                                                                        ACCEPTED
                                                                    01-15-00355-CV
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                              8/31/2015 10:39:43 AM
                                                              CHRISTOPHER PRINE
                                                                             CLERK


            ORAL ARGUMENT REQUESTED

                 NO: 01-15-00355-CV
                     01-13-01005-CV                FILED IN
                                            1st COURT OF APPEALS
                                                HOUSTON, TEXAS
                                            8/31/2015 10:39:43 AM
             IN THE COURT OF APPEALS        CHRISTOPHER A. PRINE
                                                     Clerk

          FOR THE FIRST DISTRICT OF TEXAS


            B & SONS CONSTRUCTION LLC

                      Appellant

                         v.

               ROOD HOLDINGS, LLC

                      Appellee


              BRIEF OF THE APPELLANT


PETER COSTEA
TBN 04855900
Three Riverway, Suite 1800
Houston, Texas 77056
Tel. 713-337-4304
Fax 713-659-5302
ATTORNEY FOR APPELLANT
B & SONS CONSTRUCTION LLC
                         IDENTITY OF PARTIES AND COUNSEL

Appellant:   B & SONS CONSTRUCTION LLC

Counsel:     Peter Costea
             Three Riverway, Suite 1800
             Houston, Texas 77056
             Tel. 713-337-4304
             Fax 713-659-5302
             Email: peter@costealaw.com


Appellee:    ROOD HOLDINGS LLC

Counsel:     Christina R. Johnson
             Gregory T. Brewer
             FIDELITY NATIONAL LAW GROUP
             5151 Beltway Road, Suite 410
             Dallas, Texas 75254
             Tel. 972-812-9400
             Fax 972-812-9408
             Email:       Christina.j ohnson@fnf.com


Trial Court: Hon. Alexandra Smoots-Hogan, Judge Presiding
             164th Judicial District Court
             Harris County Civil Courthouse
             201 Caroline, Twelfth Floor
             Houston, Texas 77002
             Tel. 713-368-6264




                                     1.
                                                 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES .................................... i

TABLE OF CONTENTS ............................................................ ii

TABLE OF AUTHORITIES .......................................................                                           111


STATEMENT OF THE CASE ....................................................                                             1

ISSUES PRESENTED.............................................................. 2

STATEMENT OF FACTS .......................................................... 3

         The Underlying Suit .......... ........ ... ...... ...... ... ....... ... .... ...... ......... ... .......   3

         Service of Process and B & Sons........................................................ 4

STANDARD OF REVIEW..........................................................................                           6

SUMMARY OF THE ARGUMENT AND
ARGUMENT ................................................................................................              7

         Motion for New Trial. ...... ......... ......... ......... ........................ ..............            7

         No Service of Process Was Accomplished .........................................                              7

         The Law ..............................................................................................        9

CONCLUSION: .....................................................................                                      14

PRAYER ............................................................................... 14

CERTIFICATE OF SERVICE ...................................................... 14

CERTIFICATE OF COMPLIANCE .............................................. 15

APPENDIX.. ...... ............... ..... ................. ............................ ............. .............     16

                                                           11.
                                TABLE OF AUTHORITIES

CASES

Alexander v. Lynda's Boutique, 134 SW3d 845 (Tex. 2004) .......................                   10

Cliffv. Huggins, 724 SW2d 778 (Tex. 1987) ..............................................         6

Comm's of Contracts v. Arriba Ltd, 882 SW2d 576
    (Tex.App.-Houston [1st Dist.] 1994) .................................................... 13

Evans v. Woodward, 669 SW2d 154 (Tex.App.-Dallas 1984) ...................... 12

Fidelity and Guaranty Insurance Company v. Drewery Construction
Company, 186 SW3d 571 (Tex. 2006) .......................................................... 7

Goode v. Shoukfeh, 943 SW2d 441 (Tex. 1997) ........................................... 6

Jaco v. Rivera, 278 SW3d 872-873
      (Tex.App.-Houston[14th Dist.] 2009) ................................................        10

Lara v. Rosales, 159 SW3d 121
      (Tex.App.-Corpus Christi 2004) .......................................................... 11

Levine v. Shackelford, Melton & McKinley, LLP,
      248 SW3d 166 (Tex. 2008) ................................................................. 11

L.M. Healthcare, Inc. v. Childs, 929 SW2d 442 (Tex. 1996) ........................ 7

Martinez v. Valencia, 824 SW2d 719 (Tex.App.-EI Paso 1992) ................... 11

Mathis v. Lockwood, 166 SW3d 743 (Tex. 2005) ......................................... 6

Peralta v. Heights Medical Center, Inc.,
       485 US 80,108 S.Ct. 896,99 L.Ed2d 75 (1988) .................................. 9

PNS Stores, Inc. v. Rivera, 379 SW3d 3d 267 (Tex. 2012) ........................... 10

Royal Surplus Lines Insurance Company v. Samaria Baptist Church,
      840 SW2d 382 (Tex. 1992) ................................................................... 13
                                             111.
State Farm Life Insurance Company v. Mosharaf,
       794 SW2d 578 (Tex.App.-Houston [1st Dist.] 1990) .......................... 12

Strackbein v. Prewitt, 671 SW2d 37 (Tex. 1984) ............................................ 6

Taylor v. State, 293 SW3d 913 (Tex.App.-Austin 2009) ............................... 13

Titan Indemnification Company v. Old Southern Insurance Group, Inc.,
       221 SW3d 703 (Tex.App.-San Antonio 2006) ..................................... 7

Triad Contractors, Inc. v. Kelly,
      809 SW2d 683 (Tex.App.-Beaumont 1991) ........................................ 12

Wood v. Brown, 819 SW2d 799 (Tex. 1991) ................................................. 7




                                              IV.
                     ORAL ARGUMENT REQUESTED

                            NO: 01-13-01005-CV


                       IN THE COURT OF APPEALS

                   FOR THE FIRST DISTRICT OF TEXAS


                     B & SONS CONSTRUCTION LLC

                                  Appellant

                                     v.

