ORALARGUMENT REQUESTED NO: 01-13-01005-CV
INTHE COURT OF APPEALS FORTHEFIRSTDISTRICT OF TEXAS
B & SONS CONSTRUCTIONLLC Appellant
v. ROOD HOLDINGS, LLC Appellee
BRIEF OF THEAPPELLANT
PETERCOSTEA TBN 04855900 ThreeRiverway, Suite 1800 Houston, Texas 77056 Tel. 713-337-4304 Fax 713-659-5302 ATTORNEYFORAPPELLANT B & SONS CONSTRUCTIONLLC ACCEPTED 01-15-00355-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 8/31/2015 10:39:43 AM CHRISTOPHER PRINE

CLERKIDENTITY OF PARTIES AND COUNSEL Appellant: B & SONS CONSTRUCTIONLLC 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: ChristinaR. Johnson Gregory T. Brewer FIDELITYNATIONAL LAW GROUP 5151 BeltwayRoad, Suite 410 Dallas, Texas 75254 Tel. 972-812-9400 Fax 972-812-9408 Email: Christina.johnson@fnf.com
Trial Court: Hon. Alexandra Smoots-Hogan, Judge Presiding 164thJudicial District Court Harris County Civil Courthouse 201 Caroline, TwelfthFloor Houston, Texas 77002 Tel. 713-368-6264

1.TABLE OF CONTENTS CERTIFICATEOF INTERESTEDPARTIES
....................................i TABLE OF CONTENTS
............................................................ ii TABLE OF AUTHORITIES
....................................................... 111 STATEMENTOF THE CASE
.................................................... 1 ISSUES PRESENTED.............................................................. 2 STATEMENTOF FACTS
.......................................................... 3 TheUnderlying Suit
........................................................................... 3 Service ofProcess and B & Sons........................................................ 4 STANDARD OF REVIEW.......................................................................... 6 SUMMARY OF THE ARGUMENTAND ARGUMENT
................................................................................................ 7 Motion for NewTrial.
............... ........................................................ 7 No Service ofProcess Was Accomplished
......................................... 7 TheLaw
.............................................................................................. 9 CONCLUSION:
..................................................................... 14 PRAYER
............................................................................... 14 CERTIFICATE OF SERVICE
...................................................... 14 CERTIFICATE OF COMPLIANCE
.............................................. 15 APPENDIX..
................................................................................................. 16
11.TABLE OF AUTHORITIES CASES Alexanderv. Lynda'sBoutique, 134 SW3d 845 (Tex. 2004)
....................... 10 Cliffv. Huggins, 724 SW2d 778 (Tex. 1987)
.............................................. 6 Comm's ofContracts v. ArribaLtd, 882 SW2d 576 (Tex.App.-Houston [1stDist.] 1994)
.................................................... 13 Evans v. Woodward, 669 SW2d 154 (Tex.App.-Dallas 1984)
...................... 12 Fidelity and Guaranty Insurance Companyv. Drewery Construction Company, 186 SW3d571 (Tex. 2006)
.......................................................... 7 Goode v. Shoukfeh, 943 SW2d 441 (Tex. 1997)
........................................... 6 Jaco v. Rivera, 278 SW3d 872-873 (Tex.App.-Houston[14thDist.] 2009)
................................................ 10 Larav. 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 SW2d442 (Tex. 1996)
........................ 7 Martinezv. Valencia, 824 SW2d 719 (Tex.App.-EI Paso 1992)
................... 11 Mathis v. Lockwood, 166 SW3d 743 (Tex. 2005)
......................................... 6 Peraltav. Heights Medical Center, Inc., 485 US 80,108 S.Ct. 896,99L.Ed2d 75 (1988)
.................................. 9 PNS Stores, Inc. v. Rivera, 379 SW3d 3d 267 (Tex. 2012)
........................... 10 Royal Surplus Lines Insurance Company v. SamariaBaptistChurch, 840 SW2d 382 (Tex. 1992)
................................................................... 13111. State FarmLife Insurance Companyv. Mosharaf, 794 SW2d578 (Tex.App.-Houston [1stDist.] 1990)
.......................... 12 Strackbeinv. Prewitt, 671 SW2d 37 (Tex. 1984)
............................................ 6 Taylorv. State, 293 SW3d 913 (Tex.App.-Austin 2009)
............................... 13 TitanIndemnification Companyv. Old Southern Insurance Group, Inc., 221 SW3d703 (Tex.App.-SanAntonio 2006)
..................................... 7 TriadContractors, Inc. v. Kelly, 809 SW2d683 (Tex.App.-Beaumont 1991)
........................................ 12 Woodv. Brown, 819 SW2d 799 (Tex. 1991)
................................................. 7

IV.ORAL ARGUMENTREQUESTED NO: 01-13-01005-CV
IN THE COURT OF APPEALS FORTHE FIRSTDISTRICT OF TEXAS
B & SONS CONSTRUCTIONLLC Appellant
v. ROODHOLDINGS, LLC Appellee
BRIEF OF THE APPELLANT
