment on all checks drawn from Pacheco's              the affidavits attached to [the] motion." 8
Norwest account. As a result, several items New
deposited in his Texas Commerce account were                    The court of appeals is incorrect. HN2 Rule 802 says,
returned. Texas Commerce charged these items as                 "Inadmissible hearsay admitted without objection shall
debits on New's account, resulting in an overdraft that         not be denied probative value merely because it is
neither New nor Pacheco covered.                                hearsay." 9 HN3 Nothing in rule 802 limits its application
                                                                to contested hearings. The rule is not ambiguous and
Texas Commerce filed suit against New and Pacheco               requires no explication. Consequently we will give it
for various causes of action, including fraud, breach of        none. [**7] 10 Because unobjected to hearsay
contract, conspiracy to defraud, and violations of the          constitutes probative evidence, it satisfies the
civil theft statute. 4 When New and Pacheco did not             requirement of Rule 243 that there be evidence of
answer, Texas Commerce filed a motion for default               unliquidated damages. The trial court did not err when it
judgment asking among other relief to be awarded                considered the affidavits in rendering its default

3
     971 S.W.2d at 713.
4
     See TEX. CIV. PRAC. & REM. CODE §§ 134.001-.005.
5
     TEX. R. CIV. P. 243 (emphasis added).
6
   See, e.g., Irlbeck v. John Deere Co., 714 S.W.2d 54, 57-58 (Tex. App.--Amarillo 1986, writ ref'd n.r.e.); K-Mart Apparel
Fashions Corp. v. Ramsey, 695 S.W.2d 243, 247 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Naficy v. Braker, 642
S.W.2d 282, 285 (Tex. App. --Houston [14th Dist.] 1982, writ ref'd n.r.e.); Angelo v. Champion Restaurant Equip. Co., 702
S.W.2d 209, 211 (Tex. App.--Houston [1st Dist.] 1985), rev'd on other grounds, 713 S.W.2d 96 (Tex. 1986).
7
     971 S.W.2d at 714.
8
     Id.
9
   TEX. CIV. R. EVID. 802; see also Irlbeck, 714 S.W.2d at 57-58 (concluding that Rule 802 provides for hearsay admitted
without objection to support a default judgment for damages and attorney's fees).
10
      See Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994).
                                                                                                                Page 3 of 4
                                      3 S.W.3d 515, *517; 1999 Tex. LEXIS 105, **7



judgment.                                                         counsel G. Alan Waldrop, was legally sufficient to
                                                                  support the trial court's attorney's fees award. Waldrop
The court of appeals also concluded that the affidavits
                                                                  testified that among other things, Texas Commerce had
here were conclusory and, therefore, not legally
sufficient to support the trial court's award for                 a contract with New entitling Texas Commerce to
unliquidated damages and attorney's fees. 11 Texas                recover its reasonable attorneys' fee. He further testified
Commerce presented three affidavits at the default                that he is a duly licensed attorney, that he was familiar
judgment hearing. Two of the affidavits were from Texas           with the usual and customary attorney's fees in Travis
Commerce vice presidents, Thomas Neville and Richard              County, [*518] and, based on his knowledge of the
Bott. Neville explained the details of the check-kiting           services rendered to Texas Commerce on this matter,
scheme and that, as a [**8] result, the Texas Commerce            which he detailed, $ 30,000 was a reasonable fee for
account had a considerable overdraft balance. Bott                prosecuting Texas Commerce's claims. This was legally
stated that he had reviewed pertinent bank records and            sufficient to support the trial court's judgment for
that the Texas Commerce account was overdrawn in                  attorney's fees. 13
the amount of $ 729,510.96.
                                                                   [**10] Accordingly, pursuant to Rule 59.1 of the Texas
HN4 Testimony of the total amount due under a written
                                                                  Rules of Appellate Procedure, the Court grants the
instrument is legally sufficient to support an award of
                                                                  petition for review of Texas Commerce Bank and,
that amount in a default judgment proceeding. 12 Texas
                                                                  without hearing oral argument, affirms the court of
Commerce's bank officers' affidavits aver personal
                                                                  appeals' judgment on liability, reverses the judgment on
knowledge of the facts, describe the scheme resulting
                                                                  the issue of damages and attorney's fees, and remands
in the bank's loss, and identify the total amount owed on
the overdrawn Texas Commerce account. The affidavits              to the trial court for entry of judgment for Texas
are legally sufficient to support the trial court's damage        Commerce Bank consistent with this opinion.
award.
                                                                  Opinion delivered: September 9, 1999
[**9] The third affidavit, from Texas Commerce legal




11
     971 S.W.2d at 714-15.
12
    See Irlbeck, 714 S.W.2d at 57-59. See also, e.g., 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex. App.--Houston
[14th Dist.] 1986, writ ref'd n.r.e.); American 10-Minute Oil Change, Inc. v. Metropolitan Nat'l Bank-Farmers Branch, 783 S.W.2d
598, 601 (Tex. App.--Dallas 1989, no writ).
13
    See, e.g., Cap Rock Elec. Coop. v. Texas Utils. Elec. Co., 874 S.W.2d 92, 101-02 (Tex. App.--El Paso 1994, no writ)
(uncontested HN5 affidavit establishing prima facie case for attorney's fees legally sufficient to support attorney's fees award);
Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex. App.--Dallas 1990, no writ).
                                                                                                                     Page 4 of 4
                                                                                                                  Page 1




Caution
As of: Mar 30, 2015

                 JOHN VERBURGT, INDIVIDUALLY AND A/N/F OF THOMAS VERBURGT,
                TIMOTHY VERBURGT AND JOSEPH VERBURGT, PETITIONERS v. PATRI-
                CIA M. DORNER AND THE METHODIST MISSION HOME, RESPONDENTS

                                                      No. 96-1026

                                           SUPREME COURT OF TEXAS

                             959 S.W.2d 615; 1997 Tex. LEXIS 124; 41 Tex. Sup. J. 138

                                               April 24, 1997, Argued
                                             December 4, 1997, Delivered

PRIOR HISTORY:      [**1] ON APPLICATION                     permits parties to file a motion to extend. We therefore
FOR WRIT OF ERROR TO THE COURT OF AP-                        reverse the judgment of the court of appeals and remand
PEALS FOR THE NINTH DISTRICT OF TEXAS.                       to that court.

DISPOSITION:          Reversed and remanded.                        1     The Texas Rules of Appellate Procedure
                                                                    were renumbered and substantially revised on
                                                                    September 1, 1997. See 60 TEX. B.J. 876 (1997).
JUDGES: JUSTICE SPECTOR delivered the opinion of                    All references to the Rules of Appellate Proce-
the Court, in which CHIEF JUSTICE PHILLIPS, JUS-                    dure in this opinion are to the rules in effect be-
TICE GONZALEZ, JUSTICE HECHT, AND JUSTICE                           fore that date.
OWEN join. JUSTICE ENOCH, joined by JUSTICE
                                                                    [**2] Verburgt, in his individual capacity and as
ABBOTT AND JUSTICE HANKINSON, filed a dis-
                                                             his children's next friend, sued Constance Clear, Patricia
senting opinion. JUSTICE BAKER filed a dissenting
                                                             Dorner, and the Methodist Mission Home for intentional
opinion.
                                                             infliction of emotional distress and negligent interference
                                                             with familial relationships. After Verburgt nonsuited
OPINION BY: ROSE SPECTOR
                                                             Clear, the trial court granted summary judgment for the
                                                             remaining defendants. The judgment was signed on Oc-
OPINION
                                                             tober 10, 1995. Because no motion for new trial was
      [*615] In this case, we decide whether the court of    filed, Verburgt's cost bond was due within thirty days, by
appeals erred in dismissing an appeal for want of juris-     November 9th. See TEX. R. APP. P. 41(a)(1). 2 Verburgt
diction. The appellant, John Verburgt, filed a cost bond     did not file the [*616] bond until November 13th, nor
on the thirty-fourth day after the trial court rendered      did he file a motion to extend the time to file the bond
judgment against him. Verburgt mistakenly believed that      within fifteen days of the bond's due date. See TEX. R.
he had timely complied with Rule 41(a)(1) of the Rules       APP. P. 41(a)(2). 3
of Appellate Procedure in filing the bond and did not
concurrently move to extend the time to file under Rule             2    Rule 41(a)(1) provides:
41(a)(2). 1 We hold that a motion for extension of time is
implied when a party, acting good faith, files a cost bond                     When security for costs on ap-
within the fifteen-day period in which Rule 41(a)(2)                        peal is required, the bond or affi-
                                                                                                                   Page 2
                                       959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **;
                                                   41 Tex. Sup. J. 138

                davit in lieu thereof shall be filed                 condone a result that allows a litigant who
                with the clerk within thirty days                    knows he is late with his bond to save his
                after the judgment is signed, or,                    appeal, but rejects the appeal of the liti-
                within ninety days after the judg-                   gant who erroneously, but in good faith,
                ment is signed if a timely motion                    believes he has timely filed his bond and,
                for new trial has been filed by any                  thus satisfied, also believes he has no
                party or if any party has timely                     need to file for an extension of time.
                filed a request for findings of fact
                and conclusions of law in a case
                tried without a jury. If a deposit of         Id. Although it acknowledged the arbitrariness of dis-
                cash is made in lieu of bond, the             missal under these circumstances, the court of appeals
                same shall be made within the                 nevertheless believed that the interest in finality of
                same period.                                  judgments outweighed the policy of disposing of appeals
                                                              on their merits. Id. at 656.
                                                                   In dismissing Verburgt's appeal, the appellate court
 [**3]
                                                              also relied largely upon a decision by the Court of Crim-
         3   Rule 41(a)(2) provides:
                                                              inal Appeals, Olivo v. State, 918 S.W.2d 519 (Tex. Crim.
                                                              App. 1996). But the Court of Criminal Appeals itself
                    An extension of time may be
                                                              recognized in Olivo that its approach to the perfection of
                granted by the appellate court for
                                                              appeals in criminal cases has differed significantly from
                late filing of a cost bond or notice
                                                              our more liberal approach. See Olivo, 918 S.W.2d at
                of appeal or making the deposit
                                                              524-525; [**5] compare Jones v. State, 796 S.W.2d
                required by paragraph (a)(1) or for
                                                              183, 186-87 (Tex. Crim. App. 1990) (holding that Rule
                filing the affidavit, if such bond or
                                                              83 of the Texas Rules of Appellate Procedure did not
                notice of appeal is filed, deposit is
                                                              entitle appellant who filed defective notice of appeal to
                made, or affidavit is filed not later
                                                              amend notice beyond the time allowed by Rule 41(a)(2)
                than fifteen days after the last day
                                                              when the appellant had not requested an extension of
                allowed and, within the same pe-
                                                              time under Rule 41(b)(2)) with Grand Prairie Indep. Sch.
                riod, a motion is filed in the ap-
                                                              Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499,
                pellate court reasonably explaining
                                                              500 (Tex. 1991) (holding that an appellate court may not
                the need for such extension. If a
                                                              dismiss an appeal when the appellant filed the wrong
                contest to an affidavit in lieu of
                                                              instrument required to perfect the appeal without giving
                bond is sustained, the time for fil-
                                                              the appellant an opportunity to correct the error).
                ing the bond is extended until ten
                days after the contest is sustained                This Court has never wavered from the principle that
                unless the trial court finds and re-          appellate courts should not dismiss an appeal for a pro-
                cites that the affidavit is not filed         cedural defect whenever any arguable interpretation of
                in good faith.                                the Rules of Appellate Procedure would preserve the
                                                              appeal. We have repeatedly held that a court of appeals
                                                              has jurisdiction over any appeal in which the appellant
                                                              files an instrument in a bona fide attempt to invoke the
      Several weeks later, the court of appeals ordered
                                                              appellate court's jurisdiction. Linwood v. NCNB Texas,
Verburgt to show cause why it should not dismiss his
                                                              885 S.W.2d 102, 103 (Tex. 1994); Grand Prairie Indep.
appeal for lack of jurisdiction. Verburgt's response
                                                              Sch. Dist., 813 S.W.2d at 500. Our decisions reflect [**6]
demonstrated that his counsel had simply miscalculated
                                                              the policy embodied in our appellate rules that disfavors
the date the bond was due. See Verburgt v. Dorner, 928
                                                              disposing of appeals based upon harmless procedural
S.W.2d 654, 655 (Tex. 1996). Initially, the court of ap-
                                                              defects. 4 See Grand Prairie Indep. Sch. Dist., 813
peals decided to retain jurisdiction of Verburgt's appeal.
                                                              S.W.2d at 500. Thus, we have instructed the courts of
But [**4] on rehearing en banc, the court reversed it-
                                                              appeals to construe the Rules of Appellate Procedure
self.
                                                              reasonably, yet liberally, so that the [*617] right to
     The court of appeals in this case recognized the "pa-    appeal is not lost by imposing requirements not abso-
tent unfairness" of the result it reached:                    lutely necessary to effect the purpose of a rule. See
                                                              Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993);
           We are, therefore, confronted with the             see also Crown Life Ins. Co. v. Estate of Gonzalez, 820
         question of whether the appellate rules              S.W.2d 121, 121-22 (Tex. 1991); Gay v. City of Hillsbo-
                                                                                                                    Page 3
                                       959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **;
                                                   41 Tex. Sup. J. 138

ro, 545 S.W.2d 765, 766 (Tex. 1977). As the dissenting                  Rules of Civil Procedure. Id. at 801. It presents
justice in the court of appeals pointed out, the result the             no inconsistency with this case. Glidden Com-
court of appeals reached was not "absolutely necessary"                 pany v. Aetna Casualty & Surety Company, 155
under these facts. Verburgt, 928 S.W.2d at 657 (Dun-                    Tex. 591, 291 S.W.2d 315, 317 (Tex. 1956), was a
can, J., dissenting) ("The issue is not whether the rules               1956 case in which the Court held that the court
condone a patently unfair result but whether they require               of appeals should have dismissed an appeal in
it.") (emphasis in original). Here, the court of appeals                which the appellant filed its bond one day late. At
acknowledged that Verburgt demonstrated that he had                     the time we decided Glidden, the rules allowed
made a bona fide attempt to timely perfect an appeal. See               for no extension of time to file a cost bond, re-
Verburgt, 928 S.W.2d at 655.                                            gardless of good cause. See Glidden, 291 S.W.2d
                                                                        at 318 ("It is well settled, that the requirement
        4 Under Rule 46(f), on motion to dismiss an                     that the bond be filed within thirty days is man-
        appeal for a defect in form or substance in any                 datory and jurisdictional, and that the time pre-
        bond, "the appellate court may allow the filing of              scribed cannot be dispensed with or enlarged by
        a new bond or the making of a new deposit in the                the court for any reason."). We disapprove of
        trial court on such terms as the appellate court                Miller v. Miller, 848 S.W.2d 344 (Tex.
        may prescribe." Rule 83 provides that "[a] judg-                App.--Texarkana 1993, no writ), El Paso
        ment shall not be affirmed or reversed or an ap-                Sharky's Billiard Parlor, Inc. v. Amparan, 831
        peal dismissed for defects or irregularities, in ap-            S.W.2d 3 (Tex. App.--El Paso 1992, writ denied),
        pellate procedure, either of form or substance,                 and any other authorities in which the court of
        without allowing a reasonable time to correct or                appeals has dismissed an appeal when the appel-
        amend such defects or irregularities . . . ."                   lant has made a bona fide attempt to invoke the
                                                                        appellate court's jurisdiction by filing a bond
      [**7] We hold that a motion for extension of time
                                                                        within the fifteen days of the date the bond was
is necessarily implied when an appellant acting in good
                                                                        due.
faith files a bond beyond the time allowed by Rule
41(a)(1), but within the fifteen-day period in which the              [**9] Rose Spector
appellant would be entitled to move to extend the filing
                                                                     Justice
deadline under Rule 41(a)(2). Our holding does not in-
definitely extend the time in which parties may perfect              OPINION DELIVERED: December 4, 1997
an appeal, as Justice Enoch implies. Instead, once the
period for granting a motion for extension of time under         DISSENT BY: Craig T. Enoch James A. Baker
Rule 41(a)(2) has passed, a party can no longer invoke
the appellate court's jurisdiction. It also does not alter the   DISSENT
time for perfecting an appeal beyond the period author-
                                                                    JUSTICE ENOCH, joined by JUSTICE ABBOTT
ized by Rule 41(a). Nor does our holding undermine fi-
                                                                 AND JUSTICE HANKINSON, dissenting.
nality of judgments, as the court of appeals believed. See
928 S.W.2d at 656. Parties who prevail in the trial court             From today forward, one need no longer timely ap-
will still know within the time specified in Rule 41(a)(2)       peal to invoke an appellate court's jurisdiction. But just
whether their opponents will seek to perfect an appeal.          two months ago, this Court retained the longstanding rule
We decline to elevate form over substance, as the dis-           that only a timely filed appeal invokes appellate jurisdic-
senters would.                                                   tion. 1 We insisted that to perfect appeal in a civil case,
                                                                 the notice of appeal must be filed within the time pre-
     Accordingly, we reverse the judgment of the court
                                                                 scribed in the rules. See TEX. R. APP. P. 26.1. Further,
of appeals and remand to that court to allow it to deter-
mine whether Verburgt offered a reasonable explanation           we insisted that to extend the time in which to file the
for his failure to timely [**8] file his bond. See TEX. R.       notice of appeal, one must file not only the notice of ap-
                                                                 peal, but in addition "a motion" that "must state: . .
APP. 41(a)(2). 5
                                                                 .[among other things] the facts relied on to reasonably
                                                                 explain the need for an extension." TEX. R. APP. P. 26.3,
        5 The Texas Supreme Court cases cited by the
                                                                 10.5(b)(1)(C).
        dissenters are distinguishable from this case. In
        Davies v. Massey, 561 S.W.2d 799, 800 (Tex.                   Like our new rules, the plain language of the rule
        1978), the appellant mailed his cost bond a day          that applies to this case, Rule 41(a)(2), mandates that the
        before it was due, but the bond was received             appeal be timely; consequently, it compels the result the
        eight days late. We held that the appellant timely       court of appeals reached in this [*618] case. Is this a
        perfected his appeal under Rule 5 of the Texas           bad result? For the hopeful appellant, [**10] perhaps
                                                                                                                     Page 4
                                      959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **;
                                                  41 Tex. Sup. J. 138

