                                                                                 ACCEPTED
                                                                             04-15-00563-CV
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                        10/7/2015 3:24:30 PM
                                                                              KEITH HOTTLE
                                                                                      CLERK

                            04-15-00563-CV

                                                       FILED IN
******************************************************************
                                                 4th COURT OF APPEALS
                                                  SAN ANTONIO, TEXAS
       IN   THE TEXAS COURT OF APPEALS FOR THE10/7/2015
                                                  FOURTH  3:24:30 PM
              DISTRICT SITTING IN SAN ANTONIO, TEXAS
                                                   KEITH E. HOTTLE
                                                        Clerk

******************************************************************

         HOLLY RIDGE UNITED HEALTHCARE, P.A., Appellant

                                   vs.

 UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES, Appellee

************************************************************************

                            Appellant’s Brief

******************************************************************

                                 WILLIAM M. NICHOLS, P.C.
                                 William M. Nichols
                                 State Bar No. 15006800
                                 McAllister Plaza, suite 1250
                                 9601 McAllister Freeway
                                 San Antonio, Texas 78216-5150
                                 Telephone: 210/340-8880
                                 Facsimile: 210/340-8885
                                 william@wmnlawsa.com
                                 ATTORNEY FOR APPELLANT

                     ORAL ARGUMENT REQUESTED
          IDENTITIES OF ALL PARTIES AND THEIR COUNSEL

Counsel for Appellant Holly Ridge United Healthcare, P.A.:

WILLIAM M. NICHOLS, P.C.
William M. Nichols
McAllister Plaza, suite 1250
9601 McAllister Freeway
San Antonio, Texas 78216-5150
Telephone: 210/340-8880
Facsimile: 210/340-8885
william@wmnlawsa.com

Counsel for Appellee United Biologics, LLC d/b/a United Allergy Services:

LAW OFFICES OF JOHN HENRY, P.C.
John P. Henry
407 West Liberty Street
Round Rock, Texas 78664
Telephone: 512/981-7301
Facsimile: 888/909-9312
jhenry@jhenrylaw.com

Trial Judge:

Hon. Jason Wolff
County Court at Law Number 2
300 Dolorosa Street
San Antonio, Texas 78205




                                 Appellant’s Brief
                                     Page ii
                                      TABLE OF CONTENTS

IDENTITIES OF ALL PARTIES AND THEIR COUNSEL ...................................ii

TABLE OF CONTENTS .........................................................................................iii

INDEX OF AUTHORITIES ....................................................................................v

REQUEST FOR ORAL ARGUMENT .....................................................................1

STATEMENT OF THE NATURE AND RESULT OF THE CASE .......................1

ISSUES PRESENTED ON APPEAL .......................................................................1

STATEMENT OF FACTS .......................................................................................1

ISSUE I (RESTATED) ............................................................................................3

ISSUE I:         The post-judgment filings by Appellant, attempting to act pro se, did not
                 constitute a motion for new trial so as to extend the time for perfecting
                 appeal

SUMMARY OF ARGUMENT (ISSUE I) ...............................................................3

ARGUMENT AND AUTHORITIES (ISSUE I) ......................................................4

ISSUE II (RESTATED) ............................................................................................5

ISSUE II:        Failure to comply with the requirements of TEX. R. CIV.
                 P. 108 renders this service of process fatally defective

SUMMARY OF ARGUMENT (ISSUE II) ..............................................................5

ARGUMENT AND AUTHORITIES (ISSUE II) .....................................................5

ISSUE III (RESTATED) ..........................................................................................7


                                              Appellant’s Brief
                                                  Page iii
ISSUE III: Failure to comply with the requirements of TEX. R. CIV.
           P. 107 renders this service of process fatally defective

SUMMARY OF ARGUMENT (ISSUE III) ............................................................7

ARGUMENT AND AUTHORITIES (ISSUE III) ..................................................7

CONCLUSION ........................................................................................................9

PRAYER ...................................................................................................................9

CERTIFICATE OF COMPLIANCE ......................................................................10

CERTIFICATE OF SERVICE ................................................................................10




                                                  Appellant’s Brief
                                                      Page iv
                                       INDEX OF AUTHORITIES

Cases

Doctor V. Pardue, 186 S.W.3d 4 (Tex. App. - Houston (1st Dist.) 2005, review
     denied) ............................................................................................................4

Finley v. J.C. Pace Ltd., 4 S.W.3d 319 (Tex. App.- Houston [1st Dist.] 1999,
      no pet.).............................................................................................................4

Grapevine Trucking, Inc. v. Shepherd, 366 S.W.2d 950 (Tex. Civ. App. - Fort Worth,
     1963, writ ref. n.r.e.) .......................................................................................8