                          ROOD HOLDINGS, LLC

                                  Appellee


                        BRIEF OF THE APPELLANT


TO THE HONORABLE COURT OF APPEALS:

     Appellant B & Sons Construction LLC ("B & Sons") respectfully moves the

Court of Appeals to Reverse the Final Judgment of Default signed by the Trial

Court against B & Sons and in favor of Rood Holdings LLC ("Rood") on January

22,2015. (Tab B)

                       STATEMENT OF THE CASE
Page 2

      This case began on October 10, 2013 as an action for breach of contract and

related claims by United Rentals (North America), Inc. ("United") against various

parties, including Rood Holdings, LLC, Appellee. (CR 3-12)

      On April 8, 2014 Rood countersued United to quiet title and for declaratory

judgment. (CR 26-70)

      On April 28, 2014 Rood filed a Third Party Petition against B & Sons

Construction LLC and other parties. The cause of action against B & Sons was to

quiet title and for declaratory judgment. (SCR 69-80)

      On November 17,2014 Rood filed a Motion for Default Judgment against B

& Sons. (CR 96-102)

      On December 10, 2014 the Trial Judge signed            an Order of Default

Judgment against B & Sons. (CR 105-107) (Tab A)

      On January 22, 2015 the Trial Judge signed an Order dismissing certain

Defendants and making the December 10, 2014 Interlocutory Default Judgment

against B & Sons "final and appealable." (CR 108-109) (Tab B)

      On February 10, 2015 B & Sons filed a Motion for New Trial which the

Trial Judge denied on March 11,2015. (CR 112-120, 126) (Tab C)

      B & Sons timely appealed on April 18, 2015. (CR 127-128) (Tab D)

                                ISSUES PRESENTED
Page 3

      Did the Trial Court err in refusing to set aside the default judgment?

                                STATEMENT OF FACTS

The Underlying Suit

      This action was filed originally on October 10, 2013 by United against VR

Wood ("Wood"), the owners and principals of VR Wood, and Rood. (CR 3-12)

United claimed it sold, rented, or delivered to Wood goods and equipment for

which Wood did not pay and remained delinquent as of the time the suit was filed.

United further claimed that the goods and equipment it sold Wood had been used

by Wood to build an industrial park at 11810 Messa Drive in Houston, Texas.

United placed a lien on the industrial park which at some point was sold to Rood.

Rood took over the industrial park subject to United's lien. Thereafter, United

looked to Rood to secure payment for the goods and equipment it sold to Wood.

Rood failed to pay, and United sued Rood on October 10, 20l3. (CR 3-12)

      B & Sons did the construction work on the industrial park for which it was

not paid. Accordingly, on February 14, 2013 it filed a Mechanic's and

Materialman's Lien on the property, valued at $430,329.00. (CR 55-58) By

February 14, 2013 the owner of the property was Rood.

      On April 28, 2014 Rood sued B & Sons. (SCR 69-80) It alleged that on

January 15,2013 it purchased the property where the industrial park was located.
Page 4

(CR 78) On February 14,2013 B & Sons filed its lien (CR 55-58), but United only

filed its lien on May 20, 2013. (CR 79, 60-62) Rood sued B & Sons to quiet title

and to remove the cloud on the property. It alleged that "a genuine dispute exists as

to the title of the Property," as between Rood and B & Sons. (CR 83) Its action was

also denominated as one for declaratory judgment seeking to have the court declare

Rood as "the legal or equitable owner of the Property." (CR 84)

Service of Process on B & Sons

      Rood attempted to serve B & Sons. Rood's Third Party Petition recited that

B & Sons' registered office was located at 600 Shane Street, Houston, Texas

77037, and that the Registered Agent at that address was Larry Pham. (SCR 70)

      On September 10, 2014 Rood filed a Motion for Substituted Service on B &

Sons, claiming that it had been unsuccessful in serving B & Sons in June 2014.