(assuming that the appeal is, in fact, meritorious). But         Verburgt, 928 S.W.2d at 656 (explaining two decisions
denuding the Court's rules to achieve the Court's chosen        on which the Court relies today: Linwood v. NCNB Tex-
result is bad law. I dissent.                                   as, 885 S.W.2d 102, 103 (Tex. 1994) and Grand Prairie
                                                                Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813
       1 In addition, we specifically stated that while         S.W.2d 499, 500 (Tex. 1991)); see also Olivo v. State,
       other appellate rules may be suspended from time         918 S.W.2d 519, 524 (Tex. Crim. App. 1996) (correctly
       to time for good cause, "an appellate court may . .      noting that the "liberal policy" espoused by this Court in
       . not . . . alter the time for perfecting an appeal in   Linwood and Grand Prairie "concerns the substitution of
       a civil case." TEX. R. APP. P. 2 (emphasis add-          a correct instrument for an incorrect instrument, which
       ed).                                                     has been timely filed").
     Rule 41(a)(2) permits a party who fails to timely               I agree with the majority that "appellate courts
appeal to seek an extension of time. But to do so, the          should not dismiss an appeal for a procedural defect
party has to file, within fifteen days of the original due      whenever any arguable interpretation of the Rules of
date, both the cost bond and a motion for extension of          Appellate Procedure would preserve the appeal ." Ver-
time reasonably explaining the need for the extension.          burgt v. Dorner, 959 S.W.2d 615, 616 (1997) (emphasis
The majority's holding, that an "implicit motion" is filed      added)(citing Linwood and Grand Prairie). 2 But surely
if a would-be appellant files late and files only a cost        that interpretation must be [**13] arguable. Interpret-
bond, Verburgt v. Dorner, 959 S.W.2d 615 (1997),                ing Rule 41(a)(2) in contradiction to its plain language is
simply ignores the rule's requirement that both instru-         not arguable; indeed, it is remarkably harmful to the
ments must be filed. Moreover, Rule 41(a)(2) gives the          concept of justice.
court of appeals discretion whether to allow [**11] an
extension of time, but this discretion is triggered only by            2 In fact, the thrust of our new rules is to elim-
the filing of a motion reasonably explaining the need for              inate the procedural traps often encountered un-
the extension. In the absence of a motion, the court of                der our former rules. See Nathan L. Hecht & E.
appeals' discretion is never invoked and the late-filed                Lee Parsley, Procedural Reform: Whence and
cost bond has no effect. Here, Verburgt did not file a                 Whither, in MATTHEW BENDER C.L.E.,
motion to extend time, and he did not file the cost bond               PRACTICING LAW UNDER THE NEW
timely. He simply did not do what Rule 41(a)(2) clearly                RULES OF TRIAL AND APPELLATE PRO-
requires.                                                              CEDURE 1-12 (Nov. 1997) (explaining that the
                                                                       1997 revisions to the rules of appellate procedure
     The Court does not cite a single case holding that the
                                                                       "are meant to take the traps out of TRAP"). In its
untimely filing of an appeal can still be a bona fide at-
                                                                       understandable zeal to get rid of "traps," howev-
tempt to invoke the court of appeals' jurisdiction. To the
                                                                       er, the majority unfortunately has lost sight of the
contrary, we have consistently and routinely held that the
                                                                       significant concept of timeliness as a prerequisite
appeal must be filed timely. See Davies v. Massey, 561
                                                                       to proper invocation of the court of appeals' juris-
S.W.2d 799, 801 (Tex. 1978) ("Filing a cost bond . . . is a
                                                                       diction. As indicated above, even the new rules of
necessary and jurisdictional step in perfecting an ap-
                                                                       appellate procedure require, as they must, that a
peal."); Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex.
                                                                       party must be timely to invoke the court of ap-
591, 291 S.W.2d 315, 318 (Tex. 1956) ("It is well settled
                                                                       peals' jurisdiction.
. . . that the requirement that the bond be filed within
thirty days is mandatory and jurisdictional."). Indeed, the          Under any number of circumstances, time plays a
court of appeals' decision in this case is predicated on        critical [**14] role in justice. For example, statutes of
this crucial point:                                             limitation and repose exist to ensure that claims are made
                                                                in a timely fashion. See, e.g., Trinity River Auth. v.
          While the supreme court has liberally                 URS Consultants, Inc., 889 S.W.2d 259, 263 (Tex. 1994)
       construed the rules regarding [**12] the                 ("We start with the unassailable premise that statutes of
       instruments necessary to confer jurisdic-                limitation, in general, serve a public function. They
       tion, we do not discern a retreat in that                compel the exercise of a right of action within a reasona-
       court from the fundamental requirement                   ble time so that the opposing party has a fair opportunity
       that in order to invoke the jurisdiction of              to defend while witnesses [*619] are available and the
       the court of appeals, some instrument,                   evidence is fresh in their minds.'") (quoting Robinson v.
       whether or not it is the correct instrument,             Weaver, 550 S.W.2d 18, 20 (Tex. 1977)). Timely exercise
       must be timely filed.                                    of one's appellate rights is no less significant to predicta-
                                                                bility, and consequently, to justice. Failure to timely file
                                                                an appeal has always been a jurisdictional error that pre-
                                                                                                                Page 5
                                     959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **;
                                                 41 Tex. Sup. J. 138

cludes an appellate court from reaching the merits. See              State Bank, 958 S.W.2d 380 (Tex. 1997); Holmes
Davies, 561 S.W.2d at 801; Glidden, 291 S.W.2d at 318.               v. Home State County Ins., 958 S.W.2d 381 (Tex.
It rightfully should remain so.                                      1997); Boyd v. American Indem. Co., 958 S.W.2d
                                                                     379 (Tex. 1997) (Justice Hankinson, who joins
     The majority's flawed reasoning is also apparent
                                                                     me in this dissent, is not sitting in Boyd, and
from the cases it cites. In Linwood and Grand Prairie,
                                                                     therefore joins this footnote only as it relates to
we held that a party's bona fide attempt to invoke the
                                                                     Harlan and Holmes).
appellate court's jurisdiction will preserve its appeal.
What is [**15] clearly apparent in these opinions is that         Craig T. Enoch,
the procedural defect, which rendered the party's effort at
                                                                  Justice
appeal only a bona fide attempt, was correctable. Con-
comitantly, the hopeful appellant had the obligation to          OPINION DELIVERED: December 4, 1997 JUS-
correct this defect. But how would one correct untimeli-      TICE BAKER, dissenting.
ness? One can't. Neither of these cases remotely signals a
                                                                   The court of appeals reached the decision required
retreat from the principle that a party must timely appeal
                                                              by applying the plain and unambiguous language of Rule
to invoke the court's jurisdiction.
                                                              41(a)(2). See TEX. R. [**17] APP. P. 41(a)(1) and
     The majority responds to my criticism by claiming        (2); Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978);
that its decision "does not indefinitely extend the time in   Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. 591, 291
which parties may perfect an appeal" because parties          S.W.2d 315, 318 (Tex. 1956); see also Miller v. Miller,
supposedly "will still know within the time specified in      848 S.W.2d 344, 345 (Tex. App.--Texarkana 1993, no
Rule 41(a)(2) whether their opponents will seek to per-       writ); El Paso Sharky's Billiard Parlor, Inc. v. Amparan,
fect an appeal." ___ S.W.2d at ___. My colleagues             831 S.W.2d 3, 5 (Tex. App.--El Paso 1992, writ denied).
demonstrate that they do not understand what they do.
The "indefiniteness" has nothing to do with not knowing            The Court's opinion dispenses with Rule 41(a)(2)'s
                                                              requirements, and amends the rule by judicial fiat. The
whether an appeal will be filed within thirty days or for-
                                                              Court's opinion is contrary to its own precedent. See
ty-five days. It has everything to do with not knowing
                                                              State Dept. of Highways v. Payne, 838 S.W.2d 235, 241
when the Court will simply "imply" a condition that
never occurred to reach the result it prefers. When next      (Tex. 1992)( "We do not revise our rules by opinion.");
will the Court "imply" filings that were never made? If       Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex
                                                              1992)(same). I would deny the writ 1 . Because the Court
the clear language of its own rules does not constrain the
                                                              decides otherwise, I dissent.
[**16] Court, then what will? If this is not "indefinite,"
then perhaps I do not understand the meaning of the
                                                                     1 I also dissent to Verburgt's companion cases.
word.
                                                                     See Boyd v. American Indem. Co., 958 S.W.2d
     Finally, the majority mistakenly believes that ignor-           379 (Tex. 1997); Harlan v. Howe State Bank, 958
ing its own rules somehow enhances "fairness." Playing               S.W.2d 380 (Tex. 1997); Holmes v. Home State
by the rules is fair. Changing the rules to produce a par-           County Ins., 958 S.W.2d 381 (Tex. 1997).
ticular result is not.
                                                                   [**18] James A. Baker,
    The judgment of the court of appeals should be af-
                                                                  Justice
firmed. I dissent. 3
                                                                  OPINION DELIVERED: December 4, 1997
       3   Like Justice Baker, I also dissent to Ver-
       burgt's companion cases. See Harlan v. Howe
|   | Positive
As of: April 7, 2015 6:05 PM EDT


                                             Whitaker v. Rose
                             Court of Appeals of Texas, Fourteenth District, Houston
                    February 6, 2007, Judgment Rendered ; February 6, 2007, Opinion Filed
                                                NO. 14-04-01178-CV

Reporter
218 S.W.3d 216; 2007 Tex. App. LEXIS 842

MARCUS DUNTE WHITAKER, Appellant v. LOIS                     distinguish between reversible and non-reversible
ROSE, JOHN ROSE, JR., and JOHN ROSE, III,                    damages. The appellate court found that because the
Appellees                                                    family members provided the trial court with affidavits in
                                                             support of their damages, the lack of a reporter's record
Prior History: [**1] On Appeal from the County Court         did not constitute error. However, because the doctors'
at Law No. 1. Harris County, Texas. Trial Court Cause        reports submitted by the family members were
No. 805,739.                                                 statements of facts about the medical care they
                                                             received, but were not under oath, they did not satisfy
Disposition: Affirmed in Part and Reversed and               the affidavit requirement of Tex. Civ. Prac. & Rem. Code
Remanded in Part.                                            Ann. § 18.001 (1997). And because the trial court did
                                                             not specify the damage elements it was awarding in its
Core Terms                                                   judgment, and the record did not provide any means for
                                                             distinguishing the amounts awarded for each element
                                                             of damage, the appellate court could not determine
damages, default judgment, trial court, elements of
                                                             whether the trial court awarded damages based on the
damages, mental anguish, unliquidated damages,
                                                             elements as to which there was no evidence. Thus, all
medical care, no evidence, no-answer, amounts,
                                                             of the damage awards had to be reversed.
awarding damages, pet, pain and suffering, medical
expenses, new trial, causal nexus, total damage, lost        Outcome
wages, default, pain
                                                             The trial court's judgment as to liability was affirmed. All
                                                             of the damage awards were reversed and remanded for
Case Summary                                                 a new trial on the issue of damages.

Procedural Posture                                           LexisNexis® Headnotes
Appellant family members sued appellee driver for
injuries sustained in an automobile accident. The driver       Civil Procedure > ... > Pretrial Judgments > Default &
was properly served but failed to answer. The County           Default Judgments > Relief From Default
Court at Law No. 1 of Harris County, Texas, granted the
                                                             HN1 A restricted appeal constitutes a direct attack on a
family's motion for default judgment, and entered the
                                                             default judgment. Tex. R. App. P. 30. A restricted appeal
default judgment based upon documentary evidence
                                                             must: (1) be brought within six months after the trial
supplied by the family regarding their damages. The
                                                             court signs the judgment; (2) by a party to the suit; (3)
driver filed a restricted appeal.
                                                             who did not participate in the actual trial; and (4) the
                                                             error complained of must be apparent from the face of
Overview
                                                             the record.
In his restricted appeal, the driver alleged three grounds
for setting aside the default judgment and granting a          Civil Procedure > ... > Pretrial Judgments > Default &
new trial: (1) no reporter's record was made at the            Default Judgments > Relief From Default
default judgment hearing; (2) the family members failed        Civil Procedure > Appeals > Standards of Review > General
to prove their damages; and (3) the judgment failed to         Overview
                                218 S.W.3d 216, *216; 2007 Tex. App. LEXIS 842, **1



HN2 Because a restricted appeal affords an appellant           damages, however, the trial court must hear evidence
the same scope of review as an ordinary appeal, the            as to damages, but affidavits will satisfy the evidence
legal and factual sufficiency of the evidence to support       requirement of Tex. R. Civ. P. 243.
the judgment may be challenged.
                                                                 Civil Procedure > ... > Pretrial Judgments > Default &
  Civil Procedure > ... > Default & Default Judgments >          Default Judgments > Relief From Default
  Default Judgments > Entry of Default Judgments
                                                                 Civil Procedure > Remedies > Damages > General
  Civil Procedure > Remedies > Damages > General                 Overview
  Overview
                                                                 Civil Procedure > Appeals > Standards of Review > General
                                                                 Overview
HN3 When a no-answer default judgment is entered,
the non-answering party is deemed to have admitted all         HN6 The legal and factual sufficiency of the evidence to
facts properly pleaded. However, this presumption does         support an award of unliquidated damages may be
not apply to unliquidated damages. A plaintiff alleging        challenged on appeal from a no-answer default
unliquidated damages must present competent                    judgment. Where a specific attack is made upon the
evidence that is consistent with the cause of action           sufficiency of the evidence to support the trial court's
pled. Tex. R. Civ. P. 243.                                     determination of damages in a default judgment, the
                                                               appellate court must review the evidence produced.
  Civil Procedure > ... > Pretrial Judgments > Default &
  Default Judgments > Relief From Default                        Civil Procedure > Appeals > Standards of Review > General
  Civil Procedure > Remedies > Damages > General                 Overview
  Overview
                                                               HN7 The appellate court will sustain a legal sufficiency
HN4 One area where no-answer and post-answer                   or "no evidence" challenge if the record shows one of
default judgments differ greatly is what is considered         the following: (1) a complete absence of a vital fact; (2)
admitted because of the default. In a post-answer              rules of law or evidence bar the court from giving weight
default judgment, the defendant has filed an answer            to the only evidence offered to prove a vital fact; (3) the
with the trial court, and the defendant does not abandon       evidence offered to prove a vital fact is no more than a
that answer or confess any issues because the                  scintilla; or (4) the evidence establishes conclusively
defendant fails to pursue the remainder of the trial. The      the opposite of the vital fact. The appellate court
plaintiff must offer evidence and prove the entire case,       considers the evidence in the light most favorable to the
including liability and damages. Thus, the lack of a           verdict and indulges every reasonable inference that
reporter's record in a post-answer default judgment            supports it. The evidence is legally sufficient if it would
requires reversal. Such is not the case in a no-answer         enable reasonable and fair-minded people to reach the
default judgment.                                              verdict under review. The appellate court credits
                                                               favorable evidence if reasonable jurors could, and
  Civil Procedure > ... > Default & Default Judgments >        disregards contrary evidence unless reasonable jurors
  Default Judgments > Entry of Default Judgments               could not. In reviewing a factual sufficiency challenge,
                                                               the appellate court examines all the evidence. The
  Civil Procedure > Remedies > Damages > General
                                                               appellate court will reverse only if the finding is against
  Overview
                                                               the great weight and preponderance of the evidence.
HN5 In a no-answer default context, judgment can be
                                                                 Civil Procedure > ... > Pretrial Judgments > Default &
entered on the pleadings alone, and all facts properly
                                                                 Default Judgments > Default Judgments
pled are deemed admitted. While the plaintiffs must
produce evidence of damages before a trial court may             Torts > ... > Compensatory Damages > Types of Losses >
order a default judgment, those damages need not be               Medical Expenses
presented with testimony. A trial court may award                Torts > Remedies > Damages > Proof
damages in a no-answer default judgment case based
on affidavits. For liquidated damages, a trial court can       HN8 A claim for past medical expenses must be
render a default judgment if it can verify the damages by      supported by evidence that such expenses were
referring to the allegations in the petition and the written   reasonable and necessary as a result of the injury. A
instruments. Tex. R. Civ. P. 241. For unliquidated             default judgment does not relieve a plaintiff of this
                                                                                                         Page 2 of 7
                              218 S.W.3d 216, *216; 2007 Tex. App. LEXIS 842, **1