Gutierrez v. Cuellar, 236 S.W. 497, 499 (Tex. Civ. App. - San Antonio 1922,
      no writ) ............................................................................................................6

Johnston v. Johnston, 575 S.W.2d 610 (Tex. Civ. App. - San Antonio 1978,
      no writ) ...........................................................................................................6

Mercer v. Band, 454 S.W.2d 833 (Tex. Civ. App. - Houston [14th Dist.] 1970,
     no writ) ............................................................................................................4

Primate Construction, Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) ........................8

Tullis v. Scott, 38 Tex. 537 (1873) ............................................................................8

Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App. - Fort Worth 1973,
     no writ) .........................................................................................................6,7

Shamrock Oil Co. v . Gulf Coast Natural Gas, Inc. 68 S.W.3d 737, 739 (Tex.- App. -
     Houston [14th Dist.] 2001, review denied) ....................................................7

Upham v. Boaz Well Service, Inc. 357 S.W.2d 411 (Tex. Civ. App. - Fort Worth
    1962, no writ) .................................................................................................6




                                                   Appellant’s Brief
                                                       Page v
Woodall v. Lansford, 254 S.W.2d 540 (Tex. Civ. App. - Fort Worth 1953,
    no writ) ............................................................................................................8

Statutes and Rules

TEX. R. CIV. P. 99(a) ............................................................................................7-8

TEX. R. CIV. P. 107 ..............................................................................................1,7

TEX. R. CIV. P. 108 ...........................................................................................1,5,6

TEX. R. CIV. P 120a(1) ............................................................................................2

TEX. R. APP. P. 25.1(d)(7) .......................................................................................5

TEX. R. APP. P. 26.1(c) ...........................................................................................5

TEX. R. APP. P. 30.................................................................................................1,5




                                                 Appellant’s Brief
                                                     Page vi
                       REQUEST FOR ORAL ARGUMENT

      Appellant requests oral argument.

      STATEMENT OF THE NATURE AND RESULT OF THE CASE

      This is a restricted appeal from a no answer default judgment in which no

motion for new trial was filed. See TEX. R. APP. P. 30.

                       ISSUES PRESENTED ON APPEAL

ISSUE I:     The post-judgment filings by Appellant, attempting to act pro se, did not

             constitute a motion for new trial so as to extend the time for perfecting

             appeal.

ISSUE II:    Failure to comply with the requirements of TEX. R. CIV. P. 108 renders

             this service of process fatally defective.

ISSUE III: Failure to comply with the requirements of TEX. R. CIV. P. 107 renders

             this service of process fatally defective.

                            STATEMENT OF FACTS

      This is a suit brought by Appellee against Appellant, a North Carolina

corporation, alleging breach of contract . (CR 5-8) Suit papers were served upon

Appellant’s registered agent, James H. Pridgen, M.D. in North Carolina. (CR 9) The

return describes the item served as a “copy of plaintiff’s petition.” (CR 9) It makes



                                   Appellant’s Brief
                                       Page 1
no mention of the individual serving being above the age of eighteen or not having

an interest in the case. (CR 9)

      Dr. Pridgen filed a “Special and Limited Appearance and Motion to Dismiss

for Lack of Personal Jurisdiction of Holly Ridge Healthcare, PA by its Registered

Agent, Pro Se”. (CR 10) This document was not verified. See TEX. R. CIV. P

120a(1). In response to Appellee’s objections to that special appearance, Dr. Pridgen

filed an “Amended Special and Limited Appearance and Motion to Dismiss for Lack

of Personal Jurisdiction of Holly Ridge Healthcare, PA by its Registered Agent, Pro

Se and Response to Plaintiff’s Motion Served on Defendant on February 14, 2015".

(CR 62) No answer was filed subject to the Special Appearances. The Amended

Special Appearance requested “an additional 60 days to file an answer or in the

alternative responsive pleading” in the event the plea to the jurisdiction was

overruled. (CR 66)

      On February 10, 2015, Appellee set Appellant’s Special Appearance for a

March 5, 2015 hearing, and served notice of that hearing on Dr. Pridgen by certified

mail. (CR 60-1) The trial court signed an Order denying the special appearance. (CR

74)

      On April 7, 2015, Appellee filed its Motion for Default Judgment. (CR 75)



                                  Appellant’s Brief
                                      Page 2
It states that Appellant has not filed an answer. (CR 76) There is no certificate of

service indicating service of that pleading on Appellant. It contains a Certificate of

Last Known Address. (CR 78)

      A default judgement was signed on July 9, 2015. (CR 133-5) The trial court

found that Appellant “did not file an answer or any other pleading constituting an

answer.” (CR 135)

      On August 10, 2015, Dr. Pridgen filed two more items: “Affidavit in Support

of Motion to Set Aside Default Judgment and Order”, and “Points and Authorities”.

