Elishah Sawyers, Pax Crate & Freight, Inc. and Robin Sawyers v. Marc Carter and Sally Carter ( 2015 )

ACCEPTED
01-14-00870-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/29/2015 2:45:22 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00870-CV
In the Court of Appeals FILED IN
1st COURT OF APPEALS
For the First District of Texas HOUSTON, TEXAS
Houston, Texas 4/29/2015 2:45:22 PM
CHRISTOPHER A. PRINE
Clerk
Elishah Sawyers; Pax Crate & Freight, 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
AMENDED REPLY BRIEF OF APPELLANTS, ELISHAH SAWYERS,
PAX CRATE & FREIGHT, INC., AND ROBIN SAWYERS
Mr. Scott Rothenberg
State Bar No. 17316750
Law Offices of Scott Rothenberg
2777 Allen Parkway, Suite 1000
Houston, Texas 77019-2165
scott@rothenberglaw.com
telephone: (713) 667-5300
telecopier: (713) 667-0052
Counsel for Appellants,
Robin Sawyers,
Elishah Sawyers, and
Pax Crate & Freight, Inc.
Oral Argument Requested
Table of Contents
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Objection to the Carters’ Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . 2
Reply to the Carters’ First “Issue Presented”. . . . . . . . . . . . . . . . . . . . . . . 3
Reply to the Carters’ Second “Issue Presented”. . . . . . . . . . . . . . . . . . . . 16
Absence of Elishah Sawyers’ Signature on the Certified Mail Receipt. . . 20
No Date and Time Shown that Process was Received for Service. . . . . . 22
No Proper Service on Pax Crate - Incorrect Name and No Return. . . . . . 23
No Citation on Elishah and Robin Sawyers - Incorrect Address. . . . . . . . 25
No Accurate Description of What Pleading was Served. . . . . . . . . . . . . . 26
No File Mark on Robin and Elishah Returns of Service = No Service. . . . 28
The Order Granting Default Judgment is Interlocutory. . . . . . . . . . . . . . . 32
Legally and Factually Insufficient Evidence Supports Damages. . . . . . . . 34
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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Index of Authorities
Cases Page
Americo Life, Inc. v. Myer,
356 S.W.3d 496 (Tex. 2011) (per curiam). . . . . . . . . . . . . . . . . . . . . 9
Benefit Planners, L.L.P. v. RenCare, Ltd.,
81 S.W.3d 855 (Tex.App.—
San Antonio 2002, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bentley v. Bunton,
94 S.W.3d 568 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Blackburn v. Citibank (South Dakota) N.A.,
2006 WL 1629770, No. 05-05-01082-CV
(Tex. App.– Dallas 2006, no pet.) (mem. op.). . . . . . . . . . . . . . 29, 30
Chandler v. Reder, 635 S.W.2d 895
(Tex. App.– Amarillo 1982, no writ). . . . . . . . . . . . . . . . . . . . . . . . . 33
Disco Machine of Liberal Co. v. Payton,
900 S.W.2d 71 (Tex. App.–
Amarillo 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Frazier v. Dikovitsky,
144 S.W.3d 146 (Tex. App.–
Texarkana 2004, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Garcia v. Kastner Farms, Inc.,
774 S.W.2d 668 (Tex. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Gilstrap v. Calley,
2004 WL 2812881 (Tex. App.–
Houston [14th Dist.] 2004, no pet.) (mem. op.). . . . . . . . . . . . . . . . 7, 8
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Gonzales v. Terrell, 2015 WL 1735370,
No. 01-14-00711-CV (Tex. App.–
Houston [1st Dist.] April 14, 2015,
no pet. hist.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Harris County v. Miller,
576 S.W.2d 808 (Tex.1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Hone v. Hanafin,
104 S.W.3d 884 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Houston Precast, Inc. v. McAllen Constr., Inc.,
No. 13–07–135–CV, 2008 WL 4352636
(Tex.App.— Corpus Christi Sept. 25, 2008, no pet.). . . . . . . . . . . . 18
Ins. Co. of State of Pennsylvania v. Lejeune,
297 S.W.3d 254 (Tex. 2009) (per curiam). . . . . . . . . . . . . . . . . . . . 23
Jones v. Griege, 803 S.W.2d 486
(Tex. App.– Dallas 1991, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . 32
Landagan v. Fife,
No. 01-13-00536-CV, 2014 WL 2809813
(Tex. App.– Houston [1st Dist.]
June 19, 2014, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . 17, 26
Lefton v. Griffith, 136 S.W.3d 271
(Tex. App.– San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . . . . 31
Master Capital Solutions Corp. v. Araujo,
2015 WL 268876, No. 08-13-00327-CV
(Tex. App.– El Paso, January 21, 2015, no pet. hist.). . . . . 17, 18, 19
McGraw–Hill, Inc. v. Futrell,
823 S.W.2d 414 (Tex.App.—
Houston [1st Dist.] 1992, writ denied). . . . . . . . . . . . . . . . . . . . . . . 18
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Memorial Hospital of Galveston Cty. v. Gillis,
741 S.W.2d 364 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Meshwert v. Meshwert,
549 S.W.2d 383 (Tex. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Min v. Avila, 991 S.W.2d 495
(Tex.App.– Houston [1st Dist.] 1999, no pet.). . . . . . . . . . . . . . . . . 16
N. Carolina Mut. Life Ins. Co. v. Whitworth,
124 S.W.3d 714 (Tex.App.– Austin 2003, pet. denied). . . . . . . . . . 16
Nueces Cnty. Hous. Assistance, Inc. v. M & M Res. Corp.,
806 S.W.2d 948 (Tex.App.– Corpus Christi 1991, writ denied). . . . 17
Palavan v. McCulley,
2015 WL 1544520,
No. 01-14-00604-CV (Tex. App.–
Houston [1st Dist.] April 2, 2015,
no pet. hist.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Perry v. Cohen,
272 S.W.3d 585 (Tex. 2008) (per curiam). . . . . . . . . . . . . . . . . . . . . 9
Primate Constr, Inc. v. Silver,
884 S.W.2d 151 (Tex. 1994) (per curiam). . . . . . . . . . . . . . 17, 22, 28
Quaestor Invs., Inc., v. State of Chiapas,
997 S.W.2d 226 (Tex. 1999) (per curiam). . . . . . . . . . . . . . . . . 10, 11
Royal Surplus Lines Ins. Co. v. Samaria Baptist Church,
840 S.W.2d 382 (Tex. 1992) (per curiam). . . . . . . . . . . . . . . . . . . . 26
RSL-3B-IL, Ltd. v. Prudential Ins. Co. of Am.,
2014 WL 3107663, No. 01-13-00933-CV
(Tex.App.– Houston [1st Dist.] 2014, pet. dism’d). . . . . . . . . . . . . . . . 9
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Saenz v. Fid. & Guar. Ins. Underwriters,
925 S.W.2d 607 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Stephenson v. Corporate Services, Inc.,
650 S.W.2d 181 (Tex. App.–
Tyler 1983, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Smith v. U.S. Auto. Acceptance 1995–1, Inc.,
No. 05–98–00061–CV, 2000 WL 375249
(Tex.App.— Dallas April 13, 2000, no pet.) (mem. op.). . . . . . . . . . 18
Uvalde Country Club v. Martin Linen Supply Co.,
690 S.W.2d 884 (Tex. 1985) (per curiam). . . . . . . . 17, 20, 21, 25, 26
Verburgt v. Dorner,
959 S.W.2d 615 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 12
Weeks Marine, Inc. v. Garza,