Three (3) service attempts were made at 600 Shane Street and four (4) at 522

Shane Street where the process server believed Pham resided. The process server

averred in his July 2, 2014 Affidavit in Support of Motion for Alternate Service, he

believed service should be had at 522 Shane Street. (SCR 8) ("It is my belief that"

B & Sons "would receive effective notice of this suit by leaving a copy of the

Citation ... with anyone over the age of sixteen ... at place of abode 522 Shane

Street, Houston, Texas 77037") (SCR 8)
Page 5

      However, on September 24,2014 the court signed an Order granting Rood's

Motion for Substituted Service directing, without explaining, that service be had at

600 Shane Street, not 522 Shane Street, by leaving the citation and petition at that

address with anyone over the age of sixteen (16); by posting a copy of the petition

and citation at that address; and by mailing by certified mail "and/or" regular mail

a copy of the citation and petition at that address. (CR 90-92) (Tab E)

      On November 17,2014 Rood filed a Motion for Default Judgment against B

& Sons. It claimed on October 13, 2014 its process server "personally" delivered

the citation and petition to Pham, "by posting a copy of the citation" and the

petition to the front door at 600 Shane Street. (CR 93, SCR 122, Affidavit of Larry

Rodriguez). Apparently, no service was attempted, as ordered by the court, by

certified mail, regular mail, or by leaving the citation and the petition with anyone

over the age of sixteen (16) at that address. Notably, the Affidavit of Larry

Rodriguez does not state that Pham was served "personally." (CR 93, SCR 122)

      On December 10, 2014 the court signed an Order Granting Default

Judgment as to Third Party Defendant B & Sons Construction LLC. (CR 105-107;

Tab A) The court's December 10,2014 Order stipulated that the default judgment

was not "final and not appealable." (CR 107)
Page 6

      On January 22, 2015 the court signed another Order dismissing Wood from

the suit without prejudice. However, the court's January 22, 2015 Order also stated

that the "Interlocutory Default Judgment against B & Sons Construction entered on

December 10,2014" was "Final and Appealable." (CR 108-109; Tab B)

      On February 10, 2015 B & Sons filed a Motion for New Trial (SCR 132-

150) supported by the Affidavit of Larry Pham. (SCR 148-150) Pham's Affidavit

explained that he had not been served with process, nor was he alerted by anyone

at either 600 Shane Street or 522 Shane Street that a process server had been

looking for him or that any legal documents had been seen, found, or affixed on the

door of the property at 600 Shane Street.

                                STANDARD OF REVIEW

      A trial court's denial of a motion for new trial is reviewed for abuse of

discretion. Strackbein v. Prewitt, 671 SW2d 37, 38 (Tex. 1984). An abuse of

discretion occurs when the trial court acts without reference to any guiding rules or

principles. Goode v. Shoukfeh, 943 SW2d 441, 446 (Tex. 1997). To set aside a

default judgment and receive a new trial the defendant need only show that his

failure to appear was not the result of intentional disregard or conscious

indifference. Cliff v. Huggins, 724 SW2d 778, 779 (Tex. 1987); Mathis v.

Lockwood, 166 SW3d 743,746 (Tex. 2005).
Page 7

            SUMMARY OF THE ARGUMENT AND ARGUMENT

Motion for New Trial

      A default judgment may be attacked by way of a motion for new trial. L.M.

Healthcare, Inc. v. Childs, 929 SW2d 442, 443 (Tex. 1996). Where a defendant is

not served with citation and the petition, the default judgment is to be set aside.

Wood v. Brown, 819 SW2d 799 (Tex. 1991) ("A default judgment cannot

withstand direct attack by a defendant who complains that he was not served in

strict compliance with applicable requirements. ") Also, the trend in Texas

jurisprudence is toward liberally granting new trials following default. Titan

Indemnification Company v. Old Southern Insurance Group, Inc., 221 SW3d 703,

708 (Tex.App.-San Antonio 2006). Likewise, the Texas Supreme Court has ruled

that a default judgment must generally be set aside without further showing where

the defendant never received service of process. Fidelity and Guaranty Insurance

Company v. Drewery Construction Company, 186 SW3d 571,574 (Tex. 2006).

No Service of Process Was Accomplished

      According to the Affidavit of Larry Pham, B & Sons was never served with

the citation or the petition. (SCR 148-150) Neither he nor anyone at 600 Shane

Street saw the citation or the petition affixed to the door at 600 Shane Street. Pham

does not reside at that address. No employees ofB & Sons work there. The house
Page 8

at 600 Shane Street is inhabited by Pham's uncle and his grandmother. His

grandmother is old, in her 80s, and does not read or speak English. Moreover, it

would have been impossible for the process server to post the citation and petition

on the front door at 600 Shane Street because the front door of the house is about

30 feet from the gate. To reach the house, the process server would have had to go

through the gate and the gate was kept locked. (SCR 148-149) Yet, the Affidavit of

Joseph Rodriguez states he posted the citation and petition "to the front door at 600

Shane Street," not on the iron gate. Likewise, but unexplainably, Rood's Motion for

Default affirmatively states that Pham was served "personally." (CR 93, SCR 122)

He was not.

      It is not clear from the process server's Affidavit how the citation and

petition ended up being posted or fastened to the door as opposed to the gate. It is

possible that certain individuals may have found the documents but did not

understand their significance because they did not read or speak English. It also is

possible the citation and petition may have fallen to the ground, or been swept

away by the wind or rain. This is a possibility since the citation and petition were

not posted in a place as to protect them against the wind or the weather. It also is to

be noted that the posting by the process server was done late at night, at 7:30 p.m.

This allows for the possibility that the citation and the petition may not have been
Page 9

visible to the person or persons who opened the door or the gate. Regardless of

what might have occurred, it is clear that neither the citation nor the petition

reached Pham. Noone reported to him the existence on the property, or the finding

on the property, of any legal documents related to this suit. Likewise, he did not

find a business card or notification from the process server on the door at 600

Shane Street or 522 Shane Street. Nor was he presented with any such business

card or notification by anyone on the premises. (SCR 148-149)

      As for the phone number which the process server claims he tried to reach

Pham, it had not been in use for about three (3) years. (SCR 149)

      Suffices to conclude then that the citation and petition never reached Pham.

