                                                                                               ACCEPTED
                                                                                           03-14-00485-CV
                                                                                                   5592071
                                                                                THIRD COURT OF APPEALS
June 9, 2015                                                                               AUSTIN, TEXAS
                                                                                       6/8/2015 5:41:58 PM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                                   03-14-00485-CV

                       IN THE THIRD COURT OF APPEALS                   RECEIVED IN
                                                                  3rd COURT OF APPEALS
                               AUSTIN, TEXAS                          AUSTIN, TEXAS
                                                                  6/8/2015 5:41:58 PM
                                                                    JEFFREY D. KYLE
                                 JOHN REED, JR.,                          Clerk
                                                                   Appellant
                                           v.
                        FARMERS INSURANCE GROUP,
                                                                     Appellee

                        On Appeal from Cause No. 259,941-C
               In the 169th Judicial District Court of Bell County, Texas

          APPELLEE FARMERS INSURANCE GROUP’S RESPONSE
           TO APPELLANT’S MOTION FOR THE APPEAL COURT
                   TO DETERMINE JURISDICTION


         Kevin G. Cain           Levon G. Hovnatanian      Christopher W. Martin
    State Bar No. 24012371      State Bar No. 10059825     State Bar No. 13057620
      cain@mdjwlaw.com       hovnatanian@mdjwlaw.com       martin@mdjwlaw.com
                      MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
                                  808 Travis, 20th Floor
                                  Houston, Texas 77002
                              (713) 632-1700—Telephone
                               (713) 222-0101—Facsimile
                                    Michael Watson
                                State Bar No. 24008246
                                watson@mdjwlaw.com
                     MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
                         16000 N. Dallas Parkway, Suite 800
                                  Dallas, Texas 75248
                             (214) 420-5500—Telephone
                              (214) 420-5501—Facsimile
TO THE HONORABLE COURT OF APPEALS:

      Comes now the appellee, Farmers Insurance Group (“Farmers”), and

responds to Mr. Reed’s Motion for the Appeal Court to Determine Jurisdiction.

                                    ARGUMENT

      The trial court signed the final judgment on July 1, 2014.         CR 651.

Therefore, even at its “maximum duration,” the trial court lost plenary power on

Wednesday, October 15, 2014, the 106th day after the final judgment was signed.

See TEX. R. CIV. P. 329b(c), (d), (e); In re J.H., 39 S.W.3d 688, 689-90 (Tex.

App.—Houston [1st Dist.] 2001, no pet.). As such, the trial court long ago lost

jurisdiction to vacate the final judgment and sign a new judgment.

      Nevertheless, Reed recently bombarded the trial court with several clearly

meritless motions seeking a default judgment against the defendants. See 3rd

Supp. CR 4-107. The trial court refused to grant Reed any relief, confirmed for

him that it has no plenary power, and reminded him that the case is now before this

Court, pursuant to Reed’s own notice of appeal. See 3rd Supp. CR 109.

      Having been correctly rebuffed by the trial court, Reed now argues in a

motion to this Court that he should have been awarded a default judgment. Then,

in the same motion, he argues the trial court did not have jurisdiction to sign any

judgment at all. As will be shown below, these arguments, like the ones he

recently made in the trial court, are clearly meritless.

                                           1
I.    REED WAS NOT DEPRIVED OF A DEFAULT JUDGMENT BY THE
      DISTRICT CLERK.

      Reed’s first argument seems to be that the District Clerk’s service on

Farmers Insurance Group by certified mail, return receipt requested was defective

because the return of service does not have the Clerk’s stamp on it and is not

verified, violating Texas Rule of Civil Procedure 108. Motion at 1. He contends

that the District Clerk’s failure to provide “strict compliance” deprived him of a

default judgment. Motion at 1.

      Initially, Reed has put the burden on the wrong person. It was not the

District Clerk’s responsibility to see to proper service—it was Reed’s. “It is the

responsibility of the party requesting service . . . to ensure that (1) proper service is

accomplished and (2) that the record reflects proper service.” Furst v. Smith, 176

S.W.3d 864, 869 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (emphasis added);

accord Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994).

      Furthermore, Reed is not entitled to have the adverse judgment thrown out

because of mistakes in service, whether his or the District Clerk’s. If a defendant

is not served in strict compliance, it still may voluntarily appear or accept or waive

service. See Garza v. Attorney Gen. of Tex., 166 S.W.3d 799, 811 (Tex. App.—

Corpus Christi 2005, no pet.); Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 693

(Tex. App.—Corpus Christi 2003, pet. denied); $9,000.00 U.S. Currency v. State,

2014 WL 5490946, at *3 (Tex. App.—Texarkana 2014, no pet.); In re A.T.A., 2009
                                           2
WL 3337648, at *1 (Tex. App.—Dallas 2009, no pet.); Chandler v. Miller, 2002

WL 1824844, at *6 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (not designated

for publication).