371 S.W.3d 157 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wray v. Papp,
434 S.W.3d 297 (Tex. App.–
San Antonio 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Zepeda v. Giraud,
880 S.W.2d 833 (Tex. App.–
San Antonio 1994, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Statutes and Rules Page
Tex. R. App. P. 4.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9
Tex. R. App. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Tex. R. App. P. 26.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13
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Tex. R. App. P. 26.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12
Tex. R. App. P. 29.5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
TEX. R. CIV. P. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
TEX. R. CIV. P. 99(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
TEX. R. CIV. P. 99(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
TEX. R. CIV. P. 106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
TEX. R. CIV. P. 106(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
TEX. R. CIV. P. 107(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
TEX. R. CIV. P. 107(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
TEX. R. CIV. P. 107(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
TEX. R. CIV. P. 107(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 31
TEX. R. CIV. P. 108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
TEX. R. CIV. P. 108a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
TEX. R. CIV. P. 124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
TEX. R. CIV. P. 165a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. R. CIV. P. 306a(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 9
TEX. R. CIV. P. 306a(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9
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No. 01-14-00870-CV
In the Court of Appeals
For the First District of Texas
Houston, Texas
Elishah Sawyers; Pax Crate & Freight, 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
AMENDED REPLY BRIEF OF APPELLANTS, ELISHAH SAWYERS,
PAX CRATE & FREIGHT, INC., AND ROBIN SAWYERS
TO THE HONORABLE FIRST COURT OF APPEALS:
Appellants, Elishah Sawyers, Pax Crate & Freight, Inc., and Robin
Sawyers, file this, their Amended Reply Brief of Appellants in the above-
captioned and numbered appeal. In support thereof, Elishah Sawyers, Pax
Crate & Freight, Inc., and Robin Sawyers would respectfully show this
Honorable Court as follows:
Objection to the Carters’ Statement of Facts
On page 5 of their Brief of Appellees, the Carters incorrectly tell this
Court “The Appellants acknowledge that they timely e-filed answers to the
petition on August 4, 2014; however the purported answers are not part of the
trial court’s record.” Brief of Appellees at 5.
The undersigned has not found any representation by Appellants that
they “timely e-filed answers” on August 4, 2014. The Sawyers testified that
they “believed that” an answer had been e-filed on behalf of the three
defendants on August 4, 2014, because a legal assistant told them that she
had e-filed the answer on August 4, 2014. Sworn Affidavits of Elishah and
Robin Sawyers at 2-3. A representation that the Sawyers “believed that” the
answer had been e-filed is not the same as a representation that the answer
was, in fact, e-filed.
On page 5 of their brief, the Carters tell this Court that “[t]he 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.” (emphasis added). However, the September 4, 2014 notice of
submission states that the “Motion for Default Judgment” (which was filed on
August 21, 2014, CR 36-37) would be presented to the Court for ruling and
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not the “Amended Motion for Default Judgment” that was filed on September
3, 2014. CR 49, 43-44.
This is not a distinction without a difference. The Motion for Default
Judgment expressly admits that the damages sought are unliquidated, and
therefore “requests a hearing to establish the amount of damages and a court
reporter to record the proceedings.” CR 36. The Amended Motion for Default
Judgment, which was filed with the trial court but which was not submitted to
the trial court– CR 43-44, 49– omits the Carters’ admission that the damages
sought are unliquidated. Thus, the only motion submitted to the trial court
admitted that the Carters’ damages were unliquidated and required proof.
Reply to the Carters’ First “Issue Presented”
In their first “issue presented,” the Carters contend that this Court lacks
jurisdiction over this appeal because the Sawyers’ and Pax Crate’s notice of
appeal was untimely and their notice of restricted appeal is both untimely and
impermissible. Brief of Appellees at 8.
The Carters presented these issues for the Court’s consideration in
their November 17, 2014 motion to strike the Sawyers’ and Pax Crate’s notice
of appeal, in their March 18, 2015 motion to strike the Sawyers’ and Pax
Crate’s notice of appeal, and their April 7, 2015 motion to strike the Sawyers’
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and Pax Crate’s notice of restricted appeal. The Sawyers and Pax Crate ask
the Court to take judicial notice of those three motions, which are contained
in this Court’s file in this appeal.
This Court denied the Carters’ jurisdictional complaints in its orders
dated November 24, 2014 (stating, in relevant part, “Appellees Marc and Sally
Carter’s motion to strike appellant’s notice of appeal is DENIED.”), and April
23, 2015 (stating, in relevant part, “Please be advised that the Court today
DENIED Appellee’s Motion to Strike in the above-referenced cause.”). The
Sawyers and Pax Crate ask the Court to take judicial notice of those two
orders, which are contained in this Court’s file in this appeal.
The Carters’ Brief of Appellee offers no new reasons for striking either
the Sawyers and Pax Crate’s notice of appeal or their notice of restricted
appeal.
The previously-filed Sworn Affidavits of Elishah P. Sawyers, Robin
Sawyers, and Rita Curtis contain reasonable explanations why the October
27, 2014 notice of appeal was not filed within thirty (30) days of the date that
the trial court signed the September 12, 2014 “Order Granting Default
Judgment.” To refresh the Court’s recollection, the Sawyers and Pax Crate
informed the Court through sworn affidavits that the first notice of any that
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Elishah Sawyers, Robin Sawyers, Rita Curtis and Pax Crate & Freight, Inc.,
had regarding the signing of the Order Granting Default Judgment was
received by Elishah Sawyers by telephone and email on October 22, 2014.