Nor was he served "personally" as the Motion for Default Judgment stated. He

only became aware of the suit after December 10, 2014 when the clerk of the court

mailed a notice to 600 Shane Street that a default judgment had been taken against

B & Sons. (SCR 149)

The Law

      The US Supreme Court has ruled that "a judgment entered without notice or

service is constitutionally infirm." Peralta v. Heights Medical Center, Inc., 485 US

80, 108 S.Ct. 896, 99 L.Ed2d 75 (1988). The Texas Supreme Court relied on

Peralta to hold that a default judgment" is void if the defects in service are so
Page 10

substantial that the defendant was not afforded due process." PNS Stores, Inc. v.

Rivera, 379 SW3d 3d 267, 375 (Tex. 2012). Here, Rood did not serve B & Sons

with citation or petition, or with the motion for default, or with the notice of

hearing on its motion for default. Had Rood done so, it could have alerted B &

Sons of the pending litigation against it.

      In Alexander v. Lynda's Boutique, 134 SW3d 845, 848 (Tex. 2004), the

Texas Supreme Court ruled that "there are no presumptions in favor of valid

issuance, service, and return of citation." In 2006 the Texas Court revisited the

issue in Fidelity, supra. It attempted to simplify matters by asking a very simple

question that goes to the crux of how default judgments can be taken and how they

are to be set aside: "these procedures focus on what has always been and always

should be the critical question in any default judgment 'Why did the defendant not

appear?' ... If the answer to this critical question is 'Because I didn't get the suit

papers,' the default generally must be set aside." Id at 572.

      B & Sons answers this "critical question" as follows: "I didn't get the suit

papers." (See Affidavit of Larry Pham, SCR 148-150) Hence, the default judgment

of December 10, 2014 taken against it should be set aside. Jaco v. Rivera, 278

SW3d 872-873 (Tex.App.-Houston[14th Dist.] 2009) (where the defendant is not

served the default judgment must be set aside)
Page 11

      Fidelity is further relevant in additional respects. The Fidelity defendant had

actually been served through its registered agent but the "suit papers" had been lost

or misplaced in transit from the agent to the defendant. Fidelity's motion for new

trial had been denied and the court of appeals affirmed. However, the Texas Court

reversed. It recited a number of cases where it "has often set aside default

judgments when papers were misplaced, though no one knew precisely how."

Essentially, Fidelity established a fairly liberal standard for setting aside default

judgments. It concluded its analysis by stating that "an excuse [for setting aside a

default judgment] need not be good to suffice." At the opposite end, the standard

for affirming default judgments is conscious indifference not negligence. Levine v.

Shackelford, Melton & McKinley, LLP, 248 SW3d 166, 168 (Tex. 2008). Even a

"slight excuse" may justify granting a new trial. Lara v. Rosales, 159 SW3d 121,

124 (Tex.App.-Corpus Christi 2004).

      There is evidence that some of the individuals residing at 600 Shane Street

did not speak English. One court has found this particularity sufficient to set aside

a default judgment. Martinez v. Valencia, 824 SW2d 719 (Tex.App.-EI Paso 1992)

(defendants, who were unable to read English, mistakenly believed the suit papers

related to a pending settlement).
Page 12

      Similarly, there is the potential that the citation and petition might have been

lost. This is another circumstance under which a default judgment may be set

aside. Triad Contractors, Inc. v. Kelly, 809 SW2d 683, 684 (Tex.App.-Beaumont

1991) (citation and petition were lost in the insurer's office).

      Default judgments have also been set aside even where the suit papers were

lost while in the custody or possession of sophisticated persons. State Farm Life

Insurance Company v. Mosharaf, 794 SW2d 578, 582 (Tex.App.-Houston [1st

Dist.] 1990) (papers misrouted in the insurer's office and mistakenly filed without

being reviewed); Evans v. Woodward, 669 SW2d 154, 155 (Tex.App.-Dallas

1984) ("confusion" in the attorney's office).

      The cases the Texas Supreme Court cited in Fidelity in setting aside default

judgments were cases where defendant had actually been served with the "suit

papers," but the "suit papers" had been lost or misplaced.

      The situation is even more excusable here: B & Sons had never been served.

B & Sons first learned of the existence of the suit after receiving the notice of

default judgment from the court and then acted promptly to protected itself against

the default judgment becoming enforceable.

      Rood has not presented any controverting evidence to Pham's rendition of

the events supporting the conclusion that he had not been served.
Page 13

      It also bears emphasizing that service in this case was not by personal

delivery on Larry Pham, but by substitute service. Texas law prefers personal

service over substituted service. Taylor v. State, 293 SW3d 913, 915-915

(Tex.App.-Austin 2009) The trial judge's September 24,2014 Order for Substituted

Service identified four methods of substituted service. (CR 94-95) Rood's Motion

for Default states, erroneously, that Rood served B & Sons on October 13,2014 by

"personally delivering" the citation and petition to Pham "by posting a copy of the

citation ... to the front door at 600 Shane Street, Houston, Harris County, Texas

77037." Rood could not have served B & Sons both by personally serving Pham

and, additionally, by posting the citation on the door. Pham's Affidavit clearly

states he was not served personally. (SCR 148-150) And the affidavit of the

process server does not indicate that Pham was served personally either, only that

the citation was posted on the front door of the house. (CR 93, SCR 122)

   Notably as well, substituted service was not attempted at 522 Shane Street

where the process server believed Pham resided, but at 600 Shane Street.