burden. A plaintiff can prove reasonableness and            remand in part.
necessity of past medical expenses through: (1) expert
testimony on the issues of reasonableness and               FACTUAL AND PROCEDURAL BACKGROUND
necessity; or (2) an affidavit prepared and filed in
compliance with Tex. Civ. Prac. & Rem. Code Ann. §          On February 20, 2003, Lois Rose ("Lois") drove her car
18.001 (1997).                                              with her son, John Rose, III ("John, III"), as a passenger.
                                                            As she entered an intersection, her car was struck by
  Torts > Remedies > Damages > Proof                        Marcus Dunte Whitaker's vehicle. Whitaker's vehicle hit
                                                            the Roses' vehicle on the driver's side after running a
HN9 See Tex. Civ. Prac. & Rem. Code Ann. § 18.001
                                                            stop sign. Later that evening, Lois and John, III
(1997).
                                                            experienced pain and needed medical attention. The
                                                            next day, Lois's husband, John Rose, Jr. ("John, Jr.")
  Civil Procedure > Trials > Evidence & Testimony >
  Depositions                                               took his wife and son to a family clinic where they were
                                                            examined. The doctor prescribed physical therapy and
  Evidence > Types of Evidence > Documentary Evidence >
                                                            pain medication for both Lois and John, III. Lois [**2]
  General Overview
                                                            was unable to drive and did not return to work for 30
HN10 An affidavit is a statement of facts sworn to as the   days. John, Jr. sought and received time off from work
truth before an officer authorized to administer oaths.     for approximately two and a half weeks in order to take
Tex. Gov't Code Ann. § 312.011(1) (2005).                   care of his wife and son at home.

  Civil Procedure > ... > Pretrial Judgments > Default &    The Roses filed their original petition against Whitaker
  Default Judgments > Relief From Default                   on November 20, 2003. Whitaker was properly served
                                                            but failed to answer. The Roses moved for default
  Civil Procedure > Remedies > Damages > General
  Overview
                                                            judgment, and the trial court granted their motion. The
                                                            trial court set a date to hear evidence of damages, but
HN11 If a default judgment makes a single damage            instead, it entered the default judgment based upon
award based on more than one damage element, and if         documentary evidence supplied by the Roses: Lois's
there is no evidence to support the award as to one of      affidavit and supporting documents, including her lost
the elements upon which the award is based, then the        wages report and medical records for herself and John,
appellate court must reverse and remand as to the           III; and John, Jr.'s affidavit and supporting documents,
entire award, even though one of the other elements         including his lost wages report. The trial court entered
might be sufficient to support the award.                   the default judgment in the precise amounts requested
                                                            by the Roses in their affidavits. Whitaker did not file any
Counsel: For APPELLANTS: Jason Andrew Powers,               post-judgment motions, but he did file a restricted appeal
Houston, TX.                                                one day prior to the six-month filing deadline.

For APPELLEES: Melvin L. Lampley, Houston, TX.              DISCUSSION

Judges: Panel consists of Justices Anderson, Edelman,       In his restricted appeal, Whitaker alleges three grounds
and Frost.                                                  for setting aside the default judgment and granting a
                                                            new trial: (1) no reporter's record was made at the [**3]
Opinion by: John S. Anderson                                default judgment hearing; (2) appellees failed to prove
                                                            their damages; and (3) the judgment fails to distinguish
                                                            between reversible and non-reversible damages.
Opinion
                                                            I. Standard of Review
[*219] This is a restricted appeal from a no-answer
default judgment. Appellees, Lois Rose, John Rose, Jr.,     HN1 A restricted appeal constitutes a direct attack on a
and John Rose, III ("the Roses"), sued appellant,           default judgment. TEX. R. APP. P. 30; Gen. Elec. Co. v.
Marcus Dunte Whitaker ("Whitaker"), for damages             Falcon Ridge Apartments Joint Venture, 811 S.W.2d
resulting from a car accident. Whitaker raises three        942, 943 (Tex. 1991). A restricted appeal must (1) be
issues on appeal. We affirm in part and reverse and         brought within six months after the trial court signs the
                                                                                                         Page 3 of 7
                                 218 S.W.3d 216, *219; 2007 Tex. App. LEXIS 842, **3



judgment, (2) by a party to the suit, (3) who did not             In re K.B.A., 145 S.W.3d 685, 690 (Tex. App.--Fort
participate in the actual trial, and (4) the error                Worth 2004, no pet.). The plaintiff must offer evidence
complained of must be apparent from the face of the               and prove the entire case, including liability and
record. See TEX. R. APP. P. 30; Norman Commc'ns v.                damages. See Stoner, 578 S.W.2d at 682; Armstrong v.
Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).                Benavides, 180 S.W.3d 359, 362 (Tex. App.--Dallas
Both parties agree Whitaker has met the first three               2005, no pet.). Thus, the lack of a reporter's record in a
elements. Therefore, this appeal considers whether the            post-answer default judgment requires reversal. Carstar
issues raised by Whitaker are apparent on the face                Collision, Inc. v. Mercury Finance Co., 23 S.W.3d 368,
 [*220] of the record. The face of the record includes all        370 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).
papers on file in the appeal. Norman Commc'ns, 955                Such is not the case in a no-answer default judgment.
S.W.2d at 270. HN2 Because a restricted appeal affords
an appellant the same scope of review as an ordinary              HN5 In a no-answer default context, judgment can be
appeal, [**4] the legal and factual sufficiency of the            entered on the pleadings [**6] alone, and all facts
evidence to support the judgment may be challenged.               properly pled are deemed admitted. Morgan, 675
                                                                  S.W.2d at 732. While plaintiffs must produce evidence
HN3 When a no-answer default judgment is entered,                 of damages before a trial court may order a default
the non-answering party is deemed to have admitted all            judgment, those damages need not be presented with
facts properly pleaded. Morgan v. Compugraphic Corp.,             testimony. A trial court may award damages in a
675 S.W.2d 729, 732 (Tex. 1984); Jackson v. Gutierrez,            no-answer default judgment case based on affidavits.
77 S.W.3d 898, 901 (Tex. App.--Houston [14th Dist.]               Tex. Commerce Bank, 3 S.W.3d at 517; Naficy v. Braker,
2002, no pet.). However, this presumption does not                642 S.W.2d 282, 285 (Tex. App.--Houston [14th Dist.]
apply to unliquidated damages. Tex. Commerce Bank,                1982, writ ref'd n.r.e.). For liquidated damages, a trial
N.A. v. New, 3 S.W.3d 515, 516 (Tex. 1999); Novosad v.            court can render a default judgment if it can verify the
Cunningham, 38 S.W.3d 767, 773 (Tex. App.--Houston                damages by referring to the allegations in the petition
[14th Dist.] 2001, no pet.). A plaintiff alleging unliquidated    and the written instruments. TEX. R. CIV. P. 241; BLS
damages must present competent evidence that is                   Limousine Servs, Inc. v. Buslease, Inc., 680 S.W.2d
consistent with the cause of action pled. TEX. R. CIV. P.         543, 547 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). For
243; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,          unliquidated damages, however, the trial court must
83 (Tex. 1992).                                                   hear evidence as to damages, but affidavits will satisfy
                                                                  the evidence requirement of Texas Rule of Civil
II. No Reporter's Record                                          Procedure 243. See TEX. R. CIV. P. 243; Tex.
In his first issue, Whitaker contends he is entitled to a         Commerce Bank, 3 S.W.3d at 516-17. Because the
new trial because the Roses failed to ensure a reporter's         Roses provided the [**7] trial court with affidavits in
record was produced from a default judgment hearing.              support of their damages, the lack of a reporter's record
Whitaker argues a reporter's record is required for a             in an appeal from a no-answer default judgment does
no-answer default [**5] judgment, as it is required for a          [*221] not constitute error on the face of the record. We
post-answer default judgment. This contention is                  overrule Whitaker's first issue.
incorrect.
                                                                  Damages Awards
HN4 One area where no-answer and post-answer                      In Whitaker's second issue, he attacks several aspects
default judgments differ greatly is what is considered            of the Roses' damage award. He first contends the
admitted because of the default. In a post-answer                 Roses did not prove liability 1 and causation. He next
default judgment, the defendant has filed an answer               contends the evidence of the Roses' damages is legally
with the trial court, and the defendant does not abandon          and factually insufficient. In his third issue, Whitaker
that answer or confess any issues because the                     asserts he is entitled to a new trial because the judgment
defendant fails to pursue the remainder of the trial. See         of the trial court fails to distinguish between reversible
Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979);              and non-reversible damages.

1
    Whitaker may not challenge liability here because, in a default context, the causal nexus between the conduct of the
defendant and the event sued upon is admitted by default. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984).
However, the causal nexus between the event sued upon and the plaintiff's alleged injuries is not admitted by default, and "proof
of this causal nexus is necessary to ascertain the amount of damages to which the plaintiff is entitled." Id.
                                                                                                                    Page 4 of 7
                                218 S.W.3d 216, *221; 2007 Tex. App. LEXIS 842, **8


[**8] A. Evidence of Damages                                        (8) lost earnings which, in all reasonable
                                                                    probability, will be suffered in the future,
HN6 The legal and factual sufficiency of the evidence to
support an award of unliquidated damages may be                     (9) past loss of consortium,
challenged on appeal from a no-answer default                       (10) [**10] past loss of household services,
judgment. Argyle Mech., Inc. v. Unigus Steel, Inc., 156
S.W.3d 685, 687 (Tex. App.--Dallas 2005, no pet.).                  (11) past mental anguish, and
Where a specific attack is made upon the sufficiency of              [*222] (12) future mental anguish.
the evidence to support the trial court's determination of
damages in a default judgment, the appellate court              Except for items (7) - (10) above, John, III asserted the
must review the evidence produced. Dawson v. Briggs,            same elements of damages as Lois. John, Jr. sought
107 S.W.3d 739, 751 (Tex. App.--Houston [1st Dist.]             only to recover the following damages:
2003, no pet.).
                                                                    (1) past lost earnings,
HN7 We will sustain a legal sufficiency or "no evidence"
                                                                    (2) past loss of consortium,
challenge if the record shows one of the following: (1) a
complete absence of a vital fact; (2) rules of law or               (3) reasonable and necessary medical care in
evidence bar the court from giving weight to the only               the past, and
evidence offered to prove a vital fact; (3) the evidence            (4) reasonable and necessary medical care in
offered to prove a vital fact is no more than a scintilla; or       the future.
(4) the evidence establishes conclusively the opposite
of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802,    Though properly served with process, Whitaker did not
810 (Tex. 2005). We consider the evidence in the light          answer the Roses' suit. The Roses moved for default
most favorable to the verdict and indulge every                 judgment, and the trial court granted their motion. The
reasonable inference [**9] that supports it. Id. at 821-22.     trial court did not hold an evidentiary hearing regarding
The evidence is legally sufficient if it would enable           unliquidated damages, but instead, it rendered the
reasonable and fair-minded people to reach the verdict          default judgment based upon documentary evidence
under review. Id. at 827. We credit favorable evidence if       supplied by the Roses. In Lois's affidavit, she testified
reasonable jurors could, and disregard contrary                 that she had suffered the following alleged damages:
evidence unless reasonable jurors could not. See id. In         (1) past medical expenses totaling $ 2,994.65, (2) pain
reviewing a factual sufficiency challenge, we examine           and suffering, mental anguish, and emotional distress
all the evidence. Castanon v. Monsevais, 703 S.W.2d             in the amount of $ 6,000, and (3) lost wages in the
295, 297 (Tex. App.--San Antonio 1985, no writ). We will        amount of $ 2,653.84. Even though the total of these
reverse only if the finding is against the great weight and     amounts exceeds $ 11,000, Lois also testified in her
preponderance of the evidence. Id.                              affidavit as follows: "My total damages when combined
                                                                with inconvenience [**11] is $ 9,000."
In the Roses' petition, Lois sought to recover the
following damages:                                              Lois also testified in her affidavit as to the following
                                                                alleged damages for John, III: (1) past medical expenses
    (1) reasonable and necessary medical care in                totaling $ 2,043.65 and (2) John, III's pain and suffering,
    the past,                                                   mental anguish, and emotional distress in the amount
    (2) reasonable and necessary medical care in                of $ 4,000. Lois further testified that John, III "was
    the future,                                                 inconvenienced because he was unable to carry on the
                                                                usual and normal activities of a 14 year old student."
    (3) past physical pain and suffering,                       Even though the total of the damages for John, III
    (4) future physical pain and suffering,                     mentioned by Lois is $ 6,043.65, Lois stated in her
                                                                affidavit that "[John, III's] total damages when combined
    (5) past physical impairment,                               with inconvenience is $ 6,500."
    (6) physical impairment which, in all reasonable
                                                                In his affidavit, John, Jr. stated that he suffered lost
    probability, will be suffered in the future,
                                                                wages of $ 1,429.60 and that his "total damages when
    (7) past lost earnings,                                     combined with inconvenience is $ 4,500."
                                                                                                             Page 5 of 7
                                 218 S.W.3d 216, *222; 2007 Tex. App. LEXIS 842, **11



The trial court rendered the default judgment in the                  necessary is sufficient evidence to support a
precise amounts of "total damages" requested by Lois                  finding of fact by judge or jury that the amount
and John, Jr. in their affidavits--$ 9,000 for Lois, $ 6,500          charged was reasonable or that the service
for John, III, and $ 4,500 for John, Jr. The trial court did          was necessary.
not specify the elements of damages upon which it
based these awards, and the record does not provide                   (c) The affidavit must: (1) be taken before an
any means for determining the elements of damages                     officer with authority to administer oaths; (2) be
upon which the trial court relied. The affidavits provide             made by: (A) the person who provided the
no basis for [**12] distinguishing the elements of                    service; or (B) the person in charge of records
damages awarded by the trial court because, as noted                  showing the service provided and charge made;
above, the "total damages" requested by each of the                   and (3) include an itemized statement of the
Roses does not equal the sum of the amounts requested                 service and the charge.
for specific elements of damages in the affidavits. 2
                                                                 TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b)-(c)
Therefore, neither the trial court's judgment, nor the
                                                                 [**14] (Vernon 1997).
affidavits of Lois and John, Jr. provide any means of
distinguishing the amounts awarded by the trial court            The documentary evidence accompanying Lois's
for specific elements of damages. Whitaker also                  affidavit includes medical records, doctors' reports, pain
contends the Roses' evidence of medical expenses                 assessment reports, and an itemized statement of
does [*223] not comply with the affidavit requirement of         services rendered and charges incurred. The doctors'
section 18.001 of the Texas Civil Practices and                  reports consist of one report from an osteopathic
Remedies Code, and in the absence of comporting                  physician and a second report [**15] from a radiologist.
affidavits, they are required to use expert testimony to
prove their medical expenses were reasonable and                 This evidence does not satisfy the requirements set
necessary. Whitaker is correct. HN8 A claim for past             forth by section 18.001 because neither of these reports
medical expenses must be supported by evidence that              are affidavits. HN10 An affidavit is a statement of facts
such expenses were reasonable and necessary as a                 sworn to as the truth before an officer authorized to
result of the injury. See Texarkana Mem'l Hosp., Inc. v.         administer oaths. See TEX. GOV'T CODE ANN. §
Murdock, 946 S.W.2d 836, 840 (Tex. 1997). A default              312.011(1) (Vernon 2005). These doctors' reports are
judgment does not relieve a plaintiff of this burden.            statements of facts about the medical care provided to
Jackson, 77 S.W.3d at 902-03. A plaintiff can prove              Lois and John III, but they were not under oath, and
reasonableness [**13] and necessity of past medical              therefore, they do not satisfy the affidavit requirement of
expenses through (1) expert testimony on the issues of           section 18.001. See, e.g., TEX. CIV. PRAC. & REM.
reasonableness and necessity or (2) an affidavit                 CODE ANN. § 18.002(a)-(b) (Vernon 1997) (example
prepared and filed in compliance with section 18.001 of          forms of affidavits for doctor or custodian of records
the Texas Civil Practice and Remedies Code. Texarkana            evidencing the basic requirements of section 18.001).
Mem'l Hosp., Inc., 946 S.W.2d at 840. Because the                Accordingly, we find that there is legally insufficient
Roses only offered documentary evidence, they must               evidence to support an award for reasonable and
meet the requirements of section 18.001. Section                 necessary medical care in the past as to Lois and John,
18.001 provides:                                                 III.