As a result of all of the foregoing, there are three sequential inquiries
that are appropriate for this Court.
First, is the September 12, 2014 “Order Granting Default Judgment” a
final, appealable judgment, or an interlocutory order? This Court’s answer to
that question directly impacts its jurisdiction over this appeal.
If the September 12, 2014 “Order Granting Default Judgment” is
determined to be an interlocutory order, then the correct disposition would be
to dismiss both the original appeal (pursuant to the October 27, 2014 notice
of appeal), and the restricted appeal (based on the March 27, 2015 notice of
restricted appeal) for lack of a final, appealable judgment. See Gonzales v.
Terrell, 2015 WL 1735370, No. 01-14-00711-CV (Tex. App.– Houston [1st
Dist.] April 14, 2015, no pet. hist.) (mem. op.); Palavan v. McCulley, 2015 WL
1544520, No. 01-14-00604-CV (Tex. App.– Houston [1st Dist.] April 2, 2015,
no pet. hist.) (mem. op.). This would allow the Sawyers and Pax Crate to file
timely and appropriate post-judgment motions in the trial court without any
concern for violating Texas Rule of Appellate Procedure 29.5(b) or otherwise
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infringing upon this Court’s appellate jurisdiction.
If the September 12, 2014 “Order Granting Default Judgment” is
determined by this Court to be a final, appealable judgment, then the next
question is whether or not the Sawyers and Pax Crate provided this Court with
a “reasonable explanation” regarding the late filing of their October 27, 2014
notice of appeal. If they did, then the March 27, 2015 Notice of Restricted
Appeal is neither necessary or appropriate, and should be properly dismissed.
The Carters contend that the Sawyers and Pax Crate cannot provide a
“reasonable explanation” for late-filing a notice of appeal if they could have,
but did not, take advantage of the procedures set forth in Texas Rule of
Appellate Procedure 4.2 and Texas Rules of Civil Procedure 306a(4) and
306a(5). Brief of Appellees at 8, 10-15. This argument is flawed for several
different but related reasons.
First, neither Appellate Rule 4.2 nor Rules 306a(4) and (5) is couched
in mandatory language. That is, neither of the rules states that a litigant who
receives late notice of the signing of a judgment must or shall take
advantage of the procedures set forth therein.
Second, the Carters’ Brief of Appellees contains misleading language.
On the bottom of page 11, the Carters state with underlined emphasis:
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“Compliance with the provisions of rule 306a is a jurisdictional prerequisite.”
They cite to Memorial Hospital of Galveston Cty. v. Gillis, 741 S.W.2d 364,
365 (Tex. 1987), as authority for that proposition. Brief of Appellees at 11.
What Gillis actually says is that if a trial court dismisses a lawsuit for
want of prosecution and a litigant files a motion to reinstate under Rule 165a,
that motion must be filed in the trial court within thirty days after the date of
judgment or within the appropriate time period under Rule 306a(4) if the
proper showing is made in the trial court to entitle the litigant to Rule 306a(4)
relief: “Compliance with the time periods prescribed by these rules is a
jurisdictional prerequisite. Unless a party establishes in the manner
prescribed by the rule that he had no notice or knowledge of the judgment,
the general rule prevails: a trial court's power to reinstate a cause after
dismissal expires thirty days after the order of dismissal is signed. Harris
County v. Miller, 576 S.W.2d 808 (Tex.1979).” Mem'l Hosp. of Galveston
Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987). The appeal before this Court
has nothing to do with motions to reinstate pursuant to Texas Rule of Civil
Procedure 165a. Therefore, Gillis simply does not apply.
The Carters cite Gilstrap v. Calley, 2004 WL 2812881 (Tex. App.–
Houston [14th Dist.] 2004, no pet.) (mem. op.), for the proposition that a
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litigant’s failure to take advantage of the procedure afforded under Texas Rule
of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a(4) and (5)
automatically disqualifies that litigant from receiving an extension of time
pursuant to Texas Rule of Appellate Procedure 26.3 as a matter of law. Brief
of Appellees at 13. But that is not what Gilstrap says.
First, in Gilstrap, the appellant filed her notice of appeal fourteen months
after the deadline for doing so, and not within the fifteen day window after
signing of the judgment. “This is an attempted appeal from a judgment,
signed June 11, 2003. No motion for new trial was filed. Appellant's notice
of appeal was filed on October 4, 2004.” Opinion at 1. Thus, even if the
Gilstrap court were inclined to do so, it could not apply the 15-day implied
request for extension of time set forth in Verburgt v. Dorner, 959 S.W.2d 615,
616 (Tex. 1997), as this court can. Opinion at 1. This fact alone establishes
that Gilstrap should not be relied upon as support for the Carters’ position in
this appeal.
Second, the relief afforded under Rule 306a(4) and Rule 306a(5) would
have done Gilstrap no good given that she filed her notice of appeal fourteen
months too late. Therefore, the Gilstrap court’s discussion of Rule 306a(4)
is nothing more than mere dictum and should not be relied upon.
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This narrow reading of Gilstrap is supported by the Supreme Court of
Texas’ recent string of repeated pronouncements that appellate courts should
construe the procedural rules in such a manner as to reach the merits of
appeals whenever possible. Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.
2008) (per curiam). See also Weeks Marine, Inc. v. Garza, 371 S.W.3d 157,
162 (Tex. 2012); Americo Life, Inc. v. Myer, 356 S.W.3d 496, 498 (Tex. 2011)
(per curiam).
The Sawyers and Pax Crate provided this Court with a “reasonable
explanation” for why they did not file their notice of appeal within thirty days
of September 12, 2014. They did so by sworn affidavit testimony establishing
that they received no notice of the September 12, 2014 “Order Granting
Default Judgment” until October 17, 2014.
A “reasonable explanation” is “any plausible statement of
circumstances indicating that failure to file within the [specified]
period was not deliberate or intentional, but was the result of
inadvertence, mistake or mischance.” Hone v. Hanafin, 104
S.W.3d 884, 886 (Tex. 2003) (quoting Meshwert v. Meshwert, 549
S.W.2d 383, 384 (Tex. 1977)). We apply a liberal standard of
review, under which “any conduct short of deliberate or intentional
noncompliance qualifies as inadvertence, mistake or mischance.”
Id. at 886 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d
668, 670 (Tex. 1989)).
RSL-3B-IL, Ltd. v. Prudential Ins. Co. of Am., 2014 WL 3107663, at *2, No.