Substituted service might have worked had it been attempted at 522 Shane Street

where Pham lives. (SCR 149) See, Comm's of Contracts v. Arriba Ltd, 882 SW2d

576, 586-589 (Tex.App.-Houston [1st Dist.] 1994) (default judgment set aside

when wrong address was used for substituted service); Royal Surplus Lines
Page 14

Insurance Company v. Samaria Baptist Church, 840 SW2d 382, 383 (Tex. 1992)

(default judgment based on substituted service set aside because citation was sent

to the wrong address).

                                 CONCLUSION

      B & Sons was not served with the suit. The trial judge erred in denying B &

Sons' Motion for New Trial and in failing to set aside the default judgment.

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, B & Sons respectfully moves
the court of appeals to reverse the denial of its Motion for New Trial.

                                 Respectfully submitted,

                                 BY: // ss// peter costea

                                 TBN 04855900
                                 Three Riverway, Suite 1800
                                 Houston, Texas 77056
                                 Tel. 713-337-4304
                                 Fax 713-659-5302
                                 ATTORNEY FOR APPELLANT
                                 B & SONS CONSTRUCTION, LLC

                                 CERTIFICATE OF SERVICE

       I certify that on August 29, 2015 a true and correct copy of the foregoing
pleading was served electronically by the clerk of the court on counsel for all
parties, Ms. Christina R. Johnson, Fidelity National Law Group, 5151 Beltline
Road, Suite 410, Dallas, Texas 75254; and Mr. Tracey L. Cloutier, Matthews,
Stein, Shiels, Knott, Eden & Davis LLP, 8131 LBJ Freeway, Suite 700, Dallas,
Page 15

Texas 75251.


                               //ss// peter costea

                                      Peter Costea

                         CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(B) and Local Rule
32.3, the undersigned certifies:

       1.     This Brief complies with the type-volume limitations of Texas Rule of
Appellate Procedure 9.4(i)(2)(B) because: it contains 2,962 words, excluding the
parts of the Brief exempt by Texas Rule of Appellate procedure 9.4(i)(2)(B).

       2.     The undersigned has provided an electronic version of the Brief to
both the court and opposing counsel. If the Court requests, a copy of the word or
line printout will be provided.

      3.    The undersigned understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Texas
Rule of Appellate Procedure 9.4(i)(2)(B) may result in the Court striking the Brief
and imposing sanctions against the person signing the Brief.

                                      //ss// peter costea

                                      Peter Costea
Page 16

                              APPENDIX

      1.    Order Granting Default Judgment as to Third Party Defendant B &
Sons Construction LLC (December 10,2014) (Tab A)

      2.     Order Granting Rood Holdings, L.L.C.'s Motion to Dismiss Third
Party Defendant VNF Inc. d/b/a VR Wood Inc. and Son Kim Nguyen Without
Prejudice (January 22,2015) (Tab B)

      3.    Order Denying Motion for New Trial of Third Party Defendant B &
Sons Construction, LLC (March 11, 2015) (Tab C)

      4.    The Notice of Appeal of Third Party Defendant B &              Sons
Construction LLC (April 18, 2015) (Tab D)

      5.     Order Granting Third Party Plaintiff Rood Holdings, L.L.C.'s Motion
for Substituted Service on Third-Party Defendant B & Sons Construction, LLC
(September 24,2104) (Tab E)
                                                                                    11117/20143.28.54 PM
                                                                                    Chris Daniel· District Clerk
                                                                                    Harris County
                                                                                    Envelope No' 3203018
                                                                                    By WILLIAMS, CHANDA D
                                         CAUSE NO. 2013-60986

UNITED RENTALS (NORTH
AMERICA), INC.,
                                                    §
                                                    §
                                                          IN THE DISTRICT COURT
                                                                                                      ..
                                                                                                        yJJ
                                                    §
        Plaintiff,                                  §
                                                    §
"S.                                                 §
                                                    §
VR WOOD, INC., HUONG KIM                            §
NGUYEN, also known as HUONG                         §
K. NGUYEN, also known as                            §
HUONG NGUYEN,                                       §
INDIVIDUALLY, and ROOD                              §     164 Til JUDICIAL DISTRICT
HOLDINGS, L.L.C.                                    §
                                                    §
        Defendan ts,                                §
                                                    §
VS.                                                §
                                                   §
Vl\TF INC. d/bfa VR WOOD INC.,                     §
SON KIM NGUYEN, and B &                            §
SONS CONSTRUCTION, LLC,                            §
                                                   §
        Third Party Defendants.                    §      HARRIS COUNTY, TEXAS


                      ORDER GRANTING DEFAULT JUDGMENT AS TO
                  THIRD PARY DEFENDANT B & SONS CONSTRUCTION, LLC


        Be It remembered that on thIS date _ _ _ _ _ _ _ _ , ThIrd Party Plaintiff, Rood

Holdings, L.L.C 's MotIon for Default Judgment Agamst ThIrd PaIiy Defendant B & Sons