    HN9 (b) Unless a controverting affidavit is filed            Likewise, there is no evidence of the following elements
    as provided by this section, an affidavit that the           of damage for which Lois and John, III sought recovery:
    amount a person charged for a service was
    reasonable at the time and place that the                         (1) reasonable and necessary medical care in
    service was provided and that the service was                     the future,

2
    For example, Lois's affidavit alleges she suffered damages in the following amounts: $ 2,994.65 in medical expenses; $
2,653.84 in lost wages; and $ 6,000.00 in pain and suffering, mental anguish, and emotional distress. Therefore, the sum of the
amounts requested by Lois for specific elements of damages is $ 11,648.49. However, in her affidavit, Lois also alleges that her
"total damages when combined with inconvenience is $ 9,000.00." The discrepancy between these amounts, coupled with the
fact that the trial court awarded a lump sum of $ 9,000.00 to Lois, makes it impossible for us to determine, based upon evidence
in the affidavits, the amount awarded by the trial court for any single element of damages.
                                                                                                                   Page 6 of 7
                                 218 S.W.3d 216, *223; 2007 Tex. App. LEXIS 842, **15



    (2) past physical impairment,                                 the evidence of mental anguish was held legally
                                                                  insufficient, and the record did not provide "any means"
    (3) physical impairment which, in all reasonable
                                                                  of distinguishing the amount awarded for mental anguish
     [**16]       probability, will be suffered in the
                                                                  from that awarded for pain and suffering. Id. Therefore,
    future,
                                                                  the Jackson court concluded that "even if an award for
    (4) past mental anguish, and                                  pain and suffering was supported by the evidence, the
                                                                  precise amount of damages could not be determined.
    (5) future mental anguish.
                                                                  We therefore must also reverse the pain and suffering
Furthermore, there is no evidence as to the following             award." Id.
elements of damage for which Lois sought recovery:
                                                                   [**18] In the instant case, as in Jackson, there is no
     [*224] (1) lost earnings which, in all reasonable            evidence of at least one possible damage element as to
    probability, will be suffered in the future,                  each of the three lump-sum awards. Further, because
                                                                  the trial court did not specify the damage elements it
    (2) past loss of consortium, and                              was awarding in its judgment, and the record does not
    (3) past loss of household services.                          provide any means for distinguishing the amounts
                                                                  awarded for each element of damage, we cannot
In addition, there is no evidence as to the following             determine whether the trial court awarded damages
elements of damage for which John, Jr. sought recovery:           based on the elements as to which there is no evidence.
                                                                  Therefore, this court must reverse all of the damage
    (1) past loss of consortium,                                  awards and remand the claims for a new trial on
                                                                  unliquidated damages. See id.; see also Holt Atherton,
    (2) reasonable and necessary medical care in                  835 S.W.2d at 86 (holding that when appellate court
    the past, and
                                                                  sustains no evidence point after an uncontested hearing
    (3) reasonable and necessary medical care in                  on unliquidated damages following no answer default
    the future.                                                   judgment, appropriate disposition is to remand for trial
                                                                  on issue of unliquidated damages). Because there is no
B. Separability of Damages                                        evidence of the Roses' damages, we do not reach the
                                                                  issue of causal nexus. See Morgan, 675 S.W.2d at 732
In his third issue, Whitaker asserts he is entitled to a          ("The causal nexus between the event sued upon and
new trial because the judgment fails to distinguish               the plaintiff's injuries must be shown by competent
between reversible and non-reversible damages. In                 evidence."). Accordingly, we sustain appellant's third
support of his argument, Whitaker cites Rule 44.1(b) of           issue [**19] and reverse all of the damage awards and
the Texas Rules of Appellate Procedure and this court's           remand the [*225] claims for a new trial on unliquidated
decision in Jackson v. Gutierrez, 77 S.W.3d 898, 903-04           damages and causal nexus.
(Tex. App.--Houston [14th Dist.] 2002, no pet.).
                                                                  CONCLUSION
In Jackson, this court held that HN11 if a default
judgment makes a single damage [**17] award based                 We affirm the trial court's judgment as to liability. We
on more than one damage element and if there is no                reverse all of the damage awards and remand for a new
evidence to support the award as to one of the elements           trial on the issue of damages.
upon which the award is based, then this court must
reverse and remand as to the entire award, even though            /s/ John S. Anderson
one of the other elements might be sufficient to support          Justice
the award. 3 See id. (citing TEX. R. APP. P. 44.1(b)). In
Jackson, the trial court awarded a single amount for              Judgment rendered and Opinion filed February 6, 2007.
mental anguish and pain and suffering. Id. On appeal,

3
   Our holding in Jackson is based on the same principles applied by the Texas Supreme Court in Crown Life Ins. Co. v.
Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (holding the trial court erred in submitting a jury charge which mixed valid and invalid
theories of liability in a single broad-form submission, and that such error was harmful because it prevented the appellate court
from determining whether the jury based its verdict on an invalid theory of liability).
                                                                                                                    Page 7 of 7
                                                                                                               Page 1




Positive
As of: Mar 30, 2015

                        Lydia Williams, Appellant v. Jackie Williams and K. W., Appellees

                                               NO. 03-02-00723-CV

                         COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

                                     150 S.W.3d 436; 2004 Tex. App. LEXIS 89


                                               January 8, 2004, Filed

SUBSEQUENT HISTORY:                [**1]
                                                                   [*441] Appellee Jackie Williams 1 filed a petition
Petition for review denied by Williams v. Williams, 2004
                                                            to terminate the parent-child relationship between appel-
Tex. LEXIS 803 (Tex., Sept. 10, 2004)
                                                            lant Lydia Williams and her daughter, K.W. When Lydia
Motion for rehearing on petition for review denied by
                                                            failed to answer, the trial court granted a default judg-
Williams v. Williams, 2004 Tex. LEXIS 1033 (Tex., Oct.
                                                            ment, terminating Lydia's parental rights. Lydia timely
29, 2004)
                                                            filed a motion for new trial, which the trial court over-
                                                            ruled. She now appeals. We hold that although the cita-
PRIOR HISTORY:       FROM THE COUNTY
                                                            tion with which Lydia was served failed to include the
COURT AT LAW OF BASTROP COUNTY. NO.
                                                            name of the petitioner, Jackie Williams, the record re-
02-7380, HONORABLE BENTON ESKEW, JUDGE
                                                            flects that Lydia was properly served. We further hold
PRESIDING.
                                                            that the evidence is legally insufficient to support the
                                                            trial court's judgment terminating Lydia's parental rights.
DISPOSITION:          Reversed and remanded.
                                                            We therefore reverse the trial court's judgment. In the
                                                            interest of justice, however, we remand the cause to the
                                                            trial court for further proceedings.
COUNSEL: Ms. Pamela E. George-[appellant], Hou-
ston, TX.
                                                                   1     Jackie Williams, maternal grandmother of
                                                                   K.W., is the only appellee who filed a brief with
Mr. J. Paul Standefer-[ad litem-K.W.], Bastrop, TX.
                                                                   this Court.
Mr. Chris D. Cillon-[Jackie Williams], Bastrop, TX.              [**2] BACKGROUND
                                                                  These facts are compiled from the parties' briefs,
Mr. William H. Jenkins-[Jackie Williams], Bastrop, TX.
                                                            their trial court pleadings, and the evidence from the mo-
JUDGES: Before Chief Justice Law, Justices B. A.            tion for new trial hearing. This factual summary is in-
Smith and Puryear.                                          cluded [*442] to provide a background for the discus-
                                                            sion in this opinion but should not be construed as a con-
                                                            clusive finding of any fact for subsequent proceedings.
OPINION BY: David Puryear
                                                                 Lydia Williams is the natural mother of K.W., the
OPINION                                                     child who is the subject of this appeal. Jackie is Lydia's
                                                            mother and the child's grandmother. By an agreed order
                                                            dated March 23, 2001, Jackie Williams was appointed
                                                                                                                     Page 2
                                    150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


sole managing conservator of K.W., and Lydia was ap-           peals the trial court's judgment, challenging the suffi-
pointed possessory conservator. 2                              ciency of the evidence, contending the trial court erred in
                                                               overruling her motion for new trial, and claiming [**5]
       2     The record does not reveal what circum-           the citation with which she was served was defective.
       stances precipitated the rendition of the agreed
       order. It appears, however, that Child Protective       DISCUSSION
       Services (CPS) was involved, as the order dis-
       misses CPS from the suit.                               Introduction
     On June 6, 2002, Jackie filed a petition to terminate          The natural right that exists between parents and
Lydia's parental rights to K.W., alleging (1) that Lydia       their children is of constitutional [*443] dimensions.
engaged in conduct or knowingly placed her [**3] child         Stanley v. Illinois, 405 U.S. 645, 652, 31 L. Ed. 2d 551,
with persons who engaged in conduct that endangers the         92 S. Ct. 1208 (1972); Holick v. Smith, 685 S.W.2d 18,
physical or emotional well being of the child, (2) that she    20, 28 Tex. Sup. Ct. J. 230 (Tex. 1985). The United
failed to support the child in accordance with her ability     States Supreme Court has characterized the right to raise
during the period of one year ending within six months         one's child as fundamental--a basic civil right far more
of the date of the filing of the petition, and (3) that ter-   precious than property rights. Stanley v. Illinois, 405 U.S.
mination was in K.W.'s best interest. The petition also        at 651. Because the involuntary termination of parental
sought the termination of K.W.'s father's parental rights.     rights is complete, final, and irrevocable, termination
Jackie requested in her petition that Thomas and Iris          proceedings must be strictly scrutinized. Holick, 685
Cummins, prospective adoptive parents, be named                S.W.2d at 20.
K.W.'s managing conservators.
                                                                   Service of Citation
     Lydia failed to file an answer in response to the peti-
                                                                     By her first issue, Lydia claims that the citation
tion. Consequently, the trial court held a default judg-
                                                               upon which the default judgment was based is defective,
ment hearing on August 2, 2002 and signed an order
                                                               and thus, the judgment is void. She argues that (1) the
terminating Lydia's parental rights on August 13. On
                                                               citation failed to include the name of the petitioner,
August 23, Lydia filed a pro se answer, and on Septem-
                                                               Jackie, and (2) it was not directed to a sheriff or consta-
ber 12, she filed a motion for new trial. The trial court
                                                               ble.
held a hearing on the motion for new trial, during which
both Lydia and Jackie testified.                                    Service of citation must be in strict compliance with
                                                               the rules of civil procedure to establish jurisdiction over
      According to Lydia's testimony, she and Jackie
                                                               a defendant and support [**6] a default judgment. Wil-
maintained a strained relationship, although they saw
                                                               son v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60
each other regularly when Lydia visited her daughter,
                                                               (Tex. 1990); Uvalde Country Club v. Martin Linen Sup-
K.W., and they spoke frequently. When Lydia was
                                                               ply Co., 690 S.W.2d 884, 885, 28 Tex. Sup. Ct. J. 423
served with the petition to terminate her [**4] parental
                                                               (Tex. 1985); Barker CATV Constr., Inc. v. Ampro, Inc.,
rights, she spoke to her mother, and based on their con-
                                                               989 S.W.2d 789, 792 (Tex. App.--Houston [1st Dist.]
versation, assumed that her mother was not pursuing the
                                                               1999, no pet.). If strict compliance is not shown, the ser-
petition. Later, Lydia learned from her brother that her
                                                               vice of process is invalid and of no effect. Uvalde Coun-
mother hired a new attorney and was indeed pressing
                                                               try Club, 690 S.W.2d at 885. We make no presumptions
forward with the termination. Lydia claims that she sub-
                                                               of valid issuance, service, or return of citation when ex-
sequently contacted a legal hotline and was told that she
                                                               amining a default judgment. Id.
would be served anew because her mother had hired a
different attorney. Based on this advice, Lydia failed to          To be valid, a citation must comply with twelve re-
file an answer to the petition. Although Lydia spoke to        quirements. The citation must
her mother before the August 2 termination hearing,
Jackie never informed Lydia of the hearing date. Thus,             (1) be styled "The State of Texas,"
Lydia did not learn of the termination of her parental             (2) be signed by the clerk under seal of court,
rights until after the trial court rendered its judgment.
She then hired a lawyer and filed her motion for new               (3) contain name and location of the court,
trial. As for her meritorious defense, Lydia alleged that          (4) show date of filing of the petition,
the allegations in Jackie's petition were untrue and insuf-
ficient evidence exists to support them.                           (5) show date of issuance of citation,

    Following the presentation of evidence, the trial              (6) show file number,
court overruled the motion for new trial. Lydia now ap-            (7) show names of parties,
                                                                                                                 Page 3
                                       150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


        (8) be directed to the defendant,                       of defendant's name in citation did not invalidate ser-
                                                                vice); Payne & Keller Co., 732 S.W.2d at 41 (judgment
        (9) show the name and address of attorney for plain-
                                                                upheld where petition and citation reflected registered
tiff,
                                                                agent as "Philippe Petitfrere," and return reflected
    (10) contain the time within which these rules re-          "Philipee Petitfreere"). On the other hand, there was no
quire the defendant to file a written answer with the clerk     confusion about whether the correct party was actually
who issued citation,                                            served. Compare Higginbotham v. General Life & Acci-
                                                                dent Ins. Co., 796 S.W.2d 695, 696-97, 34 Tex. Sup. Ct.
        (11) contain address [**7] of the clerk, and
                                                                J. 16 (Tex. 1990) (although return did not recite method
    (12) notify the defendant that in case of failure of        of service as required, record demonstrated strict com-
defendant to file an answer, judgment by default may be         pliance with valid method of service), Dezso v. Har-
rendered for the relief demanded in the petition.               wood, 926 S.W.2d 371, 374 (Tex. App.--Austin 1996, writ
                                                                denied) (upholding default judgment even though wrong
        Tex. R. Civ. P. 99(b).                                  person was sued because record clearly showed proper
     In this case, the citation fails to include Jackie's       defendant received service and knew she was intended
name but complies with rule 99 in all other respects.           defendant), and Cockrell, 737 S.W.2d at 140 (although
Instead of naming the parties, the citation includes the        defendant's name was misspelled in citation and return,
style of the case, which is "In the Interest of: [K.W.]."       default judgment not void where defendant did not claim
See Tex. Fam. Code Ann. § 102.008(a) (West 2002)                lack of service and was clearly not [**10] misled by
(suit affecting parent child relationship must be styled,       spelling error), with Uvalde Country Club, 690 S.W.2d at
"In the interest of ________, a child"). It also correctly      885 (holding that where return showed Henry Bunting
identifies Lydia and includes the name and address of           was served and petition alleged Henry Bunting, Jr. was
Jackie's attorney. Jackie is named as the petitioner in the     proper registered agent of defendant, record did not show
original petition to terminate the parent-child relation-       that correct person was served), Hercules Concrete
ship, which was attached to the citation. Lydia does not        Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contract-
claim on appeal that she was not properly identified on         ing Corp., 62 S.W.3d 308, 311 (Tex. App.--Houston [1st
the citation. Nor does she claim that she was not served.       Dist.] 2001, pet. denied) (where return reflected service
Indeed, she filed an answer with the trial court, albeit        on "Hercules Concrete Pumping" instead of "Hercules
after the court rendered judgment. Her complaint is that        Concrete Pumping Service, Inc.," court held return failed
the citation did not include the name of Jackie, who was        to show service on proper defendant), P&H Transp., Inc.
a party to the dispute, and therefore did not strictly [**8]    v. Robinson, 930 S.W.2d 857, 859-60 (Tex.
comply with the rules of civil procedure.                       App.--Houston [1st Dist.] 1996, writ denied) (reversing
                                                                default judgment where evidence did not affirmatively
     We note that strict compliance with the rules does         show that person named in citation was person actually
not require "obeisance [*444] to the minutest detail."          served), and Avila v. Avila, 843 S.W.2d 280, 282 (Tex.
Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d       App.--El Paso 1992, no writ) (reversing default judgment
608, 613 (Tex. App.--Corpus Christi 1996, writ denied);         where record failed to show that person served was per-
Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d         son named in citation). Nor does Lydia claim confusion
866, 871 (Tex. App.--Houston [1st Dist.] 1995, no writ).        regarding who filed the suit.
As long as the record as a whole, including the petition,
citation, and return, shows that the citation was served on          Ultimately, although our jurisprudence requires
the defendant in the suit, service of process will not be       strict adherence [**11] to the rules regarding service of
invalidated. Regalado v. State, 934 S.W.2d 852, 854             citation, it does so to ensure that there is no question
(Tex. App.--Corpus Christi 1996, no writ); Ortiz, 926           about whether the proper party has been served before a
S.W.2d at 613; Payne & Keller Co. v. Word, 732 S.W.2d           default judgment is rendered. Here, however, not only
38, 41 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd        does the return reflect that Lydia was properly served,
n.r.e.).                                                        but Lydia admitted that she was properly served
                                                                throughout her testimony during the motion for new trial
This case presents a unique issue. On one hand, the fail-       hearing. She testified that she was served while she was
ure to include the name of a party, even if it is the name      in jail, that she carefully read all of "the papers" that
of the plaintiff and not the defendant, is not a minute         were served on her in jail, and that she immediately con-
detail. Cf. Ortiz, 926 S.W.2d at 613 (omission of accent        tacted [*445] her father after she was served. Fur-
mark and of corporate designation and substitution of           thermore, when asked how she discovered the names of
symbol " at " for word "at" are defects [**9] that do not       the prospective adoptive parents, she answered that their
invalidate service); Cockrell v. Estevez, 737 S.W.2d 138,       names were in "the papers I was served." Finally, in her
140 (Tex. App.--San Antonio 1987, no writ) (misspelling         affidavit supporting her motion for new trial, Lydia
                                                                                                                      Page 4
                                     150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