01-13-00933-CV (Tex.App.– Houston [1st Dist.] 2014, pet. dism’d). The
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Carters have attempted to transmute this standard into requiring the Sawyers
and Pax Crate providing a reasonable explanation for why they did not seek
trial court relief under Texas Rule of Appellate Procedure 4.2 or Texas Rule
of Civil Procedure 306a. The undersigned has found no reported authority
requiring appellants to assume or satisfy such a burden under the procedural
circumstances presented in this appeal.
The Carters also attack the Sawyers’ and Pax Crate’s notice of
restricted appeal. Only one set of circumstances exists that would make it
necessary for the Court to adjudicate the restricted appeal that was perfected
from the “Order Granting Default Judgment.”
If this Court: (a) finds that the September 12, 2014 “Order Granting
Default Judgment” is a final, appealable judgment and (b) this Court finds that
the Sawyers and Pax Crate did not provide this Court with a “reasonable
explanation” regarding the late filing of their October 27, 2014 notice of
appeal, then the March 27, 2015 Notice of Restricted Appeal would be both
necessary and appropriate.
In seeking to strike the Sawyers’ and Pax Crate’s notice of restricted
appeal, the Carters rely upon Quaestor Invs., Inc., v. State of Chiapas, 997
S.W.2d 226, 227 (Tex. 1999) (per curiam). They rely upon Quaestor as
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authority for the proposition that “the six-month time limit” for the filing of a
restricted appeal “is mandatory and jurisdictional.” Brief of Appellees at 9.
The Quaestor opinion plainly does say that on its face.
However, Quaestor is readily distinguishable from the facts presented
in this case. In Quaestor, the appellant sought to file its restricted appeal
(then called a “writ of error” under the existing procedures), more than eight
months after the six-month period for the filing of a restricted appeal/writ of
error had expired. Of course, no procedural mechanism existed at the time
of the Quaestor opinion– or even at the present time– to extend the deadline
for filing a restricted appeal/writ of error by eight months after the six-month
period for filing such an appeal had elapsed.
But that is not what we have in this case. In this case, the Sawyers and
Pax Crate filed their notice of restricted appeal within fifteen days of the
expiration of the six-month period set forth in Texas Rule of Appellate
Procedure 26.1(c). Therefore, the Sawyers and Pax Crate have available to
them the implied motion for extension of time described by the Supreme Court
of Texas in Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). As such,
this case is procedurally far closer to Wray v. Papp, 434 S.W.3d 297 (Tex.
App.– San Antonio 2014, no pet.), than it is to Quaestor.
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In Wray, the appellant filed a restricted appeal on June 14, 2013– six
months and one day after the final divorce decree had been signed. The
court of appeals noted that Tex. R. App. P. 26.3 permits an extension of time
to file a notice of restricted appeal if the notice is filed within fifteen days after
the deadline for filing a notice of restricted appeal. The court further noted
that “[a] motion for extension of time is implied when an appellant acting in
good faith files a notice of appeal beyond the time allowed by Rule 26.1, but
within the fifteen-day grace period.” Wray v. Papp, 434 S.W.3d 297, 299
(Tex. App.– San Antonio 2014, no pet.) (citing Verburgt v. Dorner, 959
S.W.2d 615, 617 (Tex.1997)). After determining that the appellant’s
explanation for the late filing was satisfactory, the Court concluded that
Wray’s notice of appeal was timely-filed within the extension period, and
proceeded to adjudicate the merits of the appeal.
This Court disposed of jurisdictional issues raised by the Sawyers’ and
Pax Crate’s late-filing of the October 27, 2014 notice of appeal when this
Court overruled the Carters’ November 17, 2014 motion to strike that notice
of appeal as untimely in an order dated November 24, 2014.
The Carters’ present appellate counsel, Mr. Tough, has been counsel
of record in the case since January 15, 2015. However, it was not until more
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than two months after that date that Mr. Tough saw fit to reassert the
jurisdictional issue that had been put to rest by this Court’s November 24,
2014 order– more than three months earlier. Perhaps coincidentally, Mr.
Tough just happened to resurrect and reassert that jurisdictional complaint a
mere six days after the expiration of the six-month period after the trial court
signed its “Order Granting Default Judgment.”
Simply put, if the undersigned had been aware that the Carters’ counsel
intended to belatedly attack this Court’s November 24, 2014 order overruling
the Carter’s motion to strike the October 27, 2014 notice of appeal as
untimely-filed, the undersigned would have filed the Notice of Restricted
Appeal within the time period set out in Texas Rule of Appellate Procedure
26.1(c), assuming– and this is a big assumption– that time period has even
begun to run in this case.
The Carters’ reliance upon Zepeda v. Giraud, 880 S.W.2d 833, 834-35
(Tex. App.– San Antonio 1994, no pet.)– Brief of Appellees at 9-10– is
similarly misplaced. The Carters include a parenthetical description of what
occurred in Zepeda after the citation to that case on page 10 of their brief.
The Carters state in their explanatory parenthetical as follows: “An appeal by
writ of error from a default judgment in a civil suit was dismissed for want of
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jurisdiction because appellant had previously perfected an ordinary appeal,
which was dismissed by the court and not abandoned by appellant.” Brief of
Appellees at 10.
The above-referenced language does not appear in the Zepeda opinion.
But more important than that is a fact that was present in Zepeda that may,
or may not, be present in this case.
In Zepeda, the court of appeals was very careful to point out that the
appellant “timely perfected an ordinary appeal from the default judgment.”
Zepeda v. Giraud, 880 S.W.2d 833, 834 (Tex. App.– San Antonio 1994, no
pet.). Of course, if the appellant in Zepeda timely perfected an ordinary
appeal, there would be no need whatsoever for the filing of a restricted
appeal.
In the present case, the Carters have contended that the Sawyers’ and
Pax Crate’s original notice of appeal from their ordinary appeal should be
dismissed because it was untimely filed. Brief of Appellants at 8, 10-15.
The Sawyers and Pax Crate did not file their March 27, 2015 notice of
restricted appeal because they want this Court to adjudicate both their
ordinary appeal and the restricted appeal. In a perfect world, this Court would
find that the trial court’s September 12, 2014 “Order Granting Default
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Judgment” is an interlocutory order and not a final, appealable judgment. If
this Court were to issue such a ruling, then the Sawyers and Pax Crate would
be free to file further motions with the trial court, including but not limited to
timely post-judgment motions. It is only in the event that this Court does not
make that finding (interlocutory order vs. final, appealable judgment) that the
ordinary appeal perfected on October 27, 2014 would need to be adjudicated
by this Court.