Construction, LLC came to be heard        In   the above-entItled and numbered cause The Court finds

that Third Party Defendant B & Sons ConstructIon, LLC was properly served by citatIOn III the

manner prescnbed by law and that the proof of service has been on fi le WIth the Clerk of Court at

least ten days, excludll1g the day of filmg and today             The Court, upon considel ation of

pleadings, officlal records on file in thiS cause, and the eVidence tendered by Thlrd Palty

Plamtlff,   IS   of the opinion that default Judgment should be rendered for Plamtlff

            The Court finds that as a result of Defendant B & Sons ConstructIon, LLC's faLlure to




                                                                                         RECORDER'S D!I~~NOUM
                                                                                         ThiS mstrumem Ii ~r qualily
                                                                                              at the time of Imagmg
answer. he has admitted the factual allegatwns   In   ThIrd Party Plamtlffs Odginal Third PaIiy

Petltlon SpecIfically, B & Sons ConstructlOn, LLC has admitted the followmg

         a.        This lawsUIt concerns competmg claims to real property legally descnbed as.

                      AU that certain 86.01 acre tract of land situated in the
                      Whitney Britton Survey, Abstract No. 117, Harris County,
                      Texas, our of and a part of Blocks Nineteen (19) and
                      Twenty (20), of HOUSTON SUBURBAN HEIGHTS, a
                      subdivision in Harris County, Texas according to the map
                      or plat thereof, recorded in Volume 3, Page 10, of the Map
                      records of Harris County, Texas.
("Property"),

         b R o o d Holdmgs, L.L C owns an mtelest in the Property VIa Its January 15,

2013 purchase from VNF, Inc Rood Holdings, L L C 's Genelal Warranty Deed was lecorded

on January 17, 2013   In   the Official Publtc Records of Hanis County and havmg document

number 20130025105,

          c.        B & Sons ConstructIOn, LLC claIms an interest          In   the Property that    IS


adverse to Rood Holdmgs, L L C ,

         d         At the time Rood Holdtngs, L L C pUJ chased the Property, 1t dId not have

actual or constructIve knowledge that B & Sons ConSTIUctlOn, LLC claImed any mterest          J[]   the

Property as B & Sons Construction, LLC dId not file Its MecbaI1lc and Matenalman's LIeD

Affidavit unttl February 14, 2013 WIth the Haws County Clerk (Document Number

20 130071709) approxImately a month aftel Rood HoldIngs, L L C purchased the Property,

 2.     On Plaintiffs clalln for qUiet title against B & Sons Construction, LLC, the Court

 fmds as follows

      IT IS DECLARED that Thud Party Plall1tlff, Rood Holdll1gs, L L C holds the superiol

 interest m and to the Property,

      IT IS FURTHER DECLARED that Rood Holdings, L L C                IS   the legal or equItable

 owner of the Property;




                                                                                                    106
        IT IS FURTHER DECLARED that title to the PJOperty IS qUIeted m ThIrd Party

Plamtlff, Rood Holdmgs, L L C                 '5   name alone, as against the claIms of B & Sons

ConstructIOn, LLC's and that the Mechamc and Matenalman's LIen AffidavIt filed on

February 14,2013 wIth the Hams County Clelk (Document No. 20130071709)                                  IS   vOld and

does not encumber the Property,

        IT IS ORDERED that a copy of Lhis Default Judgment be recOlded                         In   the officIal real

plopeliy recOId of Harns County, Texas, and

      IT IS ORDERED that Rood Holdings, L L C                        IS   entItled to reasonable and necessary

attorney's fees   in     the followmg amounts'

                   •       $2,092 50 through the conclUSIOn of tl1JS cause          In   the tnal court,

                   1/1     $10,000 00 tn the event of an unsuccessful appeal by the B & Sons

                           ConstructIOn, LLC to the COllrt of Appeals,

                   I)      $5,00000    In    the event of an unsuccessful PetitIon for ReVIew                  lTI   the

                           Texas Supreme Court by the Defendant's and

                   e       $5.00000    Il1   the event of an oral argument m the Texas Supreme COUlt

                           In   whIch Rood Holdmgs, L L C prevaIls

       ThIS Default Judgment, by itself,            IS   not final and not appealable, and does not dIspose

of all claims and paliies in this lltlgation To             WIt,   ThIrd Party PlamtIff still has outstandmg

claims agaInst ThIrd Party Defendants VR Inc d/b/a VR Wood Inc. and Son KIm Nguyen


                                                                                            OtC 1 0 2014
                                                                                   ,2014.




                                                                                                                      107
TA
                                                                                            1/16/20153:33:14 PM
                                                                                            Chris Damel • District Clerk
                                                                                            Harris County
                                                                                            Envelope No' 3802905
                                                                                            By' HENDERSON, MARCELLA L

                                      CAUSE NO. 2013-60986

UNITED RENTALS (NORTH                         §       IN THE DISTRICT COURT
AMERICA), INC.,                               §
                                              §
         Plaintiff,                           §
                                              §
VS.                                           §
                                              §
VR WOOD, INC., HUONG KIM                      §
NGUYEN, also known as HUONG                   §
K. NGUYEN, also known as                      §
HUONG NGUYEN,                                 §
INDIVIDUALLY, and ROOD                        §       164 TH JUDICIAL DISTRICT
HOLDINGS, L.L.c.                              §
                                              §
         Defendants,                          §
                                              §
VS.                                           §
                                              §
VNF INC. d/bla VR WOOD INC.,                  §
SON KIM NGUYEN, and B &                       §
SONS CONSTRUCTION, LLC,                       §
                                              §
         Third Party Defendants.              §       HARRIS COUNTY, TEXAS