averred that she was served while in jail, that her mother      expressly directed to the defendant under rule 99 and
was the petitioner in the petition to terminate Lydia's         may also be addressed to the sheriff or constable under
parental rights, and that she drafted a response to the         rule 15, but failure to include the sheriff or constable on
petition two weeks after she was served, but did not mail       the form of the citation will not render it void. Because
it until after the default judgment was rendered. Not only      the citation in this case was directed to Lydia, the de-
did her testimony make clear that she was properly              fendant, we hold that the citation was not void and over-
served, but she also knew who the petitioner was in this        rule Lydia's first issue.
suit. In [**12] light of the fact that there is no dispute as
to whether Lydia was properly served and that the record        Default Judgments
establishes that she was aware of who filed the suit, we
hold that the trial court did not err in assuming personal       Before we review the sufficiency of the evidence, we
jurisdiction over Lydia. See Higginbotham, 796 S.W.2d           must determine the effect of Lydia's failure to file an
at 697 (evidence from motion for new trial hearing              answer [*446] with the trial court and her failure to
showed strict compliance with valid method of service);         appear at the termination hearing. Traditionally, no evi-
Cockrell, 737 S.W.2d at 140 (where defendant claimed            dence is necessary to support a no-answer default judg-
neither lack of service nor that he was misled by mis-          ment because the defendant's failure to answer is taken as
spelled name, record did not reflect invalid service).          admitting the allegations of the petition. Holt Atherton
                                                                Indus., Inc. v. Heine, 835 S.W.2d 80, 83, 35 Tex. Sup. Ct.
     Lydia also relies on rule of civil procedure 15 in
                                                                J. 881 (Tex. 1992). Indeed, it is well established that a
support of her argument. That rule instructs that "process
                                                                default judgment operates as an admission [**15] of the
shall be directed to any sheriff or any constable within
                                                                material facts alleged in the plaintiff's petition. Id.; Ston-
the State of Texas." Tex. R. Civ. P. 15. Citing Barker
                                                                er v. Thompson, 578 S.W.2d 679, 684, 22 Tex. Sup. Ct. J.
CATV Construction, Inc. v. Ampro, Inc., 989 S.W.2d 789
                                                                258 (Tex. 1979).
(Tex. App.--Houston [1st Dist.] 1999, no pet.), Lydia
argues that rule 15, when coupled with rule 99(b), which             Termination proceedings, however, are special. A
addresses the issuance and form of citation, requires the       court's primary consideration in cases involving parental
citation be addressed to both the defendant and a consta-       rights is always the best interest of the child. See Tex.
ble or sheriff. We disagree.                                    Fam. Code Ann. § 153.002 (West 2002); Wiley v.
                                                                Spratlan, 529 S.W.2d 616, 617-18 (Tex. Civ. App.--Tyler
     Rule 15 instructs that all writs and process shall be
                                                                1975), rev'd on other grounds, 543 S.W.2d 349, 19 Tex.
directed to any sheriff [**13] or constable. Tex. R. Civ.
                                                                Sup. Ct. J. 385 (Tex. 1976). Before determining the best
P. 15. It does not address the form of the citation, how-
                                                                interest of a child, the court should ensure that it is as
ever. Rule 99, on the other hand, specifies what the form
                                                                well-informed as the circumstances allow. Such a deter-
of the citation shall include. It requires the citation be
                                                                mination is rarely well-informed without consideration
directed to the defendant, but says nothing about ex-
                                                                of the evidence and the perspective of the parents. In re
pressly addressing the citation to any sheriff or constable.
                                                                P.M.B., 2 S.W.3d 618, 624-25 (Tex. App.--Houston [14th
Tex. R. Civ. P. 99.
                                                                Dist.] 1999, no pet.). Accordingly, the best interest of the
     In Ampro, the citation was addressed to both the de-       child requires that issues be as fully developed as possi-
fendant and "to any sheriff or constable or authorized          ble, and technical rules of pleading and practice are not
person." Ampro, 989 S.W.2d at 791. The court recited            of controlling importance. Lohmann v. Lohmann, 62
that "failure to direct citation to the defendant as required   S.W.3d 875, 879 (Tex. App.--El Paso 2001, no pet.);
by the rules results in a void citation, ineffective service,   Sexton v. Sexton, 737 S.W.2d 131, 133 [**16] (Tex.
and a void default judgment." Id. at 792. In previous           App.--San Antonio 1987, no writ); Little v. Little, 705
opinions, the court had held that citations that were di-       S.W.2d 153, 154 (Tex. App.--Dallas 1985, writ dism'd
rected to both the defendant and addressed to the sheriff       w.o.j.); Barrow v. Durham, 574 S.W.2d 857, 861 (Tex.
or constable are confusing and do not strictly comply           Civ. App.--Corpus Christi 1978), aff'd, 600 S.W.2d 756,
with the rules. Id. (citing Medeles v. Nunez, 923 S.W.2d        23 Tex. Sup. Ct. J. 361 (Tex. 1980). Pertinent facts that
659 (Tex. App.--Houston [1st Dist.] 1996, writ denied);         may affect the best interest of the child should be heard
Faggett v. Hargrove, 921 S.W.2d 274 (Tex.                       and considered by the trial court regardless of the lack of
App.--Houston [1st Dist.] 1995, no writ)). The court re-        diligence of the parties in their presentation of infor-
considered those prior holdings and in harmonizing rules        mation to the court. C. v. C., 534 S.W.2d 359, 361 (Tex.
15 and 99, determined [**14] that the rules do allow            Civ. App.--Dallas 1976, writ dism'd w.o.j.).
citations to be directed to both the defendant and the
                                                                     Moreover, because terminating the parent-child rela-
sheriff or constable. Id. at 792-93. The court, however,
                                                                tionship is such a drastic measure, termination proceed-
did not hold that the citation must be addressed to both.
                                                                ings include many procedural safeguards not found in
Like the Ampro court, we too hold that citations must be
                                                                                                                  Page 5
                                    150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


other civil trials. For example, termination hearings re-      in the petition, and the court could then terminate the
quire clear and convincing evidence, a heightened bur-         parental rights based solely on the deemed admissions.
den of proof. See Tex. Fam. Code Ann. § 161.001 (West          Cf. id. § 161.001(1)(K); Marywood v. Vela, 17 S.W.3d
2002); In re G.M., 596 S.W.2d 846, 847, 23 Tex. Sup. Ct.       750, 758-59 (Tex. App.--Austin 2000, pet. denied) (hold-
J. 262 (Tex. 1980). They receive precedence over other         ing that petitioner must prove by clear and convincing
civil trials and appeals. Tex. Fam. Code Ann. §§               evidence that affidavit of relinquishment was executed as
105.004, 109.002, 161.202 (West 2002). They allow for          provided in section 161.103 and that termination is in
the appointment [**17] of counsel for the child and            child's best interest). But even voluntary relinquishments
indigent parents. Id. §§ 107.011-.016 (West Supp. 2004).       of parental rights are subject to strict procedural re-
The trial court has only one year, plus one 180-day ex-        quirements. For example, a petitioner must prove by
tension, within which to render a final order or dismiss       clear and convincing evidence that an affidavit of volun-
the suit. Id. § 263.401 (West 2002).                           tary relinquishment of parental rights was executed in
                                                               accordance with section 161.103 of the family code; that
     In summary, the termination of parental rights is un-
                                                               statute requires, among other things, that the affidavit be
like a traditional civil case, involving only two compet-
                                                               witnessed by two credible persons and verified before a
ing interests, the plaintiff's and the defendant's. The
                                                               person authorized to take oaths. Tex. Fam. Code Ann. §
child's interest must also be considered and indeed is of
                                                               161.103(a)(2) [**20] , (3) (West Supp. 2004). Fur-
paramount importance. The traditional no-answer default
                                                               thermore, unless the affidavit expressly states that it is
judgment rule takes into consideration only the actions of
                                                               irrevocable, a parent may revoke a relinquishment in
the defaulting parent; it leaves no room for the trial court
                                                               accordance with specified procedures. Id. §§ 161.103(g),
to consider the child's best interest. Cf. Lowe v. Lowe,
                                                               .1035 (West 2002 & Supp. 2004). And finally, it is
971 S.W.2d 720, 725-27 (Tex. App.--Houston [14th
                                                               well-established that relinquishment affidavits must be
Dist.] 1998, pet. denied) (criticizing the application of
                                                               executed voluntarily and knowingly. Marywood, 17
Craddock to suits affecting parent-child relationship).
                                                               S.W.3d at 759. Indeed, an involuntarily executed affida-
Thus, in light of the special characteristics of termination
                                                               vit is a complete defense to a termination suit or decree
proceedings and the important interests they are designed
                                                               based solely upon a finding under section 161.001(1)(K)
to protect, we hold that the traditional rule--that evidence
                                                               of the family code. Id. These requirements must be ad-
is unnecessary to support a default judgment because the
                                                               hered to before a court may terminate a parent-child rela-
failure to answer is taken as an admission of the allega-
                                                               tionship based solely on an affidavit of relinquishment.
tions in [*447] the petition--does [**18] not apply to
                                                               Yet, if a default judgment is rendered, under the tradi-
involuntary termination of parental rights proceedings.
                                                               tional rule, a parent has in effect relinquished her paren-
     As further support for our holding, we note that a        tal rights, without the procedural protections provided by
petition for the termination of a parent-child relationship    statute and without the opportunity to revoke that relin-
is "sufficient without the necessity of specifying the un-     quishment. Such a rule, in the context of termination of
derlying facts if the petition alleges in the statutory lan-   parental rights, is too harsh given the constitutional di-
guage the ground for the termination and that termination      mension of the rights that are affected in these cases.
is in the best interest of the child." Tex. Fam. Code Ann.
                                                                    Finally, the practical complications of requiring the
§ 161.101 (West 2002). Thus, if we were to apply the
                                                               presentation of evidence before a [**21] no-answer
traditional rule for no-answer default judgments, we
                                                               default judgment can be rendered in termination cases
would be compelled to hold that the allegations in a peti-
                                                               are slight compared to the interests that must be protect-
tion are legally sufficient to support a termination of pa-
                                                               ed. We note that many well-established legal doctrines
rental rights where the respondent has failed to answer,
                                                               include exceptions based on the public policy of the State
even if there were no supporting facts alleged in the peti-
                                                               [*448] when a child's best interest is at issue. In re
tion or developed at trial. Such a conclusion runs afoul of
                                                               K.C., 88 S.W.3d 277, 280 (Tex. App.--San Antonio 2002,
the oft-cited axiom that a court's primary consideration in
                                                               pet. denied) (Hardberger, C. J., dissenting). In addition,
these cases is always the best interest of the child, for it
                                                               requiring the presentation of evidence even though the
cannot be said that the best interest of the child has been
                                                               opposing party has failed to respond is not a novel con-
served when a court reaches its conclusion based on tra-
                                                               cept. Cf. Heine, 835 S.W.2d at 83 (holding that court
ditional rules of pleading and practice rather than on a
                                                               rendering default judgment must hear evidence of
comprehensive review of the available evidence.
                                                               unliquidated damages); Tex. Fam. Code Ann. § 6.701
     Moreover, under the [**19] traditional no-answer          (West 2002) (if respondent fails to answer in divorce
default judgment rule, a parent's failure to answer a peti-    suit, petition may not be taken as confessed); Considine
tion to terminate her parental rights would be tantamount      v. Considine, 726 S.W.2d 253, 254 (Tex. App.--Austin
to a voluntary relinquishment of parental rights, as the       1987, no writ) (holding that allegations in motion to
parent would be deemed to have admitted the allegations        modify conservatorship and support may not be taken as
                                                                                                                     Page 6
                                     150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


confessed if respondent fails to answer); see also Klap-                4    Because we are reversing based on Lydia's
prott v. United States, 335 U.S. 601, 612-13, 93 L. Ed.                 legal insufficiency point, we do not reach her
266, 69 S. Ct. 384 (1949) (reversing default judgment in                complaint that the trial court erred in failing to
denaturalization proceeding [**22] because rendered                     grant her motion for new trial and express no
without evidentiary hearing). In Considine, this Court                  opinion on this issue.
reasoned that the policy considerations underlying sec-
tion 6.701 of the family code, which requires the peti-
                                                                 Legal Sufficiency Review
tioner to prove the allegations in a petition for divorce
even if the respondent has failed to answer, should also
                                                                  Because termination of parental rights is such a drastic
apply in proceedings to modify provisions in prior di-
                                                                 remedy and is of such weight and gravity, due process
vorce judgments that appoint conservators and set child
                                                                 requires the petitioner to justify termination [*449] by
support. 726 S.W.2d at 254; see also Armstrong v. Arm-
                                                                 the heightened burden of proof of "clear and convincing
strong, 601 S.W.2d 724, 726 (Tex. Civ. App.--Beaumont
                                                                 evidence." Tex. Fam. Code Ann. § 161.001; In re G.M.,
1980, writ ref'd n.r.e.) (refusing to apply the traditional
                                                                 596 S.W.2d at 846. "Clear and convincing evidence"
default judgment rule in reviewing modification of con-
                                                                 means "the measure or degree of proof that will produce
servatorship). Similarly, we conclude that it cannot be in
                                                                 in the mind of the trier of fact a firm belief or conviction
the child's best interest to determine whether his rela-
                                                                 as to the truth of the allegations sought to be estab-
tionship with his parent should be terminated based
                                                                 lished." Tex. Fam. Code Ann. § 101.007 (West 2002);
solely on the parent's failure to file timely a response to
                                                                 accord In re C.H., 89 S.W.3d 17, 19, 25, 45 Tex. Sup. Ct.
the petition. We recognize that the parent's failure to re-
                                                                 J. 1000 (Tex. 2002); In re G.M., 596 S.W.2d at 847. This
spond may affect the trial court's consideration of the
                                                                 standard is an intermediate standard, falling between the
issues in the case, but it should not form the sole basis
                                                                 preponderance standard of ordinary civil proceedings
for the trial court's judgment.
                                                                 [**25] and the reasonable doubt standard of criminal
     We suspect that the facts presented in this case are        proceedings. In re G.M., 596 S.W.2d at 847.
anomalous and that this is a unique case. We note that
                                                                      The heightened "clear and convincing evidence"
the [**23] Department of Protective and Regulatory
                                                                 burden of proof alters our appellate legal sufficiency
Services was not a party in this dispute, and no attorney
                                                                 standard of review. In re J.F.C., 96 S.W.3d 256, 256-66,
ad litem was appointed to represent the parent. 3 In addi-
                                                                 46 Tex. Sup. Ct. J. 328 (Tex. 2002); In re C.H., 89
tion, Lydia claims her failure to appear was due in part to
                                                                 S.W.3d at 25. This is because our traditional no-evidence
bad legal advice and misrepresentations made to her by
                                                                 standard of review does not adequately protect the par-
her mother, who initiated this action. Finally, although
                                                                 ents' constitutional interests. In re J.F.C., 96 S.W.3d at
Lydia filed a motion for new trial after the court rendered
                                                                 264-65. In conducting our legal sufficiency review in
its judgment, the court overruled the motion, thus deny-
                                                                 termination cases, we must review all the evidence in the
ing Lydia the opportunity to present her perspective
                                                                 light most favorable to the finding and the judgment to
about the allegations made against her. 4 Under these
                                                                 determine "whether the evidence is such that a factfinder
unusual circumstances, we would be remiss were we to
                                                                 could reasonably form a firm belief or conviction" that
rely only on the allegations in the petition as a basis for
                                                                 the grounds for termination were proven. Id. at 265-66.
severing this parent-child relationship.
                                                                 In other words, we must assume that the fact finder re-
                                                                 solved disputed facts in favor of its finding if a reasona-
       3     This statement should not be construed to
                                                                 ble fact finder could do so. Id. at 266. We must also dis-
       suggest that an attorney ad litem should be ap-
                                                                 regard all evidence that a reasonable fact finder could
       pointed to represent a parent whose parental
                                                                 have disbelieved or found to have been incredible. Id.
       rights are subject to termination without a show-
                                                                 This does not mean that a court [**26] must disregard
       ing of indigency. The record in this case does not
                                                                 all evidence that does not support the finding, as this
       reveal whether the issue of Lydia's indigency was
                                                                 could skew the analysis of whether there is clear and
       ever raised before the court. We merely observe
                                                                 convincing evidence. Id. We must consider undisputed
       that often, even if the parent is not present at trial,
                                                                 evidence even if it does not support the finding. Id. Fol-
       an attorney ad litem usually is, thereby appearing
                                                                 lowing this review, if we determine that no reasonable
       for the parent and protecting the parent's rights. In
                                                                 fact finder could form a firm belief or conviction that the
       re K.C., 88 S.W.3d 277, 279 (Tex. App.--San An-
                                                                 matter that must be proven is true, then we must con-
       tonio 2002, pet. denied) (holding that because
                                                                 clude that the evidence is legally insufficient and render
       party's attorney appeared at trial, even though
                                                                 judgment in favor of the parent. Id.
       party did not, there was no default judgment; case
       was tried on the merits).                                     Termination of Parental Rights
 [**24]
                                                                                                                   Page 7
                                     150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