(CR 136, 138) However, no motion for new trial or motion to set aside default

judgment was filed. The Points and Authorities cite the court to the Nevada Rules of

Civil Procedure. (CR 138) Both were signed: “James M. Pridgen, M.D., pro se on

behalf of Holly Ridge Healthcare”. (CR 137, 139)

      An answer was not filed by an attorney until August 12, 2015. (CR 145)

                              ISSUE I (RESTATED)

ISSUE I:     The post-judgment filings by Appellant, attempting to act pro se, did not

             constitute a motion for new trial so as to extend the time for perfecting

             appeal.

                    SUMMARY OF ARGUMENT (ISSUE I)



                                   Appellant’s Brief
                                       Page 3
      The two items filed by Dr. Pridgen following the entry of the default judgment

do not constitute a motion for new trial. Therefore, this case is properly brought as

a restricted appeal.

                 ARGUMENT AND AUTHORITIES (ISSUE I)

      The substance of a motion is not determined solely from its caption or

introduction, but instead is gleaned from the body of the motion and the prayer for

relief. Doctor V. Pardue, 186 S.W.3d 4, 16 (Tex. App. - Houston (1st Dist.) 2005,

review denied); Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. App.- Houston [1st

Dist.] 1999, no pet.). “For a new trial motion to have efficacy as such, it must, by the

very nature of such an instrument, seek to have an existing judgment set aside and

request a relitigation of the issues. An instrument nominally filed under the rules

applicable to new trials (Rules 320, 329, Texas Rules of Civil Procedure) must

comply with these minimum requirements or it is something other than a motion for

new trial.” Mercer v. Band, 454 S.W.2d 833, 836 (Tex. Civ. App. - Houston [14th

Dist.] 1970, n.w.h.).

      While Dr. Pridgen filed his Affidavit in Support of Motion to Set Aside Default

Judgment and Order, and his Points and Authorities, he filed nothing that was

captioned as a motion for new trial. Neither of the items he did file make a request or



                                    Appellant’s Brief
                                        Page 4
prayer for any relief.

       Having not participated in the trial court proceedings, either personally or

through counsel, and having filed no motion for new trial, the case was properly and

timely perfected as a restricted appeal on August 24, 2015. See TEX. R. APP. P.

25.1(d)(7); 26.1(c); & 30. (CR 147).1

                                  ISSUE II (RESTATED)

ISSUE II:      Failure to comply with the requirements of TEX. R. CIV. P. 108 renders

               this service of process fatally defective.

                      SUMMARY OF ARGUMENT (ISSUE II)

       The officer’s return of service on this North Carolina corporation served in

North Carolina does not establish that the person serving it was over eighteen years

old and had no interest in the case. Therefore, service was fatally defective and the

trial court had no jurisdiction over Appellant.

                  ARGUMENT AND AUTHORITIES (ISSUE II)

       Plaintiff’s Original Petition states that Appellant is a North Carolina

corporation, with its principal place of business and registered agent in that State.


       1
        In the event this Court determines that Appellant’s post-judgment filings
constituted a motion for new trial, their deficiencies notwithstanding, Appellant
alternatively perfected this appeal in a timely fashion. (CR 147) The issues before this Court
relating to effectiveness of service are identical.

                                        Appellant’s Brief
                                            Page 5
(CR 5) The Citation and Return confirm that the registered agent was served there.

(CR 9) As such, service of process must be accomplished under Rule 108 of the

Texas Rules of Civil Procedure, which provides in pertinent part:

     “Where the defendant is absent from the State, or is a nonresident of the
     State, the form of notice to such defendant of the institution of the suit
     shall be the same as prescribed for citation to a resident defendant; and
     such notice may be served by any disinterested person who is not less
     than eighteen years of age, in the same manner as provided in Rule 106
     hereof. The return of service in such cases shall be completed in
     accordance with Rule 107.”
TEX. R. CIV. P. 108.

      The Officer’s Return lacks any mention that the service was made “by [a]

disinterested person who is not less than eighteen years of age.” When citation is

directed to a non-resident defendant, it is mandatory that the return of the person

making service upon that defendant show that he is in no manner interested in the

cause in question, and a return of citation lacking such is “fatally defective.” Scucchi

v. Woodruff, 503 S.W.2d 356, 358-9 (Tex. Civ. App. - Fort Worth 1973, no writ);

Upham v. Boaz Well Service, Inc. 357 S.W.2d 411, 418 (Tex. Civ. App. - Fort Worth

1962, no writ). See Johnston v. Johnston, 575 S.W.2d 610, 612 (Tex. Civ. App. - San

Antonio 1978, no writ).