      ORDER GRANTING ROOD HOLDINGS, L.L.C'S MOTION TO DiSMISS THIRD-
      PARTY DEFENDAl\TTS VNF INC. d/b/a VR WOOD INC. AND SON KIM NGUYEN
                            WITHOUT PREJUDICE

         On thiS Day, _ _ _ _ _ _ _ , 2015, came to be considered, Defendant! Thlrd-

Party Plamtlff Rood HoI dmgs , L L C 's MotIOn to DismISS TImd Party Defendants VNF Inc

d/b/a VR Wood Tnc and Son Kim Nguyen Without PreJudice,                        In   the above-numbered and

entitled Cause        The Court, havmg been adVised that Defendant! Third-Party Plamtlff Rood

Holdmgs, L L C no longer deSIres to prosecute Its claims brought agamst Third-Party

Defendants VNF Inc d/b/a VR Wood Inc and Son Kim Nguyen, hereby GRANTS the MotIOn

to Dlsmlss Without Prejudice

         THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that



Order GRANTING Rood Holdlllgs' MotIon to Dismiss wahout PrejudIce
                                                                                                     Page 1 of 2


                                                       RECORDER'S MEMORANDUM
                                                       ThiS Inslrumenl IS of poor quality                  108
                                                             at the time of Imaging
Defendant! Third-Party Plamtlff Rood Holdmgs, L L C claIms brought agamst the Third-Party

Defendants VNF Inc d/b/a VR Wood Inc and Son KIm Nguyen m the above-numbered and

entItled Cause Number are hereby Dlsmlssed, without prejudice

       IT IS FURTHER ORDERED that the PartIal DIsmissal With Prejudice between

PlaintIff and Defendant Rood Holdings that was entered on August 8, 2014, the Interlocutory

Default Judgment agamst VR Wood, Inc and Huong KIm Nguyen entered on May 29, 20J4 and

the Tnterlocutory Default Judgment agamst B & Sons ConstructlOn entered on December 10,

2014 are now Fmal and Appealable Orders

       All costs of court Dot prevIOusly addressed m the pnor Orders are taxed against the

partIes who mcurred the same

       Signed this:J.d..       day of ~£;L~=:J ,2015.




Order GRANTING Rood Holdmgs' MotLOn to Dismiss wah aut PrejudIce
                                                                                  Page 2 of2


                                                                                       109
                                                                                    2/19120159:19:59 AM
                                                                                    Chris Daniel· District Clerk
                                                                                    Harris County
                                                                                    Envelope No: 4204991
                                                                                    By: HENDERSON, MARCELLA L
                                                                                    Filed: 2/18/20153:46:48 PM

                                    CAUSE NO. 2013-60986

                                                                                                          fl
                                                                                                         -----
UNITED RENTALS (NORTH                        §       IN THE DISTRICT COURT
AMERICA), INC.,                              §
                                             §
       Plaintiff,                            §

VS.
                                             §
                                             §
                                             §
                                                                                                         1l1t11£j
VR WOOD, INC., HUONG KIM                     §
NGlNEN, also known as HUONG                  §
K. NGUYEN, also known as                     §
HUONG NGUYEN,                                §
INDIVIDUALLY, and ROOD                       §       164TH JUDICIAL DISTRJCT
HOLDINGS, L.L.c.                             §
                                             §
       Defendants,                           §
                                             §
VS.                                          §
                                             §
VNF INC. d/b/a VR WOOD INC.,                 §
SON KIM NGUYEN, and B &                      §
SONS CONSTRUCTION, LLC,                      §
                                             §
       Third Party Defendants.               §       HARRIS COUNTY, TEXAS

  ORDER DENYING MOTION FOR NEW TRIAL OF THIRD PARTY DEFENDANT
                  B & SONS CONSTRUCTION, LLC

       Upon considering the arguments of counsel via submission on February 23, 2015, the

Court hereby ORDERS, that Motion for New Trial of Third Party Defendant B & Sons

Construction, LLC is hereby DENIED.

       The Court further ORDERS that the default judgment entered against B & Sons

Construction, LLC on December J 0, 2014 is not set aside and remains in full force and effect.



       SIGNED on the    J.-L day of     Ma.rch           ,2015.




ORDER DENYING B & SON'S MOTION FOR NEW TRIAL                                                         PAGE   1

                                                                      RECORDER'S MEMORANDUM
                                                                     This Instrumenlls of poor qualrty      126
                                                                           at the lime of Imaging
                                                                            9/15120141:43:28 PM
                                                                            Chris Daniel - District Clerk
                                                                            Harris County
                                                                            Envelope No: 2492376
                                                                            By: WILUAMS, CHANDA D