     A court may terminate parental rights if it finds that:    whether Lydia "engaged in conduct or knowingly placed
(1) the parent has engaged in any of the specific conduct       the child with persons who engaged in conduct that en-
enumerated in the family code as grounds for termina-           dangers the physical and emotional well being of the
tion, and (2) termination is in the best interest of the        child," to which Jackie [**29] answered, "Yes." The
child. Tex. Fam. Code Ann. § 161.001; Richardson v.             child's attorney ad litem then cross-examined Jackie and
Green, 677 S.W.2d 497, 499, 27 Tex. Sup. Ct. J. 466             asked for "some specifics about what Lydia has done to
(Tex. 1984). The fact finder must determine that clear          make you believe it's best that her parental rights be ter-
and convincing evidence supports both elements; proof           minated." Jackie responded that Child Protective Ser-
of one element does not relieve the burden of proving the       vices had previously investigated Lydia, and since then,
other. Holley v. Adams, 544 S.W.2d 367, 370, 20 Tex.            Lydia "has not really made any changes in that area."
Sup. Ct. J. 76 (Tex. 1976) (quoting Wiley v. Spratlan,          According to Jackie, Lydia "still doesn't have a job. She
543 S.W.2d 349, 351, 19 Tex. Sup. Ct. J. 385 (Tex.              has left them and she has another baby by another man
1976)). [**27] The child's best interest is not the sole        that she's lived with that I believe is involved in drugs,
goal of involuntary termination proceedings; termination        and she comes to visit [K.W.] on occasion, but she takes
"may not be based solely upon what the trial court de-          no responsibility to be her mother." The ad litem further
termines to be the best interest of the child." Id.             inquired whether the CPS investigation had to do with
                                                                "an issue of physical neglect," to which Jackie respond-
     The trial court's final order states that it found by
                                                                ed, "Yes. She left [K.W.] alone by herself," when she
clear and convincing evidence (1) that Lydia has en-
                                                                was about six months old. This was the totality of the
gaged in conduct or knowingly placed the child with
                                                                evidence adduced to support the allegation that Lydia
persons who engaged in conduct that endangers the
                                                                engaged in conduct or placed her child with persons who
physical or emotional well-being of the child, (2) that she
                                                                engaged in conduct that endangered her daughter's well
failed to support the child in accordance with her ability
                                                                being.
during a period of one year ending within six months of
the date of the filing of the petition, and (3) that termina-        Viewing the testimony in the light most favorable to
tion of the parent-child relationship between Lydia and         the judgment, as we must, we conclude that a fact finder
her child is in the best interest of the child.                 could not reasonably have formed a firm belief or con-
                                                                viction [**30] that this ground for termination was
     [*450] Dangerous Conduct
                                                                proven. In attempting to support the conclusory state-
     Under section 161.001(1)(E), a parent's rights may         ment that Lydia engaged in conduct or placed her child
be terminated if it is established by clear and convincing      with someone who engaged in conduct that endangered
evidence that the parent has "engaged in conduct or             her child, Jackie sparingly described events from the past
knowingly placed the child with persons who engaged in          that led to CPS's involvement and Lydia's current con-
conduct which endangers the physical or emotional               servatorship status. Jackie's testimony revealed about
well-being of the child." Tex. Fam. Code Ann. §                 CPS's prior involvement only that Lydia had at one time
161.001(1)(E). Under subsection (E), we look exclu-             left her child alone when the child was six months old.
sively to the parents' [**28] conduct, including ac-            The record also reveals, however, that following that
tions, omissions, or the parents' failure to act. In re D.M.,   incident (about which we know very little), CPS did not
58 S.W.3d 801, 811 (Tex. App.--Fort Worth 2001, no              seek termination of Lydia's parental rights, and indeed,
pet.). Termination based on this subsection must be             was ultimately dismissed from the suit. Moreover, Lydia
based on more than a single act or omission; a voluntary,       was named possessory conservator of her child. There is
deliberate, and conscious "course of conduct" that en-          no evidence that any of Lydia's conduct directly resulted
dangered the child's physical and emotional well-being is       in endangerment to the child's physical or emotional
required. Texas Dep't of Human Servs. v. Boyd, 727              well-being. Indeed, there is no evidence that the child's
S.W.2d 531, 534, 30 Tex. Sup. Ct. J. 352 (Tex. 1987); In        physical or emotional well-being [*451] was ever en-
re D.M., 58 S.W.3d at 811. "Endanger" means to expose           dangered. In re D.T., 34 S.W.3d 625, 634 (Tex.
to loss or injury, to jeopardize. In re M.C., 917 S.W.2d        App.--Fort Worth 2000, pet. denied) (holding there must
268, 270, 39 Tex. Sup. Ct. J. 373 (Tex. 1996). The en-          be evidence of endangerment to child's physical or emo-
dangering acts need not have been directed at the child,        tional well-being as direct result of parent's conduct).
or have caused an actual injury or threat of injury to the      [**31] Additionally, termination under this subsection
child to constitute conduct that endangers the child's          must be based on more than a single act or omission;
physical or emotional well-being. In re M.C., 917 S.W.2d        evidence of a voluntary "course of conduct" is required.
268, 269, 39 Tex. Sup. Ct. J. 373 (Tex. 1996).                  Id. This simply was not established here. Finally, Jackie's
                                                                statement that she believes Lydia lives with a man who is
    At the termination hearing, Jackie was the only wit-
                                                                involved in drugs is no more than a mere surmise or sus-
ness who testified. She was asked by her attorney
                                                                picion, which is not the same as evidence. See Kindred v.
                                                                                                                   Page 8
                                    150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, **


Con/Chem, Inc., 650 S.W.2d 61, 63, 26 Tex. Sup. Ct. J.         S.W.3d 256, 46 Tex. Sup. Ct. J. 328, and In re C.H., 89
383 (Tex. 1983). We therefore hold that there is no le-        S.W.3d 17, 45 Tex. Sup. Ct. J. 1000.
gally sufficient evidence to support the trial court's find-
                                                                    Again, the only evidence Jackie provided regarding
ing that Lydia engaged in conduct or placed her child
                                                               the child's best interest was her own testimony that she
with others who engaged in conduct that endangered the
                                                               believed termination of Lydia's parental rights and adop-
child's well-being.
                                                               tion of the child by Thomas and Iris Cummins would be
    Failure to Support                                         in the child's best interest. No specifics were provided
                                                               with regard to any of the enumerated factors listed
       Under section 161.001(1)(F), the parent-child rela-
                                                               above. And no evidence was adduced about the Cum-
tionship may also be terminated if the court finds by
                                                               mins or their relationship with the child. We conclude
clear and convincing evidence that the parent has failed
                                                               that [*452] this testimony amounts to no evidence of
to support the child in accordance with the parent's abil-
                                                               the best interest of the child.
ity during a period of one year ending within six months
of the date of the filing of the petition. Tex. Fam. Code
                                                                [**34] CONCLUSION
Ann. § 161.001(1)(F) (West 2002). With regard to this
basis for termination, Jackie offered no evidence, other            We conclude that although the citation failed to in-
than to [**32] track the statutory language and assert         clude Jackie's name as the petitioner, the record reveals
that Lydia "failed to support the child in accordance with     that Lydia was properly served. We therefore overrule
her ability, during the period of one year, ending within      Lydia's first issue. Because we hold that the evidence is
six months of the date of filing this petition." We hold       legally insufficient to support any of the bases relied on
that no legally sufficient evidence exists to support the      by the trial court in terminating Lydia's parental rights,
trial court's finding that Lydia failed to support her child   we sustain Lydia's third and fourth issues. 5 Generally,
in accordance with her ability for a period of one year.       when a legal insufficiency point is sustained, the re-
                                                               viewing court renders judgment in favor of the party
    Best Interest of the Child
                                                               bringing the point of error. Heine, 835 S.W.2d at 86;
                                                               Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 821 (Tex.
Although a strong presumption exists that the best inter-
                                                               App.--San Antonio 1999, no pet.). When the interests of
est of a child is served by keeping conservatorship in the
                                                               justice require a new trial for further development of the
natural parent, this presumption may be overcome by
                                                               facts, however, the case can be remanded. Tex. R. App.
clear and convincing evidence of the parent's present
                                                               P. 43.3(b); Flores, 5 S.W.3d at 821. While we recognize
unfitness. In re D.M., 58 S.W.3d at 814. The supreme
                                                               the child's interest in having a quick and final resolution
court has listed several factors to be considered by a
                                                               of this case and the need for stability in the child's life,
court in determining whether this presumption has been
                                                               we believe that because this case presented us with an
rebutted: (1) the desires of the child, (2) the present and
                                                               issue of first impression in Texas and because we have
future physical and emotional needs of the child, (3) the
                                                               announced a new rule in addressing that issue, the inter-
present and future emotional and physical danger to the
                                                               ests [**35] of justice are better served by remanding
child, (4) the parental abilities of the person seeking cus-
                                                               this case for further proceedings. It is also in the child's
tody, (5) programs available to assist those persons in
                                                               best interest for the trial court to fully develop the evi-
promoting the child's best interest, (6) plans for the child
                                                               dence and render a judgment following consideration of
by those individuals [**33] or by the agency seeking
                                                               the evidence. Accordingly, we reverse the judgment of
custody, (7) the stability of the home or the proposed
                                                               the trial court and remand this case for further proceed-
placement, (8) the acts or omissions of the parent that
                                                               ings consistent with this opinion.
may indicate that the existing parent-child relationship is
not appropriate, and (9) any excuse for the acts or omis-
                                                                      5     Because we are reversing for legally insuf-
sions of the parent. Holley, 544 S.W.2d at 371-72. In
                                                                      ficient evidence, we do not reach Lydia's remain-
addition, a fact finder may infer that past conduct en-
                                                                      ing issues. See Tex. R. App. P. 47.1 (opinion
dangering the well being of a child may recur in the fu-
                                                                      should be as brief as practicable and address
ture if the child is returned to the parent. In re D.L.N.,
                                                                      every issue necessary to final disposition of ap-
958 S.W.2d 934, 941 (Tex. App.--Waco 1997, pet. de-
                                                                      peal).
nied), disapproved on other grounds by In re J.F.C., 96
                                                                   David Puryear, Justice
                                                                                                                Page 1




Caution
As of: Mar 30, 2015

               Gregorio ZAMARRIPA Appellant, v. Bianca SIFUENTES and Charles RAKOSKY
                                              Appellees.

                                            Appeal No. 04-96-00145-CV

                  COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                   929 S.W.2d 655; 1996 Tex. App. LEXIS 4071


                                          September 11, 1996, Delivered
                                            September 11, 1996, Filed

PRIOR HISTORY:              [**1]   Appeal from the        Procedural History
166th District Court of Bexar County. Trial Court No.
                                                                Appellees, as plaintiffs below, took a default judg-
94-CI-09068. Honorable Andy Mireles, Judge Presiding.
                                                           ment on a personal injury claim on August 19, 1994. At
                                                           some point that same day, appellant's counsel filed an
DISPOSITION:          DISMISSED FOR WANT OF JU-
                                                           answer to the petition. Thereafter, both sides engaged in
RISDICTION
                                                           written discovery and settlement negotiations. Appel-
                                                           lant's counsel, however, did not learn that a default
                                                           judgment had been taken in the case until [**2] April of
COUNSEL: FOR APPELLANT: Joe R. Greenhill, Jr.,
                                                           1995, whereupon he filed a motion to reconsider the de-
Craig Andrew Nevelow, WRIGHT & GREENHILL,
                                                           fault judgment. The trial court denied the motion to re-
P.C., Austin, TX.
                                                           consider on the ground its plenary power in this case had
                                                           expired, and defendant thereafter appealed.
FOR APPELLEES: Bruce J. Mery, LAW OFFICES OF
BRUCE J. MERY, Karl E. Hays, LAW OFFICES OF                     Upon examination of the transcript, we questioned
KARL E. HAYS, San Antonio, TX.                             whether our jurisdiction had been invoked. The parties
                                                           agree that the case must be dismissed for want of juris-
JUDGES: Opinion By: Catherine Stone, Justice. Sitting:     diction, but disagree on the grounds for the dismissal.
Tom Rickhoff, Justice, Catherine Stone, Justice, Phil      Appellant argues that the default judgment is interlocu-
Hardberger, Justice.                                       tory and that the appeal should be dismissed for failure to
                                                           bring a final appealable judgment. Appellees argue that
OPINION BY: CATHERINE STONE                                the default judgment was final in 1994 and that this ap-
                                                           peal should be dismissed as untimely filed.
OPINION
                                                               The Finality Issue
      [*656] The question presented in this appeal is
whether the default judgment entered was interlocutory     A judgment must dispose of all parties and all issues
or final. We hold that the judgment entered in this case   before the trial court in order for it to be considered final
was interlocutory and we dismiss the appeal for want of    and appealable. [*657] Park Place Hosp. v. Estate of
jurisdiction.                                              Milo, 909 S.W.2d 508, 510 (Tex. 1995). In contrast to a
                                                           judgment entered following a trial on the merits, a de-
                                                                                                                 Page 2
                                  929 S.W.2d 655, *; 1996 Tex. App. LEXIS 4071, **