Further, the restricted appeal would only need to be adjudicated if this
Court: (1) decides not to dismiss this appeal on the ground that the
September 12, 2014 “Order Granting Default Judgment” is a non-appealable
interlocutory order; and (2) finds that the Sawyers and Pax Crate failed to
provide a reasonable explanation for the late-filing of their October 27, 2014
notice of appeal.
In order to determine whether the Sawyers’ and Pax Crate’s notice of
appeal was untimely filed, this Court must first determine whether or not a
final and appealable judgment was ever signed by the trial court. For if it was
not– and the September 12, 2014 “Order Granting Default Judgment” is an
interlocutory order– then the Sawyers’ and Pax Crate’s notice of appeal and
notice of restricted appeal could never be late. This is true because the
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deadlines for filing a notice of appeal and the deadline for filing a notice of
restricted appeal are both tethered to signing of a final, appealable judgment,
which has not yet occurred in the underlying case.
Reply to the Carters’ Second “Issue Presented”
On pages 15 and 16 of their Brief of Appellees, the Carters provide this
Court with a lengthy string citation to opinions– some of which are a quarter-
century old– from other intermediate courts of appeals. In the aggregate,
these cases arguably support a standard of review in default judgment cases
that ‘close enough is good enough to support entry of a default judgment.’
But this Court knows that is not the correct standard of review for service of
process in cases disposed by no-answer default.
The Sawyers and Pax Crate rely upon this Court’s statement of the
applicable standard of review from less than one year ago:
A trial court cannot render a judgment against a defendant unless
he has been properly served, he has accepted or waived service
of process, or he has made an appearance. See Tex.R. Civ. P.
124; Sozanski, 394 S.W.3d at 604. There is no presumption of
proper service on direct appeal. Sozanski, 394 S.W.3d at 604;
Min v. Avila, 991 S.W.2d 495, 499 (Tex.App.– Houston [1st Dist.]
1999, no pet.). Instead, the record must affirmatively show strict
compliance with the rules for service of process. Sozanski, 394
S.W.3d at 604; N. Carolina Mut. Life Ins. Co. v. Whitworth, 124
S.W.3d 714, 719 (Tex.App.– Austin 2003, pet. denied) (“[A]
default judgment should stand only if the plaintiff has strictly
complied with all requirements for service.”). Failure to
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affirmatively show strict compliance with the rules of civil
procedure governing service of citation renders the attempted
service of process “invalid and of no effect.” Uvalde Country Club
v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per
curiam); Nueces Cnty. Hous. Assistance, Inc. v. M & M Res.
Corp., 806 S.W.2d 948, 949 (Tex.App.– Corpus Christi 1991, writ
denied) (“The failure of the record to show strict compliance with
the rules governing issuance, service, and return of citation will
generally void attempted service and require the default judgment
to be set aside.”); see also Primate Constr, Inc. v. Silver, 884
S.W.2d 151, 152 (Tex. 1994) (per curiam) (stating that return of
service is not “a trivial, formulaic document”). “Virtually any
deviation from the statutory requisites for service of process will
destroy a default judgment.” Frazier v. Dikovitsky, 144 S.W.3d
146, 149 (Tex.App.– Texarkana 2004, no pet.).
Landagan v. Fife, No. 01-13-00536-CV, 2014 WL 2809813, at *3 (Tex. App.–
Houston [1st Dist.] June 19, 2014, no pet.) (mem. op.).
The Carters contend that the Sawyers’ admission that they “thought”
they had timely e-filed an answer on August 4, 2014 for the three Appellants
creates an “irrefutable inference that Appellants, without stating in so many
words, had been served and did not dispute the propriety of service on them.”
Brief of Appellees at 17. Well-established Texas law holds otherwise.
In Master Capital Solutions Corp. v. Araujo, 2015 WL 268876, No. 08-
13-00327-CV (Tex. App.– El Paso, January 21, 2015, no pet. hist.), the
plaintiffs obtained a default judgment against Master Capital Solutions Corp.
(“Master Capital”). Master Capital filed a motion for new trial in which it
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acknowledged that it “was served, but did not timely answer.” Opinion at 1.
The Appellees contended that Master Capital “waived its complaint of
defective service because it judicially admitted in its motion for new trial and
at the hearing on the motion that it was duly served.” Opinion at 3.
The El Paso Court of Appeals disagreed:
Here, Master Capital did not waive its complaint concerning
defective service by conceding the issue because. . . .Master
Capital admitted receipt of the lawsuit, not that it was “duly
served.” Although Master Capital stated in its motion for new trial
that it was “served,” it did not admit any of the underlying facts
that would show that it was served in accordance with the rules
of civil procedure or applicable law. . . . Houston Precast, Inc. v.
McAllen Constr., Inc., No. 13–07–135–CV, 2008 WL 4352636, at
*2 n. 21 (Tex.App.— Corpus Christi Sept. 25, 2008, no
pet.)(counsel's statement at hearing that his client “was served on
November 2nd” was not a judicial admission that defendant was
duly served); Benefit Planners, L.L.P. v. RenCare, Ltd., 81
S.W.3d 855, 861 (Tex.App.— San Antonio 2002, pet.
denied)(statements in affidavit that agent for service of process
“was served with process” and “was personally served” were not
judicial admissions of proper service); Smith v. U.S. Auto.
Acceptance 1995–1, Inc., No. 05–98–00061–CV, 2000 WL
375249, at *1–*2 (Tex.App.— Dallas April 13, 2000, no pet.)
(statements in affidavit that defendant “was served” were not
judicial admissions of proper service because defendant did not
admit to any of the underlying facts that would show service
complied with the rules); McGraw–Hill, Inc. v. Futrell, 823 S.W.2d
414, 417–18 (Tex.App.— Houston [1st Dist.] 1992, writ
denied)(statements in motion removing case to federal court that
defendant “was served with process” and received a copy of the
initial pleading were not judicial admissions of being “duly
served”).
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The statements made in Master Capital's motion for new
trial, in Ferrice's affidavit, and at the hearing on the motion reflect
actual knowledge of the pendency of the suit, and the actions
taken by Ferrice on Master Capital's behalf were consistent with
that knowledge. But these actions are irrelevant in the absence of
proper service. This is because actual notice to a defendant,
without proper service, is not sufficient to convey upon the court
jurisdiction to render a default judgment. Wilson, 800 S.W.2d at
836–37. Accordingly, the trial court erred in granting a default
judgment against Master Capital.