UNITED RENTALS (NORTH
AMERICA), INC.,
                                  CAUSE NO.: 2a13-60986

                                               §
                                               §
                                                           IN THE DISTRICT COURT           P2J
                                                                                          ;;~
                                               §
                                               §
                                               §
VS.                                            §
                                               §
VR WOOD, INC., HUaNG KIM                       §
NGUYEN, also known as HUONG                    §
K. NGtNEN, also known as                       §
HUONG NGUYEN,                                  §
                                                                 TH
INDIVIDUALLY, and ROOD                         §           164        JUDICIAL DISTRICT
HOLDINGS, LL.C,                                §
                                               §
       Defenda.nts,                            §
                                               §
VS.                                            §
                                               §
vNF INC. dlbla VR WOOD INC,                    §
SON KIM NGUYEN, and B &                        §
SONS CONSTRUCTION, LLC,                        §
                                               §
        Third Party Defendants.                §           HARRIS COUNTY, TEXAS

      ORDER GRANTING THIRD-PARTY PLAINTIFF ROOD HOLDINGS. L.LC. 's
                  MOTION FOR SUBSTITUTED SERVICE ON
          THIRD-PARTY DEFENDANT B & SONS CONSTRUCTiON. LLC.

        ON THIS DAY, came      to be consldered, Third-Party P!amtIff, Rood HoldIngs, L L C. 's

(hereinafter "Third-Party PlaintifflRood Holdmgs"), Motion for Substituted Service of Process on

Third-Party Defendant B & Sons Construction, LLC (hereinafter "B & Sons ConstructiOn")

After consldenng Third-Party Pla1ntlff's Motion and the supportIng eVldence, the Court finds that

Third-Party Plaintiff's attempts to locate and serve B & Sons Construction have been unsuccessful

despite Thlrd-Party PlaintIff's due diligence and that the Substitute Servlce requested in

Third-Party Plamtlffs Motion WIll be reasonably effective to give Third-Parry Defendant, B &

Sons Constmctlon, proper nOtIce of the suit.

        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that ThIrd-Party
Plaintiff, Rood Holdings, L.L.c. '5 Motion for Substituted Service is hereby GMNTED and the

Court hereby authonzes substituted servlce on ThIrd-Party Defendant, B & Sons ConstructlOn,

LLC, by one of the following methods.

          i) Leavmg a true copy of the CitatIOn, along with the PetitlOD wIth anyone more than

              sixteen years of age at 600 Shane Street, Houston, Texas 77037.

          2) Securely attachmg a copy of the Cltation, along with the Petition on the front door

              or on the front gate of the property at 600 Shane Street, Houston, Tex.as 77037

          3) By mailIng a copy of the CltatlOn along with the PetItion, by certified mail (return

              recelpt requested) and/or by regular mail to the reglstered agent's office at 600

              Shane Street, HOllston, Texas 77037

          4) By any alternative method WhlCh the    CoUtt   deems as reasonably effecllve to glYe

              Third-Party Defendant B & Sons ConstructiOn notice of the suit.


       Signed un this the   R 0-fr>day Of~~2%'iA.


                                                                                           E




                                                                                                    95
                                                                                                  4/18/201510436 PM
                                                                              Chris Daniel· District Clerk Harris County
                                                                                                 EnveloPe No. 4943496
                                                                                                 By: Phyllis Washington
                                                                                         Filed 4/20/201512:0000 AM

                                       Cause Nr.: 2013-60986

UNITED RENTALS (NORTH                       s       IN THE DISTRICT COURT
AlVIERICA), INC                             s
Plaintiff                                   s
                                            s
v.                                          s
                                            S
VR WOOD, INC, HUONG KIM                     S
NGUYEN, also known as HUONG K.              S
NGUYEN, also known as HUaNG                 S
NGUYEN, IJ\IDIVIDUALL Y, and ROOD           S
HOLDINGS, LLC,                              S       HARRIS COUNTY, TEXAS
Defendants                                  S
                                            S
v.                                          S
                                            S
VNF INC d/bla VR WOOD INC, SON              S
KIM NGUYEN, and B & SONS                    S
CONSTRUCTION, LLC,                          S
Third Party Defendants                      S       164TH TIJDICIAL DISTRICT

       THE NOTICE OF APPEAL OF THIRD PARTY DEFENDANT
                  B & SONS CONSTRUCTION. LLC

TO THE HONORABLE STATE DISTRICT JUDGE:

       Third Party Defendant B & Sons Construction, LLC hereby appeals to the First or the

Fourteenth Court of Appeals of the State of Texas the Final Judgment signed by the district judge

on January 22,2015.

                                     Respectfully submitted,

                                     BY: /Iss// peter costea

                                     TBN 04855900
                                     Three Riverway, Suite 1800
                                     Houston, Texas 77056
                                     Tel. 713-337-4304
                                     Fax 713-659-5302
                                     ATTORNEY FOR TH1RD PARTY DEFENTIANT
                                     B & SONS CONSTRUCTION, LLC




                                                                                                127
                                     CERTIFICATE OF SERVICE

        T certify that on April 18, 2015 a true and correct copy of the foregoing pleading was
served electronically by the clerk of the court on counsel for all parties, Ms. Ashley A. Smith,
5151 Belt Line Road, Suite 410, Dallas, Texas 75254; Ms. l\1isti L Beanland, Matthews, Stein,
Shiels, Pearce, Knott, Eden & Davis, LLP" 8131 LBJ Freeway, Suite 700, Dallas, Texas 75251;
and Ms, Christina R, Johnson, Fidelity National Law Group, 5151 Beltline Road, Suite 410,
Dallas, Texas 75254.

                                     //ss// peter costea

                                             Peter Costea




                                                                                          128