TO THE HONORABLE COURT OF APPEALS: AppellantB & Sons Construction LLC ("B & Sons") respectfully moves the Court ofAppeals to Reverse the Final Judgment ofDefault signed by the Trial Court against B & Sons and in favor ofRood Holdings LLC ("Rood") on January 22,2015. (Tab B) STATEMENT OF THE CASEPage 2 This case began on October 10, 2013 as an action for breach ofcontract and related claims by United Rentals (North America), Inc. ("United") against various parties, including Rood Holdings, LLC, Appellee. (CR3-12) On April 8, 2014 Rood countersued United to quiet title and for declaratory judgment. (CR26-70) On April 28, 2014 Rood filed a Third Party Petition against B & Sons Construction LLC and other parties. The cause ofaction against B & Sons was to quiet title and for declaratoryjudgment. (SCR 69-80) On November 17,2014Rood filed a Motion for DefaultJudgment against B & Sons. (CR96-102) 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 againstB & 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 onMarch 11,2015. (CR 112-120, 126) (Tab C) B & Sons timely appealed on April 18, 2015. (CR 127-128) (Tab D) ISSUES PRESENTEDPage 3 Didthe Trial Court errinrefusingto set aside the defaultjudgment? 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 ofVR Wood, and Rood. (CR 3-12) United claimed it sold, rented, or delivered to Wood goods and equipment for which Wood did notpay and remained delinquent as ofthe 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, andUnited suedRood 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 ofthepropertywas Rood. On April 28, 2014 Rood sued B & Sons. (SCR 69-80) It alleged that on January 15,2013 itpurchasedthe propertywhere the industrialparkwas located.Page 4 (CR78) OnFebruary 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 andto remove the cloud on the property. It allegedthat "a genuine dispute exists as to the title ofthe Property," as betweenRood and B & Sons. (CR 83) Its actionwas also denominated as one for declaratoryjudgment seekingto have the court declare Rood as "the legal orequitable ownerofthe Property." (CR 84) Service ofProcess onB & 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 thatthe RegisteredAgent atthat 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 ofMotion for Alternate Service, he believed service should be had at 522 Shane Street. (SCR 8) ("It is my beliefthat" B & Sons "would receive effective notice of this suit by leaving a copy ofthe 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 24,2014the 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 overthe age ofsixteen (16); by posting a copy ofthe petition and citation at that address; and by mailing by certified mail "and/or" regular mail
a copy ofthe citation andpetition atthat address. (CR90-92) (Tab E) OnNovember 17,2014Rood filed aMotion for DefaultJudgment 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 ofLarry 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 thatPham was served "personally." (CR93, 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 defaultjudgment
was not "final andnot appealable." (CR 107)Page 6 On January 22, 2015 the court signed another Order dismissing Wood from the suit withoutprejudice. However, the court's January 22, 2015 Order also stated thatthe "InterlocutoryDefaultJudgment againstB & Sons Construction entered on December 10,2014"was "Final andAppealable." (CR 108-109; Tab B) On February 10, 2015 B & Sons filed a Motion for New Trial (SCR 132- 150) supported by the Affidavit ofLarry 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 orthat any legal documents hadbeen seen, found, or affixed onthe door ofthe 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 whenthe trial court acts withoutreference to any guiding rules or principles. Goode v. Shoukfeh, 943 SW2d 441, 446 (Tex. 1997). To set aside a defaultjudgment 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 SW3d743,746 (Tex. 2005).Page 7 SUMMARYOF THE ARGUMENT AND ARGUMENT Motion for NewTrial A defaultjudgmentmay be attacked by way ofa 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 defaultjudgment 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 defaultjudgment must generally be set aside without further showing where the defendant never received service ofprocess. Fidelity and Guaranty Insurance Companyv. Drewery Construction Company, 186 SW3d 571,574 (Tex. 2006). No Service ofProcess Was Accomplished According to the Affidavit ofLarry 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 orthe petition affixed to the door at 600 Shane Street. Pham does not reside atthat address. No employees ofB & Sons workthere. The housePage 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 ofthe house is about 30 feet from the gate. To reach the house, the process serverwould have had to go throughthe gate and the gate was kept locked. (SCR 148-149) Yet, the Affidavit of JosephRodriguez states he postedthe citation andpetition "to the front door at 600 Shane Street," not on the iron gate. Likewise, butunexplainably, 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 notpostedin aplace as to protectthem againstthe wind orthe 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 possibilitythat the citation andthe petition may nothave beenPage 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. Noonereported to himthe existence onthe property, orthe finding
on the property, ofany 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 ornotificationby anyone onthe premises. (SCR 148-149) As for the phone number which the process server claims he tried to reach Pham, it hadnotbeen in use for aboutthree (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 onlybecame aware ofthe suit after December 10, 2014 when the clerk ofthe court mailed a notice to 600 Shane Street that a defaultjudgmenthad been taken against B & Sons. (SCR 149) The Law The US Supreme Courthas ruled that "ajudgment 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 Peraltato holdthat a defaultjudgment"is void ifthe defects in service are soPage 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 ofthe 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 questionthat goes to the crux ofhow defaultjudgments can be taken and howthey
are to be set aside: "these procedures focus on what has always been and always should be the critical question in any defaultjudgment 'Why did the defendant not appear?'