Master Capital Solutions Corp. v. Araujo, 2015 WL 268876, No. 08-13-00327-
CV at *4 (Tex. App.– El Paso, January 21, 2015, no pet. hist.).
The facts in the present case are even more favorable to the Sawyers
and Pax Crate than the facts present in Master Capital. As quoted by the
Carters, the Sawyers testified only that they “found out” that the Carters “filed
the Lawsuit through their attorney.” Brief of Appellees at 17-18. This is not
an admission of having been “duly served” in compliance with applicable
Texas Rules of Civil Procedure, or even of having been served at all. The
quoted-language is equally consistent with a trip down to the courthouse and
discovering the lawsuit in question as it is a representation of having been
duly served in accordance with all applicable rules. In case any doubt exists,
the Sawyers and Pax Crate deny that they were duly served in accordance
with the applicable Texas Rules of Civil Procedure.
Based upon the foregoing, the Sawyers and Pax Crate did not waive
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any contention regarding inadequacy of service in this appeal.
Absence of Elishah Sawyers’ Signature on the Certified Mail Receipt
In the second issue on appeal, the Sawyers and Pax Crate informed the
Court that valid certified mail service on Elishah Sawyers is not demonstrated
by the record in this appeal. This is so because Elishah Sawyers did not sign
the certified mail green card that was addressed to him. Brief of Appellants
at 24, CR 34. Texas Rule of Civil Procedure 107(c) states that when a
citation is served by registered or certified mail, the return by the officer “must
also contain the return receipt with the addressee’s signature.” Tex. R. Civ.
P. 107(c).
In response, the Carters suggest that the trial court and this Court may
“presume” that Robin Sawyers “intended to sign as her husband’s agent.”
Brief of Appellees at 19. However, such a presumption is prohibited both as
a matter of well-established Texas law, and as a matter of the record in this
appeal.
In contrast to the usual rule that presumptions will be made in support
of a judgment, when examining a default judgment, courts accord no
presumption of valid issuance, service, or return of citation. Uvalde Country
Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per
-20-
curiam).
Based upon the foregoing, the Carters’ invitation to this Court to
presume that Robin Sawyers signed “as her husband’s agent” is improper as
a matter of law.
Three additional reasons negate any possible presumption that Robin
Sawyers signed “as her husband’s agent.” First, the record contains no
evidence whatsoever that on the date of the alleged service by certified
mail Robin Sawyers was married to Elishah Sawyers. No such
representation is found in the Carters’ live pleading or the documents
attached thereto, or otherwise in the trial court record. Second, the certified
mail citation in this appeal does not purport to serve Elishah Sawyers, “by and
through his agent, Robin Sawyers.” CR 32. It purports to serve Elishah
Sawyers, individually, by certified mail. CR 32. Finally, when service is
performed by certified mail, Texas Rule of Civil Procedure 107(c) requires that
the officer’s return contain “the return receipt with the addressee’s signature.”
The rule does not say, “the signature of the addressee or his agent.”
The Carters contend that Elishah Sawyers’ failure to dispute “his wife’s
authority to sign as his authorized agent” somehow turns invalid service into
valid service. That argument incorrectly turns the applicable burden of proof
-21-
on its head. The party prevailing in the trial court bears the burden to prove
service of process was proper. Primate Constr., Inc. v. Silver, 884 S.W.2d
151, 153 (Tex. 1994) (per curiam). If the record fails to show strict
compliance with the applicable requirements relating to the issuance, service,
and return of citation, the attempted service of process is invalid and of no
effect. Wilson, 800 S.W.2d at 836. Thus, Elishah Sawyers’ alleged failure to
dispute “his wife’s authority to sign as his authorized agent” is irrelevant for
purposes of establishing the Carters’ failure to establish proper service on
Elishah Sawyers by certified mail.
No Date and Time Shown that Process was Received for Service
In the third issue on appeal, the Sawyers and Pax Crate informed the
Court that valid certified mail service was not obtained on Elishah Sawyers or
Robin Sawyers because the two returns of service addressed to them fail to
state on their face the date and time that the process was received for service
as expressly required by Texas Rule of Civil Procedure 16 and 107(b)(4).
Brief of Appellants at 26-27. CR 32-34.
The Carters respond that based upon other documents in the clerk’s
record, “[i]t is irrefutable that the clerk delivered the service documents to the
US Mail Service between July 11th and 14th.” Brief of Appellant at 20.
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The Carters cite to no authority whatsoever to demonstrate adequacy
of service through application of this so-called “irrefutable presumption.” The
Sawyers and Pax Crate cite to the plain wording of Texas Rule of Civil
Procedure 16, Texas Rule of Civil Procedure 107(b)(4), and the Supreme
Court of Texas’ opinion in Ins. Co. of State of Pennsylvania v. Lejeune, 297
S.W.3d 254, 256 (Tex. 2009) (per curiam) to demonstrate the inadequacy of
the Carters’ alleged service on Elishah Sawyers and Robin Sawyers by
certified mail in this case (“Here, although Lejeune served Insurance Co. by
certified mail, the record shows that the return of citation lacks the required
notation showing the hour of receipt of citation. Lejeune's default judgment,
therefore, cannot stand.”).
No Proper Service on Pax Crate - Incorrect Name and No Return
In the fourth and fifth issues on appeal, the Sawyers and Pax Crate
informed the Court that valid service was not obtained on Pax Crate & Freight,
Inc., because no return of service demonstrates service on any defendant
other than Elishah Sawyers or Robin Sawyers, and the only citation
addressed to any defendant other than Elishah Sawyers and Robin Sawyers
is directed to Pax Crate & Freight, and not Pax Crate & Freight, Inc. Brief of
Appellants at 27-30.
-23-
In response, the Carters rely upon Stephenson v. Corporate Services,
Inc., 650 S.W.2d 181 (Tex. App.– Tyler 1983, writ ref’d n.r.e.). On page 21
of their Brief of Appellees, the Carters purport to quote language from the
Stephenson opinion. The language purportedly quoted does not exist in the
Stephenson opinion.