fault judgment carries no presumption of finality. See             The judgment, however, must be certain, so that it
Houston Health Clubs v. First Court of Appeals, 722           can be enforced by writ of execution. Ministerial officers
S.W.2d 692, 693 (Tex. 1986). To determine an issue of         must be able to carry the judgment into execution with-
finality [**3] we are directed to divine the intention of     out having to ascertain any additional facts. See H.E.
the trial court "from the language of the decree and the      Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 680 (Tex.
record as a whole, aided on occasion by the conduct of        App.--Corpus Christi 1991, writ denied). The statute
the parties." Continental Airlines, Inc. v. Kiefer, 920       which mandates prejudgment interest in wrongful death,
S.W.2d 274, 277 (Tex. 1996) (quoting 5 RAY W.                 personal injury, and property damage cases also provides
MCDONALD, TEXAS CIVIL PRACTICE § 27:4[a] at                   for a tolling period during the time when a settlement
7 (John S. Covell, ed., 1992 ed.)).                           offer is pending. See id., § 6(b)-(f). The tolling provi-
                                                              sions of § 6 (b) and (c) require the court to compare the
The default judgment does not dispose of the prejudg-         amount of the settlement offer to the amount of judg-
ment interest claim pled in plaintiff's petition. The judg-   ment. They also require exact information on the period
ment is completely silent on prejudgment interest and         of time the settlement offer was pending. The record
does not contain a Mother Hubbard clause. Appellees           reflects that written settlement offers were exchanged by
argue that these omissions do not render the judgment         the parties on more than one occasion prior to the entry
interlocutory because the awarding of prejudgment in-         of the default judgment. Because the pending dates and
terest is mandatory in personal injury cases. See TEX.        amounts of such [**6] offers are not clear as part of the
REV. CIV. STAT. ANN. art. 5069-1.05, § 6(a) (Vernon           record, it is no mere ministerial act to calculate prejudg-
Supp. 1996) ("Judgments in ... personal injury ... cases      ment interest. Taking these provisions into consideration,
must include prejudgment interest."); Sisters of Charity      we are unable to ascertain from the judgment when pre-
v. Dunsmoor, 832 S.W.2d 112, 116 (Tex. App.--Austin           judgment interest would begin to accrue. 1 [*658] The
1992, writ denied) ( § 6 amendment codified, modified,        calculation of prejudgment interest involves factual is-
and overturned portions of Cavnar v. Quality Control          sues which remain unresolved by the default judgment.
Parking, Inc., 696 S.W.2d 549 (Tex. 1985)). They seek to
distinguish the supreme court's 1982 opinion in Hunt Oil             1 Appellant argues that appellees have not pled
Co. v. Moore [**4] on two grounds -- it is not a person-             prejudgment interest under the statutory authority
al injury case and it was rendered prior to the legisla-             of Section 6 of Article 5069-1.05; rather, appel-
ture's codification of mandatory prejudgment interest in             lees seek interest based upon a calculation begin-
1987. See Hunt Oil Co. v. Moore, 639 S.W.2d 459, 460                 ning six months from date of occurrence as pre-
(Tex. 1982). It is clear that the court found the judgment           scribed in Cavnar. Regardless of the pleading de-
in Hunt Oil to be interlocutory for two independent rea-             ficiencies presented in this cause, the exclusive
sons. The summary judgment called for an accounting to               means of seeking prejudgment interest in a per-
be rendered at a future date and it did not address                  sonal injury case is now found in TEX. REV.
Moore's claim for prejudgment interest. Id. at 460. Either           CIV. STAT. ANN. art. 5069-1.05, § 6
reason would render the judgment interlocutory.
                                                                   Appellees' counsel stated at the hearing on the mo-
     Appellees urge us to treat a mandatory award of          tion for new trial that their petition only requests pre-
prejudgment interest in the same manner post-judgment         judgment interest in their prayer for relief. It is argued
interest is treated. See Staff Industries v. Hallmark Con-    that because [**7] counsel did not put on evidence of
tracting, 846 S.W.2d 542, 551 (Tex. App.--Corpus Chris-       prejudgment interest at the earlier hearing at which the
ti 1993, no writ) (post-judgment interest recoverable         default judgment was granted and the judgment does not
whether or not specifically awarded in judgment). This        grant prejudgment interest, that the judgment is some-
rationale is based on the fact that the calculation of        how final. That sounds like appellees are attempting to
post-judgment interest is purely a ministerial function.      abandon their claim for prejudgment interest. For pur-
The amount of actual damages and the date of the judg-        poses of finality on a default judgment, however, one
ment are reflected in the judgment itself and the method      cannot trigger appellate timetables unilaterally. As noted
of calculating interest is set by statute. See TEX. REV.      in Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496
CIV. STAT. ANN. art. 5069-1.05, § 2. Although [**5]           (Tex. 1995), "The appellate timetable does not com-
appellees cite no case law for support, the argument is       mence to run other than by signed, written order, even
tempting because the statute provides that the rate of        when the signing of such an order is purely ministerial."
prejudgment interest "shall be the same as the rate of        The fact that appellees did not produce evidence at the
postjudgment interest at the time of judgment." Id., §        hearing on default does not allow us to presume waiver
6(g).                                                         or abandonment because there was no conventional trial
                                                              on the merits. See Strut Cam Dimensions, Inc. v. Sutton,
                                                              896 S.W.2d 799, 801 (Tex. App.--Corpus Christi 1995,
                                                                                                                   Page 3
                                   929 S.W.2d 655, *; 1996 Tex. App. LEXIS 4071, **


writ denied) (presumption of finality only applies when        months. The discovery involved standard questions con-
conventional trial actually conducted); H.E. Butt Grocery      cerned [**9] with liability and damages as opposed to
Co. v. Bay, Inc., 808 S.W.2d at 680 (no presumption of         post-judgment discovery. Appellees' counsel never dis-
finality in default judgment). If appellees are attempting     cussed these issues with appellant's counsel in the con-
to abandon prejudgment interest, it is not [**8] clear         text of the default judgment he had taken, in fact, he
when the abandonment occurred. See Rosedale Partners           never mentioned the judgment at all. Appellees' counsel
v. 131 Judicial District Court, 869 S.W.2d 643, 644            admitted to the trial court he did not discuss it because he
(Tex. App.--San Antonio 1994, orig. proceeding). As in         had not determined for himself whether the answer was
Rosedale Partners, the record before us does not contain       filed prior to or after the default was taken. The parties
any amended petition deleting the claim for prejudgment        clearly acted as though the judgment was interlocutory.
interest, an affidavit explaining when the claim was
                                                                   Conclusion
abandoned, or any other evidence indicating an intent to
abandon the remaining claim for prejudgment interest.                We hold that the default judgment is interlocutory
As there is no presumption of finality, we can only con-       because the issue of prejudgment interest remains unre-
clude that the issue of prejudgment interest remains           solved. The trial court erred when it denied appellant's
pending and the default judgment in interlocutory. We          motion for new trial on the default judgment for want of
find it indistinguishable from Hunt Oil Co. v. Moore, 639      jurisdiction. Our holding does not intend to speak to the
S.W.2d 459, 460 (Tex. 1982).                                   merits of the motion for new trial. That is something that
                                                               is within the discretion of the trial court. We only declare
     Lastly, the conduct of the parties led the trial court
                                                               that the trial court has jurisdiction to consider the motion
to question whether it intended the default judgment to
                                                               for new trial on the merits.
be final. At the hearing on the new trial motion, counsel
for appellees admitted to the trial court that after he took       This appeal is dismissed for want of jurisdiction.
the default judgment he learned that appellant was rep-
resented by counsel who had filed an answer the same               CATHERINE STONE
day judgment was taken. They engaged in settlement                 JUSTICE
discussions and written discovery over the next eight
|   | Neutral
As of: April 7, 2015 6:06 PM EDT


                                               Zepeda v. Giraud
                               Court of Appeals of Texas, Fourth District, San Antonio
                                   June 29, 1994, Delivered ; June 29, 1994, Filed
                                             Appeal No. 04-93-00378-CV

Reporter
880 S.W.2d 833; 1994 Tex. App. LEXIS 1983

Robert L. ZEPEDA, Appellant, v. Eugene L. GIRAUD &             was untimely, the ordinary appeal was dismissed.
Margery F. GIRAUD, Appellants.                                 Defendant subsequently perfected an appeal by writ of
                                                               error. Appellees alleged in a counterpoint that the court
Subsequent History:        [**1]   Motion for Rehearing        lacked jurisdiction to hear appellant's challenge by writ
Denied July 27, 1994.                                          of error because appellant had already pursued an
                                                               ordinary appeal from the same default judgment. An
Prior History: Appeal from the County Court at Law             appeal or writ of error to the court of appeals from a final
No. 4 of Bexar County. Trial Court No. 207,755-A.              judgment of a district or county court was permitted
Honorable H. Paul Canales, Judge Presiding                     under Tex. Civ. Prac. & Rem. Code Ann. § 51.012
                                                               (1986). The code did not allow for both an appeal and a
Disposition: DISMISSED              FOR      WANT       OF
                                                               writ of error. Because appellant had not abandoned his
JURISDICTION
                                                               prior appeal, he was not entitled to pursue a writ of error
                                                               pursuant to Tex. R. App. P. 5(b)(4). Therefore, the
Core Terms                                                     appeal was dismissed for want of jurisdiction.

writ of error, default judgment, abandon, ordinary             Outcome
appeal, fail to file, perfecting an appeal, perfected, lack
of jurisdiction, court of appeals, appeal bond, trial court,   An appeal by writ of error from a default judgment in a
pursued                                                        civil suit was dismissed for want of jurisdiction because
                                                               appellant had previously perfected an ordinary appeal,
                                                               which was dismissed by the court and not abandoned
Case Summary
                                                               by appellant.

Procedural Posture
                                                               LexisNexis® Headnotes
Appellant sought review by writ of error of a default
judgment from the County Court at Law No. 4 of Bexar             Civil Procedure > Appeals > Reviewability of Lower Court
County (Texas), rendered against appellant and in favor          Decisions > General Overview
of appellees in a civil suit. Appellees alleged in a
counterpoint of error that the appellate court lacked          HN1 The right to appeal by writ of error to the court of
jurisdiction to hear the appeal.                               appeals is provided by Tex. Civ. Prac. & Rem. Code
                                                               Ann. § 51.012 (1986), which provides that in a civil case
Overview                                                       in which the judgment or amount in controversy exceeds
                                                               $ 100, exclusive of interest and costs, a person may
A default judgment was entered in favor of appellees in        take an appeal or writ of error to the court of appeals
a civil case in which the judgment or amount in                from a final judgment of the district court or county court.
controversy exceeded $ 100, exclusive of interest and          That code provision also establishes the right to take an
costs. Appellant filed an appeal bond and thus perfected       ordinary appeal.
an ordinary appeal from the default judgment. Because
appellant failed to file a transcript and statement of facts     Civil Procedure > Appeals > Reviewability of Lower Court
on time and his motion for extension to file the record          Decisions > General Overview
                               880 S.W.2d 833, *833; 1994 Tex. App. LEXIS 1983, **1



HN2 A litigant has the right to either an ordinary appeal     pursued an ordinary appeal from the same default
or an appeal by writ of error but not both.                   judgment.

  Civil Procedure > ... > Pretrial Judgments > Nonsuits >     The trial court rendered the default judgment on
  Voluntary Nonsuits                                          December 14, 1992. Zepeda timely perfected an
                                                              ordinary appeal from the default judgment by filing an
  Civil Procedure > Remedies > Writs > General Overview
                                                              appeal bond on January 13, 1993. This court dismissed
HN3 A party may abandon an appeal and sue out a writ          Zepeda's appeal because he failed to file [**2] his
of error from the same judgment.                              transcript and statement of facts on time and his motion
                                                              for extension to file the record was also untimely. Zepeda
  Civil Procedure > Judgments > Pretrial Judgments >          v. Giraud, No. 04-93-00148-CV (Tex. App.--San Antonio,
  General Overview                                            March 24, 1993) (not published).
  Civil Procedure > ... > Pretrial Judgments > Default &
                                                              On April 26, 1993, Zepeda filed his petition for writ of
  Default Judgments > General Overview
                                                              error, bond, designation for transcript and request for
  Civil Procedure > ... > Pretrial Judgments > Default &      written statement of facts in the trial court thus perfecting
  Default Judgments > Default Judgments                       the appeal by writ of error. Zepeda now asks this court
  Civil Procedure > Remedies > Writs > General Overview       to review the default judgment by writ of error.
  Civil Procedure > Appeals > Appellate Jurisdiction >        HN1 The right to appeal by writ of error to the court of
  General Overview                                            appeals is provided by Civil practice and Remedies
  Civil Procedure > Appeals > Notice of Appeal                Code section 51.012 which provides:
  Governments > Legislation > Statutory Remedies & Rights
                                                                  In a civil case in which the judgment or amount
HN4 A party suffering a default judgment may perfect              in controversy exceeds $ 100, exclusive of
an appeal, or abandon it and pursue his statutory rights          interest and costs, a person may take an appeal
under the writ of error.                                          or writ of error to the court of appeals from a
                                                                  final judgment of the district court or county
Counsel: For Appellant: Pepos S. Dounson, 2109 San                court.
Pedro Avenue, San Antonio, TX 78212.
                                                              TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (Vernon
For Appellees: David L. Willis, JACOBS, WILLIS &              1986) (emphasis supplied). This code provision also
WILKINS, 105 S. St. Mary's St., Suite 2300, San               establishes the right to take an ordinary appeal. It is
Antonio, TX 78205.                                            clear that the statute establishes the right to take either
                                                              an ordinary appeal or an appeal by writ of error. HN2 A
Judges: Sitting: Alfonso Chapa, Chief Justice, Tom            litigant has the right to either an [**3] ordinary appeal or
Rickhoff, Justice, Phil Hardberger, Justice                   an appeal by writ of error but not both. Id.

                                                              This court has previously stated that HN3 a party may
Opinion by: PHIL HARDBERGER
                                                              abandon an appeal and sue out a writ of error from the
                                                              same judgment. Alejo v. Pellegrin, 616 S.W.2d 331, 333
Opinion                                                       (Tex. Civ. App.--San Antonio 1981, writ dism'd). The
                                                              present case does not involve an abandoned appeal.
[*834] OPINION                                                Zepeda properly perfected his first appeal but failed to
                                                              file his record on time and then compounded the error
Opinion by: Phil Hardberger, Justice                          by failing to file his motion for extension of time within
                                                              the deadline set out in Texas Rule of Appellate
Robert Zepeda seeks review by writ of error of a default      Procedure 54(c). Zepeda's appeal was dismissed for
judgment rendered against him and in favor of Eugene          failure to file his record in accordance with the Texas
and Margery Giraud. In one counterpoint of error,             Rules of Appellate Procedure. Zepeda did not abandon
Appellees allege that this court lacks jurisdiction to hear   his appeal, in fact Zepeda argued that his late filed
Zepeda's appeal by writ of error because he has already       transcript should be considered pursuant to Texas Rule
                                                                                                             Page 2 of 3
                              880 S.W.2d 833, *834; 1994 Tex. App. LEXIS 1983, **3



of Appellate Procedure 5(b)(4). Therefore, the rule         pursue his statutory rights under the writ of error." Id. at
concerning abandoned appeals does not apply.                521.

[*835] In Houtex Managing General Agency, Inc. v.           The instant case involves neither an abandoned appeal
Hardcastle, 735 S.W.2d 520 (Tex. App.--Houston [1st         nor a failure to perfect an appeal. Zepeda perfected his
Dist.] 1987, writ ref'd n.r.e.), the court held that an     appeal and pursued the appeal, albeit unsuccessfully,
appellant's attempted direct appeal from a default          to the end. Zepeda is not entitled to a second bite at the
judgment, which was dismissed for lack of jurisdiction      apple.
 [**4]   because the appeal bond was filed late, did not
                                                            This appeal is dismissed for want of jurisdiction.
constitute an appeal so as to deprive the appellate court
of jurisdiction to subsequently review the default          PHIL HARDBERGER
judgment by writ of error. The Houtex court stated that
"it is well settled that HN4 a party suffering a default    JUSTICE
judgment may perfect an appeal, or abandon it and




                                                                                                            Page 3 of 3
                                                                                                              Page 1




                                               3 of 3 DOCUMENTS




Positive
As of: Mar 30, 2015

               YUMIN ZHAO, Appellant v. LONE STAR ENGINE INSTALLATION CENTER,
                                          INC., Appellee

                                                No. 05-09-01055-CV

                        COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                                            2009 Tex. App. LEXIS 7767