      Here, whether strict compliance occurred is immaterial, because the relevant

defendant filed an answer. CR 14-15.       “[F]iling an answer constitutes a general

appearance, thereby dispensing with the need for the issuance and service of

citation. Thus, filing an answer waives any complaints about service.” Phillips v.

Dallas Cnty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex. App.—

Dallas 2006, pet. denied) (citations omitted); accord TEX. R. CIV. P. 121.

      Typically, it is the defendant who challenges service that was made on it by

the plaintiff. See, e.g., Autozone, Inc. v. Duenes, 108 S.W.3d 917, 921 (Tex.

App.—Corpus Christi 2003, no pet.); Barker CATV Constr., Inc. v. Ampro, Inc.,

989 S.W.2d 789, 794 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Hollister v.

Palmer Indep. Sch. Dist., 958 S.W.2d 956, 957-58 (Tex. App.—Waco 1999, no

pet.). But here, Reed, the plaintiff, is attacking his own service. His complaints are

without merit, and he was not somehow deprived of a default judgment by the

District Clerk.

II.   THE TRIAL COURT HAD JURISDICTION TO ENTER A
      JUDGMENT.

      After first arguing that the District Clerk deprived him of a default judgment,

Reed shifts gears and contends the trial court did not have jurisdiction to enter any
                                          3
judgment. Motion at 1. He once again alleges defects in the return of service.

Motion at 1. But if a defendant is not served in strict compliance, it nevertheless

may voluntarily appear or accept or waive service. See Garza, 166 S.W.3d at 811;

Palomin, 26 S.W.3d at 693; $9,000.00 U.S. Currency, 2014 WL 5490946, at *3;

A.T.A., 2009 WL 3337648, at *1; Chandler, 2002 WL 1824844, at *6.

         Here, any alleged defects are immaterial, because the relevant defendant

filed an answer. CR 14-15. “[F]iling an answer constitutes a general appearance,

thereby dispensing with the need for the issuance and service of citation. Thus,

filing an answer waives any complaints about service.” Phillips, 197 S.W.3d at

865; accord TEX. R. CIV. P. 121. The trial court had jurisdiction to sign and enter a

judgment. See In re Parker, 275 S.W.3d 623, 628 (Tex. App.—Amarillo 2008, no

pet.).

                  CONCLUSION AND PRAYER FOR RELIEF

         Apparently, Reed feels he has nothing to lose by filing far-fetched motion

after far-fetched motion about obtaining a default judgment in a case in which a

final judgment was signed almost a year ago. Having been gently but firmly

rebuffed by the trial court, Reed is now focusing his efforts on this Court.




                                          4
       The appellee’s motion to dismiss the appeal for want of prosecution remains

pending, as does Reed’s motion for extension of time to file brief.1                   In the

meantime, if history is any indication, more motions seeking or discussing a

default judgment will be forthcoming.

       The appellee respectfully asks the Court to deny Mr. Reed’s Motion For The

Appeal Court To Determine Jurisdiction.




1
       The original deadline for Reed to file his brief was Monday, December 1, 2014. See TEX.
R. APP. P. 38.6(a) (setting deadline for appellant’s brief in non-accelerated appeal as 30 days
from date complete record was filed); TEX. R. APP. P. 4.1(a) (method of computing time). After
four extensions, Reed still has not filed a brief.
        The Court should deny any further request for extension. Reed has had ample time to
prepare his opening brief, but instead of preparing that document, he continues to put his time
and effort into nonsensical motions.

                                              5
Respectfully submitted,

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.


By: /s/ Levon G. Hovnatanian
    Levon G. Hovnatanian
     State Bar No. 10059825
    hovnatanian@mdjwlaw.com
    Kevin G. Cain
    State Bar No. 24012371
    cain@mdjwlaw.com
    Christopher W. Martin
    State Bar No. 13057620
    martin@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.


By: /s/ Michael Watson
    Michael Watson
     State Bar No. 24008246
    watson@mdjwlaw.com
16000 N. Dallas Parkway, Suite 800
Dallas, TX 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile

ATTORNEYS FOR APPELLEE
FARMERS INSURANCE GROUP




      6
                     CERTIFICATE OF COMPLIANCE

     This is to certify that this computer-generated Response To Motion For The
Appeal Court To Determine Jurisdiction contains 1,094 words.


                                   /s/ Levon G. Hovnatanian
                                   Levon G. Hovnatanian
                                   Dated: June 8, 2015


                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing
Response To Motion For The Appeal Court To Determine Jurisdiction has been
forwarded by the method(s) indicated below to the following persons on this 8th
day of June, 2015.

                           Mr. John Reed, Jr., pro se
                              715 S. 32nd Street
                            Temple, Texas 76501

                                  (Appellant)

                   (via CM-RRR 7014 1200 0000 7830 1327)


                                   /s/ Levon G. Hovnatanian
                                   Levon G. Hovnatanian




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