Even if the quoted-language did appear therein, Stephenson is plainly
distinguishable from the facts presented in this case. In Stephenson, the
petition and citation were both addressed to the proper defendant: Franklin
National Corp., Ltd. The return of service showed service upon Franklin
National Corp (without no “Ltd.”). The Stephenson court held that where the
citation and petition were addressed to the properly named defendant, it was
of no consequence that the return of service failed to include “Ltd.,” at the end
of the corporate defendant’s name. Stephenson v. Corporate Services, Inc.,
650 S.W.2d 181, 183 (Tex. App.– Tyler 1983, writ ref’d n.r.e.).
That is entirely different than the situation presented in this case, where
the live pleading refers to Elishah Sawyers, individually and d/b/a PAX
CRATE & FREIGHT, INC.– CR 3– along with PAX CRATE & FREIGHT, INC.,
CR 4, the citation is addressed to Pax Crate & Freight (but not Pax Crate &
Freight, Inc.)– CR 35, and the return of service shows service only on Elishah
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Sawyers (with no reference at all to either Pax Crate & Freight or Pax Crate
& Freight, Inc.). CR 35. The errors and inconsistencies throughout the live
pleading, the citation and the return of service plainly create confusion as to
who was sued, in what capacity, who was served, and in what capacity. In
that regard, this case is factually closer to Uvalde Country Club v. Martin
Linen Supply Co., 690 S.W.2d 884, 884 (Tex. 1985), wherein the Supreme
Court of Texas invalidated a default judgment because the petition identified
the registered agent as “Henry Bunting, Jr.,” but the citation and return
referred to “Henry Bunting.” The Sawyers’ and Pax Crate’s fourth and fifth
issues should be sustained.
No Citation on Elishah and Robin Sawyers - Incorrect Address
In the sixth issue on appeal, the Sawyers and Pax Crate informed the
Court that valid service was not obtained on Robin Sawyers and Elishah
Sawyers because the return of service contained an incorrect zip code in the
Sawyers’ address. Brief of Appellants at 30-31.
In response, the Carters cite to a 2006 Fort Worth Court of Appeals
memorandum opinion holding that a minor variation in the address for service
contained in the return of service is insufficient to invalidate service. Brief of
Appellees at 24.
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In venturing back 9 years and 250 miles to the north-northwest, the
Carters ignored an opinion from this very Court less than one year ago:
A typographical error concerning the defendant's address in the
return of service does not constitute strict compliance with the
rules governing service and is grounds for setting aside a default
judgment. See Royal Surplus Lines Ins. Co. v. Samaria Baptist
Church, 840 S.W.2d 382, 383 (Tex. 1992) (per curiam) (affirming
court of appeals' reversal of default judgment when citation was
sent to “1201 Bassie” when registered agent's correct address
was “1201 Bessie”); see also Uvalde Country Club, 690 S.W.2d
at 885 (holding no strict compliance when original petition stated
entity could be served by serving its registered agent “Henry
Bunting, Jr.” and return of service stated that sheriff served
“Henry Bunting”).
Landagan v. Fife, No. 01-13-00536-CV, 2014 WL 2809813, at *4 (Tex. App.–
Houston [1st Dist.] June 19, 2014, no pet.) (mem. op.).
Based upon this Court’s opinion in Landagan, valid service was not
obtained on Robin Sawyers and Elishah Sawyers. The address on the return
of service was incorrect due to the presence of an incorrect zip code. Brief
of Appellants at 30-31, CR 32-33. Accordingly, the Sawyers’ and Pax Crate’s
sixth issue on appeal should be sustained.
No Accurate Description of What Pleading was Served
In the seventh and eighth issues on appeal, the Sawyers and Pax Crate
establish that valid service was not obtained because “an accurate description
of what pleading was served” is absent from all three returns of service in
-26-
violation of Texas Rule of Civil Procedure 107(b)(3), and absent from all three
citations in violation of Texas Rule of Civil Procedure 99(b)(4).
In response, the Carters inexplicably tell this Court 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.”
Brief of Appellees at 25.
The certified mail citation addressed to Elishah Sawyers plainly states
that the pleading accompanying it is “Plaintiff’s ORIGINAL PETITION”
(capitalized emphasis in original), and not “Plaintiffs’ Original Petition and
Request for Permanent Injunction.” CR 32. The same is true of the certified
mail citation addressed to Robin Sawyers. CR 33. The citation addressed to
“Pax Crate & Freight” (and not Pax Crate & Freight, Inc.), expressly states
that “Plaintiff’s Original Petition” accompanies the citation, and not “Plaintiffs’
Original Petition and Request for Permanent Injunction.” CR 35. The
Sheriff’s Return pertaining to alleged service on Elishah Sawyers refers to the
served pleading only as “Plaintiff’s Petition.” CR 35. The Carters’
representation to this Court 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,” is both inaccurate and
-27-
disappointing. Brief of Appellees at 25.
The return of service is not a trivial, formulaic document. It has long
been considered prima facie evidence of the facts recited therein. Primate
Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). “The officer's return
does not cease to be prima facie evidence of the facts of service simply
because the facts are recited in a form rather than filled in by the officer. It is
the responsibility of the one requesting service, not the process server, to see
that service is properly accomplished. Tex.R.Civ.P. 99(a). This responsibility
extends to seeing that service is properly reflected in the record.” Primate
Const., Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994).
In this case, the only alleged service reflected in the three returns of
service is “the petition,” CR 32, 33 or “Plaintiff’s Petition,” CR 35, but not
“Plaintiffs’ Original Petition and Request for Permanent Injunction.”
Accordingly, the record does not reflect valid service on the Sawyers or Pax
Crate.
No File Mark on Sawyers Returns of Service = No Service
In the ninth issue presented, Robin Sawyers and Elishah Sawyers
advised the Court that the absence of any clerk’s file mark on the returns of
service addressed to Robin Sawyers and Elishah Sawyers there is no proper
-28-
service by certified mail on Robin Sawyers or Elishah Sawyers. Tex. R. Civ.
P. 107(h). Brief of Appellants at 34-35.
The Carters advise the Court that Rule 107(h) merely requires proof of
service to be on file with the clerk for at least 10 days under factual
circumstances not present in this case. Brief of Appellees at 26-27. The
Carters are mistaken.
Rule 107(h) states that “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 alternate
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.” Rule 108 and
Rule 108a pertain to service of process in another state (Rule 108) or in a
foreign country (Rule 108a). The Carters sought service on the Sawyers and
Pax Crate in the State of Texas. CR 32, 33, 35. Therefore, the clause
addressing Rules 108 and 108a should not be considered for purposes of
analysis in this case. Further, the clause addressing “an alternative method
under Rule 106" also does not apply since the Carters did not seek service
upon the Sawyers or Pax Crate pursuant to Texas Rule of Civil Procedure
106(b). See Blackburn v. Citibank (South Dakota) N.A., 2006 WL 1629770,
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No. 05-05-01082-CV (Tex. App.– Dallas 2006, no pet.) (mem. op.)