                                          October 6, 2009, Opinion Filed

SUBSEQUENT HISTORY: Rehearing overruled by
                                                                The trial court's judgment was signed on May 20,
Zhao v. Lone Star Engine Installation Ctr., Inc., 2009
                                                           2009 and appellant filed a timely motion for new trial.
Tex. App. LEXIS 8798 (Tex. App. Dallas, Nov. 5, 2009)
                                                           Therefore, his notice of appeal was due by August 18,
Petition for review denied by Yumin Zhao v. Lone Star
                                                           2009. See TEX. R. APP. P. 26.1(a). The notice of appeal
Engine Installation Ctr., Inc., 2010 Tex. LEXIS 290
                                                           was filed on September 2, 2009, within the fifteen-day
(Tex., Apr. 9, 2010)
                                                           period provided by rule 26.3. See TEX. R. APP. P.
US Supreme Court certiorari denied by Yumin Zhao v.
                                                           26.3(a). Therefore, we directed appellant to file a motion
Lone Star Engine Installation Ctr., 2010 U.S. LEXIS
                                                           to extend time to file his notice of appeal setting forth a
8593 (U.S., Nov. 1, 2010)
                                                           reasonable explanation for the need of the extension. See
                                                           TEX. R. APP. P. 10.5(b), 26.3(b); Verburgt v. Dorner,
PRIOR HISTORY: [*1]
                                                           959 S.W.2d 615 (Tex. 1997).
  On Appeal from the 134th Judicial District Court,
Dallas County, Texas. Trial Court Cause No. 08-10266.            In his extension motion, appellant asserted, "Plain-
                                                           tiff's motion for new trial was timely filed on June 19,
COUNSEL: For APPELLANT: Yumin Zhao, Richard-               2009. The hear [sic] date of motion for new trial was set
son, TX.                                                   on Sept. 2nd, 2009; Therefore whether to appeal [*2]
                                                           only could be determined after the hearing of motion for
For APPELLEE: James N. Apostle, Dallas, TX.                new trial." Appellee responded that appellant did not
                                                           provide a reasonable explanation because the motion for
JUDGES: Before Justices Wright, Richter, and Fillmore.     new trial had already been overruled by operation of law
                                                           on August 3, 2009, and appellant did not file his notice
OPINION                                                    of appeal until the 105th day after the trial court's judg-
                                                           ment was signed. We agree that appellant has not pro-
MEMORANDUM OPINION                                         vided a reasonable explanation for the need of the exten-
                                                           sion.
     The Court has before it appellant's September 22,
2009 motion to extend time to file his notice of appeal        The Texas Supreme Court has defined "reasonable
and appellee's response in opposition to the motion. For   explanation" to mean "'any plausible statement of cir-
the reasons set forth below, we deny the extension mo-     cumstance indicating that failure to file within the [re-
tion and dismiss the appeal.                               quired] period was not deliberated or intentional, but was
                                                                                                                     Page 2
                                               2009 Tex. App. LEXIS 7767, *


the result of inadvertence, mistake, or mischance." Gar-         Weik v. Second Baptist Church of Houston, 988 S.W.2d
cia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex.            437, 439 (Tex. App.--Houston [1st Dist.] 1999, pet. de-
1989) (internal citation omitted). "Any conduct short of         nied) (holding unreasonable appellant's explanation that
deliberate or intentional noncompliance qualifies as in-         his lawyer told him if he appealed case while trial court
advertence, mistake, or mischance. . . ." Id. at 670.            still had authority to reinstate case, trial court would re-
                                                                 instate case and appellant would have difficult time
     Texas courts have rejected as unreasonable explana-
                                                                 prosecuting [*4] claim because of trial court's displeas-
tions that show a defendant's conscious or strategic deci-
                                                                 ure with appellant). This Court has likewise rejected as
sion to wait to file a notice of appeal, reasoning the ex-
                                                                 unreasonable explanations that showed an appellant's
planations did not show inadvertence, mistake, or mis-
                                                                 decision to wait to file a notice of appeal was not due to
chance. See, e.g., Hykonnen v. Baker Hughes Bus. Sup-
                                                                 inadvertence, mistake, or mischance, but was due to a
port Servs., 93 S.W.3d 562, 563-64 (Tex. App.--Houston
                                                                 conscious decision to ignore the appellate timetable in
[14th Dist.] 2002, no pet.) [*3] (holding unreasonable
                                                                 favor of the trial court's jurisdictional timetable. See
appellant's explanation he failed to file notice of appeal
                                                                 Crossland v. Crossland, No. 05-06-00228-CV, 2006 Tex.
until he found attorney to represent him on appeal at lit-
                                                                 App. LEXIS 2881, 2006 WL 925032 (Tex. App.--Dallas
tle or no cost); Rodman v. State, 47 S.W.3d 545, 548-49
                                                                 Apr. 11, 2006, no pet.) (mem. op.) (per curiam).
(Tex. App.--Amarillo 2000, no pet.) (holding unreasona-
ble explanation that when State disclosed, after expira-              Because appellant's explanation in this case shows
tion of time for filing notice of appeal, its intent to indict   he was aware of the deadline for filing his notice of ap-
appellant for other crimes, appellant decided to appeal to       peal, but consciously ignored the deadline in favor of
preserve eligibility for probation in upcoming trials);          waiting for a ruling on his motion for new trial, we con-
Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex.                       clude appellant has not provided a reasonable explana-
App.--Amarillo 1999, no pet.) (op. on reh'g) (holding            tion for the need of the extension. We deny his motion to
unreasonable explanations counsel miscalculated due              extend time to file his notice of appeal.
date for filing notice of appeal when he failed to file no-
                                                                     We dismiss the appeal for want of jurisdiction.
tice of appeal on miscalculated date and counsel's pre-
occupation with other cases without detailed explanation             PER CURIAM
of complexities and relevant deadlines of other cases);
                                                 Tex. R. App. P. Rule 4




                                            Tex. R. App. P. Rule 4
                                  This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
ONE. GENERAL PROVISIONS

Rule 4 Time and Notice Provisions
  4.2 No Notice of Trial Court's Judgment in Civil Case.
       (a) Additional Time to File Documents.
            (1) In General. --If a party affected by a judgment or other appealable order has not - within 20 days
                after the judgment or order was signed - either received the notice required by Texas Rule of Civil
                Procedure 306a.3 or acquired actual knowledge of the signing, then a period that, under these rules,
                runs from the signing will begin for that party on the earlier of the date when the party receives notice
                or acquires actual knowledge of the signing. But in no event may the period begin more than 90
                days after the judgment or order was signed.
            (2) Exception for Restricted Appeal.        --Subparagraph (1) does not extend the time for perfecting a
                restricted appeal.
            (b) Procedure to Gain Additional Time. --The procedure to gain additional time is governed by Texas
                Rule of Civil Procedure 306a.5.
            (c) The Court's Order. --After hearing the motion, the trial court must sign a written order that finds the
                date when the party or the party's attorney first either received notice or acquired actual knowledge
                that the judgment or order was signed.




Texas Rules
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.




                                                                                Page 13 of 13
                                                     Texas Rules
                               Copyright (c) 2015 by Matthew Bender & Company, Inc.
                                         a member of the LexisNexis Group.
                                                 All rights reserved.

                             *** This document is current through February 4, 2015 ***

                                           STATE RULES
                                 TEXAS RULES OF CIVIL PROCEDURE
                    PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
                                      SECTION 2. Institution of Suit

                                               Tex. R. Civ. P. 26 (2015)

Rule 26 Clerk's Court Docket

  Each clerk shall also keep a court docket in a permanent record that shall include the number of the case and the
names of the parties, the names of the attorneys, the nature of the action, the pleas, the motions, and the ruling of the
court as made.
                                           Tex. R. App. P. Rule 26
                                  This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS

Rule 26 Time to Perfect Appeal
      26.1 Civil Cases. --The notice of appeal must be filed within 30 days after the judgment is signed, except
          as follows:
      (a) the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files:
           (1) a motion for new trial;
           (2) a motion to modify the judgment;
           (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or
           (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by
               the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court;
      (b) in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is
          signed;
           (c) in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order
                is signed; and
           (d) if any party timely files a notice of appeal, another party may file a notice of appeal within the
               applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.
  26.2 Criminal Cases.
      (a) By the Defendant. --The notice of appeal must be filed:
           (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the
               trial court enters an appealable order; or
           (2) within 90 days after the sentence is imposed or suspended in open court if the defendant timely files
               a motion for new trial.
      (b) By the State. --The notice of appeal must be filed within 20 days after the day the trial court enters the
          order, ruling, or sentence to be appealed.
  26.3 Extension of Time. --The appellate court may extend the time to file the notice of appeal if, within 15 days
      after the deadline for filing the notice of appeal, the party:
      (a) files in the trial court the notice of appeal; and
      (b) files in the appellate court a motion complying with Rule 10.5(b).


History
Amended by Texas Court of Criminal Appeals, Misc. Docket No. 08-102, effective September 1, 2008; Amended by
Texas Supreme Court, Misc. Docket No. 08-9115 and Texas Court of Criminal Appeals, Misc. Docket No. 08-103,
effective September 1, 2008.
                                                Tex. R. App. P. Rule 26


Annotations
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                                                                               Page 154 of 154
                                                Tex. R. App. P. Rule 30




                                           Tex. R. App. P. Rule 30
                                  This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS

Rule 30 Restricted Appeal to Court of Appeals in Civil Cases
A party who did not participate - either in person or through counsel - in the hearing that resulted in the judgment
complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of
law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time
permitted by Rule 26.1(c). Restricted appeals replace writ of error appeals to the court of appeals. Statutes
pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.

Annotations


Notes
PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 145, Overview of the Appellate Process; Ch. 151,
Appellate Proceedings in Supreme Court; Ch. 154, Restricted Appeals.

Comment to 1997 change This is former Rule 45. The appeal by writ of error procedure is repealed. A procedure for
an appeal filed within 6 months--called a restricted appeal--is substituted. This rule sets out who may take a
restricted appeal. Rules 25.1 and 26.1 set out the method of perfection and the time for perfecting the appeal.



Texas Rules
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                                                                                Page 48 of 48
                                        Tex. Civ. Prac. & Rem. Code § 38.004




                                Tex. Civ. Prac. & Rem. Code § 38.004
                            This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE C. JUDGMENTS > CHAPTER 38. ATTORNEY'S FEES

§ 38.004. Judicial Notice
  The court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file
  without receiving further evidence in:
       (1) a proceeding before the court; or
       (2) a jury case in which the amount of attorney's fees is submitted to the court by agreement.


History
Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985.

Annotations


LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.




                                                                                Page 15 of 15
                                                    Texas Rules
                              Copyright (c) 2015 by Matthew Bender & Company, Inc.
                                        a member of the LexisNexis Group.
                                                All rights reserved.

                             *** This document is current through February 4, 2015 ***

                                           STATE RULES
                                 TEXAS RULES OF CIVIL PROCEDURE
                    PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
                                         SECTION 5. Citation

                                               Tex. R. Civ. P. 99 (2015)

Rule 99 Issuance and Form of Citation

  a. Issuance. --Upon the filing of the petition, the clerk, when requested, must forthwith issue a citation and
deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for
obtaining service of the citation and a copy of the petition. Upon request, separate or additional citations shall be
issued by the clerk. The clerk must retain a copy of the citation in the court's file.
     b. Form. --The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court,
(3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of
citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and
address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules
require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk,
and (12) shall notify the defendant that in case of failure of defendant to file and answer, judgment by default may
be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to
the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date
of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c
of this rule.
     c. Notice. --The citation shall include the following notice to the defendant: "You have been sued. You may
employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by
10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and
petition, a default judgment may be taken against you."
     d. Copies. --The party filing any pleading upon which citation is to be issued and served shall furnish the clerk
with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so
furnished the clerk shall make no charge for the copies.

HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 11-9250, effective January 1, 2012.
                                                   Tex. R. Civ. P. 106




                                               Tex. R. Civ. P. 106
                                  This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II.
RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 5. Citation

Rule 106 Method of Service
       (a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person
           authorized by Rule 103 by
       (1) 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 attached thereto, or
       (2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation
           with a copy of the petition attached thereto.
       (b)    Upon motion supported by affidavit stating the location of the defendant's usual place of business or
             usual place of abode or other place where the defendant can probably be found and stating specifically
             the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in
             such affidavit but has not been successful, the court may authorize service
       (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years
           of age at the location specified in such affidavit, or
       (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably
           effective to give the defendant notice of the suit.


History
SOURCE:
Art. 2026.
Change: The officer is directed to note upon the copy of the citation, which he delivers to the defendant, the date of
delivery. He delivers a copy of the petition in all cases.
Change by amendment effective January 1, 1976: Service "by registered or certified mail" is authorized in certain
instances.
Change by amendment effective January 1, 1978: Subdivisions (b) and (e) are new. The rule is rewritten.
Change by amendment effective January 1, 1981: The rule is reorganized to clarify its meaning. Alternate methods
of service are authorized if either (a)(1) or (a)(2) are tried without success. Both methods are not required.
Change by amendment effective January 1, 1988: Conforms to amendment to Rule 103.
PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 31, Service on Residents; Ch. 32, Personal
Jurisdiction and Service on Nonresidents.
  See also Civil Practice & Remedies Code §§ 17.021--17.025.

Annotations


Texas Rules
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.




                                                                                Page 24 of 24
                                                      Texas Rules
                                Copyright (c) 2015 by Matthew Bender & Company, Inc.
                                          a member of the LexisNexis Group.
                                                  All rights reserved.

                              *** This document is current through February 4, 2015 ***

                                            STATE RULES
                                  TEXAS RULES OF CIVIL PROCEDURE
                     PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
                                          SECTION 5. Citation

                                                  Tex. R. Civ. P. 107 (2015)

Rule 107 Return of Service

  (a) The officer or authorized person executing the citation must complete a return of service. The return may, but
need not, be endorsed on or attached to the citation.
    (b) The return, together with any document to which it is attached, must include the following information:
      (1) the cause number and case name;
      (2) the court in which the case is filed;
      (3) a description of what was served;
      (4) the date and time the process was received for service;
      (5) the person or entity served;
      (6) the address served;
      (7) the date of service or attempted service;
      (8) the manner of delivery of service or attempted service;
      (9) the name of the person who served or attempted to serve the process;
       (10) if the person named in (9) is a process server certified under order of the Supreme Court, his or her
identification number and the expiration date of his or her certification; and
      (11) any other information required by rule or law.
     (c) When the citation was served by registered or certified mail as authorized by Rule 106, the return by the
officer or authorized person must also contain the return receipt with the addressee's signature.
     (d) When the officer or authorized person has not served the citation, the return shall show the diligence used by
the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is
to be found, if ascertainable.
     (e) The officer or authorized person who serves or attempts to serve a citation must sign the return. If the return
is signed by a person other than a sheriff, constable, or the clerk of the court, the return must either be verified or be
signed under penalty of perjury. A return signed under penalty of perjury must contain the statement below in
substantially the following form:
    "My name is               , my date of birth is

         (First) (Middle) (Last)
      , and my address is      ,     ,      ,   , and

                    (Street)       (City)       (State)(Zip Code)




     . I declare under penalty of perjury that the foregoing is true and
correct.

 (Country)




 Executed in        County, State of            , on the   day of   ,
 .

 (Month)       (Year)




                                         Declarant"
   (f) Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be
made in the manner ordered by the court.
     (g) The return and any document to which it is attached must be filed with the court and may be filed
electronically or by facsimile, if those methods of filing are available.
     (h) 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 alternative 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.

HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 11-9250, effective January 1, 2012.
                                                     Texas Rules
                               Copyright (c) 2015 by Matthew Bender & Company, Inc.
                                         a member of the LexisNexis Group.
                                                 All rights reserved.

                             *** This document is current through February 4, 2015 ***

                                            STATE RULES
                                 TEXAS RULES OF CIVIL PROCEDURE
                    PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
                                       SECTION 11. Trial of Causes
                                           H. JUDGMENTS

                                              Tex. R. Civ. P. 306a (2015)

Rule 306a Periods to Run from Signing of Judgment

  1. Beginning of Periods. --The date of judgment or order is signed as shown of record shall determine the
beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate,
modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules
authorize a party to file within such periods including, but not limited to, motions for new trial, motions to modify
judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment and requests
for findings of fact and conclusions of law; but this rule shall not determine what constitutes rendition of a judgment
or order for any other purpose.
     2. Date to Be Shown. --Judges, attorneys and clerks are directed to use their best efforts to cause all judgments,
decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated
therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of
the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not
invalidate any judgment or order.
     3. Notice of Judgment. --When the final judgment or other appealable order is signed, the clerk of the court
shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment
or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in
paragraph (1) of this rule, except as provided in paragraph (4).
     4. No Notice of Judgment. --If within twenty days after the judgment or other appealable order is signed, a
party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor
acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1)
shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the
signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original
judgment or other appealable order was signed.
     5. Motion, Notice and Hearing. --In order to establish the application of paragraph (4) of this rule, the party
adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or
his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this
date was more than twenty days after the judgment was signed.
     6. Nunc Pro Tunc Order. --When a corrected judgment has been signed after expiration of the court's plenary
power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing
the corrected judgment with respect of any complaint that would not be applicable to the original document.
     7. When Process Served by Publication. --With respect to a motion for new trial filed more than thirty days
after the judgment was signed pursuant to Rule 329 when process has been served by publication, the periods
provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion.
                                                   Tex. R. Civ. P. 683




                                               Tex. R. Civ. P. 683
                                  This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART VI.
RULES RELATING TO ANCILLARY PROCEEDINGS > SECTION 5. Injunctions

Rule 683 Form and Scope of Injunction or Restraining Order
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be
specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act
or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active concert or participation with them who receive actual
notice of the order by personal service or otherwise.

Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect
to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial.

Annotations


Notes
SOURCE: Federal Rule 65(d), unchanged.
 Change by amendment effective April 1, 1984: The last paragraph is added.

PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 50, Injunction.
 See also Civil Practice & Remedies Code §§ 65.001--65.045.



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                                                                                Page 29 of 29