      “It is well settled that [rules] prescribing the essentials of a citation are

mandatory and must be strictly construed, and that, unless the citation be in


                                    Appellant’s Brief
                                        Page 6
substantial compliance with these statutory requirements, it will not support a

judgment by default.” Gutierrez v. Cuellar, 236 S.W. 497, 499 (Tex. Civ. App. - San

Antonio 1922, n.w.h.). Being fatally defective, this citation will not support this

default judgment. Scucchi v. Woodruff, supra.

                             ISSUE III (RESTATED)

ISSUE II:    Failure to comply with the requirements of TEX. R. CIV. P. 107 renders

             this service of process fatally defective.

                   SUMMARY OF ARGUMENT (ISSUE III)

      Citation is further defective because the Officer’s Return does not correctly

describe the items served.

                ARGUMENT AND AUTHORITIES (ISSUE III)

      Rule 107 requires that the return must include “a description of what was

served....” TEX. R. CIV. P 107(b)(3). In the instant case, what the return describes

is a “copy of plaintiff’s petition.” (CR 9) However, the court’s file shows that the

document filed was “Plaintiff’s Original Petition & Request for Disclosure.” (CR 5)

      Although Rule 107 does not expressly require the return of service to list

documents served with the citation, unless it does so it is impossible to tell if there

has been compliance with the service rules. Shamrock Oil Co. v . Gulf Coast Natural



                                   Appellant’s Brief
                                       Page 7
Gas, Inc. 68 S.W.3d 737, 739 (Tex.- App. - Houston [14th Dist.] 2001, review

denied). “Upon the filing of the petition, the clerk, when requested, shall forthwith

issue a citation and deliver the citation as directed by the requesting party.” TEX. R.

CIV. P. 99(a). It is the responsibility of the one requesting service, not the process

server, to see that service is properly accomplished. Primate Construction, Inc. v.

Silver, 884 S.W.2d 151, 153 (Tex. 1994). In that case -- in which a default judgment

was reversed because the citation, as here, incorrectly described the document served

upon defendants -- the Court explained: “This responsibility extends to seeing that

service is properly reflected in the record. The Rules of Civil Procedure allow for

liberal amendment of the return of service to show the true facts of service. [Citation

omitted.] If the facts as recited in the sheriff's return, pre-printed or otherwise, are

incorrect and do not show proper service, the one requesting service must amend the

return prior to judgment.” Id. No such amendments appear in this record.

      Few holdings are as well established in Texas jurisprudence as this: No

presumptions will be indulged to aid a return on a citation in order to support a

judgment by default. E.g., Tullis v. Scott, 38 Tex. 537, 542 (1873); Woodall v.

Lansford, 254 S.W.2d 540, 543 (Tex. Civ. App. - Fort Worth 1953, n.w.h.);

Grapevine Trucking, Inc. v. Shepherd, 366 S.W.2d 950, 952 (Tex. Civ. App. - Fort



                                    Appellant’s Brief
                                        Page 8
Worth, 1963, ref., n.r.e.). Since compliance is not shown on its face, the default

judgment cannot stand.

                                   CONCLUSION

      Appellant has properly presented to this Court as a restricted appeal two bases

for reversal resulting from fatally defective service.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

reverse the judgment of the trial court and remand the case to that court; tax all costs

over and against Appellee; and for all further relief, at law or in equity, to which it

may show itself justly entitled.

                                        Respectfully submitted,

                                        WILLIAM M. NICHOLS, P.C.
                                        McAllister Plaza, Suite 1250
                                        9601 McAllister Freeway
                                        San Antonio, Texas 78216-5150
                                        Telephone: 210/340-8880
                                        Facsimile: 210/340-8885
                                        william@wmnlawsa.com


                                        By:     /s/ William M. Nichols
                                        William M. Nichols
                                        State Bar No. 15006800
                                        ATTORNEY FOR APPELLANT



                                    Appellant’s Brief
                                        Page 9
                      CERTIFICATE OF COMPLIANCE

       I certify that according to the word count of the WordPerfect program used to
create this brief the total number of words contained in pages 1 through 9, beginning
with the Statement of Facts on page 1, through the Prayer on page 9 is 8836.

                                                /s/ William M. Nichols
                                               William M. Nichols

                         CERTIFICATE OF SERVICE

       I, William M. Nichols, do certify that a true and correct copy of the foregoing
pleading was sent by email to Mr. John P. Henry, Law offices of John Henry, P.C.,
407 West Liberty Street, Round Rock, Texas 78664 (jhenry@jhenrylaw.com) on this
7th day of October, 2015.


                                                /s/ William M. Nichols
                                               William M. Nichols




                                   Appellant’s Brief
                                      Page 10