(“alternative method” means substituted service under Rule 106(b)). As a
result, the Carters were obligated to ensure that the record establishes proof
of service on file for at least ten days exclusive of the day of filing and the day
of judgment. Tex. R. Civ. P. 107(h).
The Carters inform this Court that the Sawyers were served on July 14,
2014, citing the date on the certified mail green cards for that proposition.
Brief of Appellees at 26. They conclude that since “the default judgment was
granted almost two months later on September 12, 2014, CR 50-51, “the
required 10-day period was met.” Brief of Appellees at 26. However, the
Carters’ conclusion cannot be drawn from the facts available on the face of
the record.
What if the United States Postal Service misplaced the certified mail
receipts and they were not found and delivered to the Waller County District
Clerk’s office until September 5, 2014? That period from September 5, 2014
to September 12, 2014, is insufficient to comply with the ten-day requirement
set forth in Rule 107(h). A clerk’s file mark on the certified mail receipt,
showing the date that the receipt came back into possession of the Waller
County District Clerk, could certainly establish the date that proof of service
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(the certified mail receipts) came into the Waller County District Clerk’s
possession for the requisite period prior to default judgment. But the absence
of any such file stamp on the returns of service makes it impossible to know
whether or not the returns of service were “on file for at least ten days
exclusive of the day of filing and the day of judgment.” Tex. R. Civ. P. 107(h).
Lefton v. Griffith, 136 S.W.3d 271 (Tex. App.– San Antonio 2004, no
pet.) provides no support for the Carters’ position. In Lefton, the defendants
complained that although the returns of service bore file marks showing the
date that the returns of service were filed, the file stamp had not been signed
by a representative of the District Clerk's Office. Lefton, 136 S.W.3d at 280.
In the present case, the Sawyers and Pax Crate make no complaint about
any missing “signature.” Complaint is made about the missing file mark.
Therefore, Lefton simply does not apply.
For all of the foregoing reasons, the Carters’ failure to ensure
compliance with Texas Rule of Civil Procedure 107(h) for the requisite period
prior to entry of default judgment establishes that service, if any, failed to
comply with the applicable Texas Rules of Civil Procedure as a matter of law.
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The Order Granting Default Judgment is Interlocutory
The Carters cite no authority for their proposition that the unilateral act
of the Waller County District Clerk in preparing an abstract of judgment that
does not contain prejudgment interest somehow constitutes a “waiver” of
prejudgment interest by the Carters. Brief of Appellees at 29. The
undersigned has found no authority of any kind, despite diligent search,
standing for the proposition that a district clerk’s ministerial completion of her
duties somehow constitutes a waiver of remedy by one of the parties to the
lawsuit.
The only case cited in this section of the Carters’ brief– Jones v. Griege,
803 S.W.2d 486, 487-88 (Tex. App.– Dallas 1991, no writ), addresses a
party’s intentional and knowing conduct in filing a written waiver with the clerk
of a court. No such written waiver exists in this case. Therefore, Griege
provides no authority for the proposition that a clerk’s preparation of an
abstract of judgment constitutes some sort of intentional and knowing “waiver”
of a remedy by a party to the lawsuit.
The trial court’s failure to grant any relief on the Carters’ request for two
permanent injunctions also makes the Order Granting Default Judgment
interlocutory. The Court need only compare the Carters’ injunction pleadings
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to the Order Granting Default Judgment to see that.
The Carters pleaded for a permanent injunction against the “use of
excessively loud dirt bikes or other ATV’s on the Defendants’ property,” and
on the moving of Pax Crate to the real property in question. CR 6-7. The trial
court did not grant any permanent injunction whatsoever. CR 50-51. The
word “permanent” or “permanently” never appears in the Order Granting
Default Judgment. CR 50-51. The so-called injunction does not state who is
enjoined from taking what action, for what period of time. As a result, it lacks
the necessary certainty to finally resolve the pleaded issues between the
Carters and the Sawyers. CR 6-7, 50-51.
The language used by the trial court is almost identical to the language
used in Chandler v. Reder, 635 S.W.2d 895 (Tex. App.– Amarillo 1982, no
writ) and Disco Machine of Liberal Co. v. Payton, 900 S.W.2d 71 (Tex. App.–
Amarillo 1995, writ denied), and declared to be insufficient to constitute a final
judgment.
In those cases, the trial courts issued orders stating that motions for
summary judgment were granted, but failed to include decretal language
expressly resolving the pleaded dispute between the parties. In each case,
the court of appeals concluded that an order granting a particular motion, but
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failing to expressly set forth the relief awarded, made the order in question
interlocutory, and not a final, appealable judgment.
Legally and Factually Insufficient Evidence Supports Damages
The record in this appeal lacks legally and factually sufficient evidence
to support the amount of damages awarded by the court. Evidence must be
provided to establish both the existence of compensable damages and to
justify the amount awarded. Saenz v. Fid. & Guar. Ins. Underwriters, 925
S.W.2d 607, 614 (Tex. 1996). See also Bentley v. Bunton, 94 S.W.3d 568,
605 (Tex. 2002).
In this case, no evidence establishes how the trial court determined that
actual damages of $480,000 were appropriate and supported. As a result,
that award cannot stand.
WHEREFORE, PREMISES CONSIDERED, Appellants, Elishah
Sawyers, Pax Crate & Freight, Inc., and Robin Sawyers pray that the Court
grant the relief sought in their Brief of Appellants in this appeal.
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Respectfully submitted,
LAW OFFICES OF SCOTT ROTHENBERG
/s/ Scott Rothenberg
SCOTT ROTHENBERG
scott@rothenberglaw.com email
State Bar No. 17316750
2777 Allen Parkway, Suite 1000
Houston, Texas 77019-2165
(713) 667-5300 telephone
(713) 667-0052 telecopier
COUNSEL FOR APPELLANTS,
ELISHAH SAWYERS,
PAX CRATE & FREIGHT, INC.,
and ROBIN SAWYERS
Certificate of Compliance
Based upon the word counting function of Wordperfect X4 for Windows,
this Amended Reply Brief of Appellants contains 7,483 words excluding the
portions of the brief excluded in Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Scott Rothenberg
SCOTT ROTHENBERG
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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 29th day of April, 2015, as follows:
Mr. Bruce C. Tough
The Tough Law Firm
819 Crossbridge Drive
Spring, Texas 77373
(281) 681-0808 telephone
(281) 681-0809 fax
btough@toughlawfirm.net - email
/s/ Scott Rothenberg
SCOTT ROTHENBERG
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