... Ifthe answer to this critical question is 'Because I didn't get the suit papers,' the defaultgenerally mustbe set aside." Id at 572. B & Sons answers this "critical question" as follows: "I didn't get the suit papers." (See Affidavit ofLarry Pham, SCR 148-150) Hence, the defaultjudgment 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 servedthe defaultjudgmentmustbe set aside)Page 11 Fidelity is further relevant in additional respects. The Fidelity defendanthad actually been servedthrough its registered agentbutthe "suitpapers" 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 ofappeals 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 defaultjudgment] need not be good to suffice." At the opposite end, the standard for affirming defaultjudgments is conscious indifference not negligence. Levine v. Shackelford, Melton & McKinley, LLP, 248 SW3d 166, 168 (Tex. 2008). Even a "slight excuse" mayjustify granting a new trial. Lara v. Rosales, 159 SW3d 121, 124 (Tex.App.-Corpus Christi 2004). There is evidence that some ofthe individuals residing at 600 Shane Street did not speak English. One court has found this particularity sufficient to set aside
a defaultjudgment. Martinez v. Valencia, 824 SW2d 719 (Tex.App.-EI Paso 1992) (defendants, who were unable to read English, mistakenly believed the suit papers relatedto apending settlement).Page 12 Similarly, there is the potential that the citation andpetitionmighthave 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 andpetitionwere lostin the insurer's office). Defaultjudgments have also been set aside even where the suit papers were lost while in the custody or possession ofsophisticated 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" inthe 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," butthe "suitpapers" had been lost or misplaced. The situation is even more excusable here: B & Sons hadnever been served. B & Sons first learned of the existence of the suit after receiving the notice of defaultjudgment from the court and then acted promptly to protected itselfagainst the defaultjudgmentbecoming enforceable. Rood has not presented any controverting evidence to Pham's rendition of the events supportingthe conclusionthathe hadnotbeen 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 trialjudge's September24,2014 Order for Substituted Service identified four methods ofsubstituted service. (CR 94-95) Rood's Motion for Default states, erroneously, that Rood servedB & Sons on October 13,2014by "personally delivering" the citation and petition to Pham "by posting a copy ofthe 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 citationwas posted onthe front doorofthehouse. (CR93, 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 ofContracts 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 LinesPage 14 Insurance Company v. Samaria Baptist Church, 840 SW2d 382, 383 (Tex. 1992) (defaultjudgment based on substituted service set aside because citation was sent tothe wrong address). CONCLUSION B & Sons was not served with the suit. The trialjudge erred in denying B & Sons' Motion for NewTrial and in failing to set aside the defaultjudgment. PRAYER WHEREFORE, PREMISES CONSIDERED, B & Sons respectfully moves the court ofappealsto reverse the denial ofits Motion for NewTrial. Respectfully submitted, BY: / /ss/ /petercostea TBN 04855900 Three Riverway, Suite 1800 Houston, Texas 77056 Tel. 713-337-4304 Fax713-659-5302 ATTORNEYFORAPPELLANT B & SONS CONSTRUCTION, LLC CERTIFICATE OF SERVICE I certify that on August 29, 2015 a true and correct copy ofthe 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 LBJFreeway, Suite 700, Dallas,Page 15 Texas 75251.
//ss//petercostea PeterCostea CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule ofAppellate Procedure 9.4(i)(2)(B) and Local Rule 32.3,the undersigned certifies: 1. This Briefcomplies withthe type-volume limitations ofTexas Rule of Appellate Procedure 9.4(i)(2)(B) because: it contains 2,962 words, excluding the parts ofthe Briefexemptby TexasRule ofAppellateprocedure 9.4(i)(2)(B). 2. The undersigned has provided an electronic version of the Brief to both the court and opposing counsel. Ifthe Court requests, a copy ofthe word or line printoutwill be provided. 3. The undersigned understands that a material misrepresentation in completing this certificate, or circumvention ofthe type-volume limits in Texas Rule ofAppellate Procedure 9.4(i)(2)(B) may result in the Court striking the Brief andimposing sanctions againstthe person signingthe Brief. / /ss/ /petercostea Peter CosteaPage 16 APPENDIX 1. Order Granting Default Judgment as to Third Party Defendant B & Sons ConstructionLLC (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 ofThird Party Defendant B & Sons Construction, LLC (March 11, 2015) (Tab C) 4. The Notice of Appeal of Third Party Defendant B & Sons ConstructionLLC (April 18, 2015) (Tab D) 5. Order Granting Third Party PlaintiffRood 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 

# yJJ CAUSE NO. 2013-60986 UNITED RENTALS (NORTH AMERICA), INC., Plaintiff, "S. VR WOOD, INC., HUONG KIM NGUYEN, also known as HUONG K. NGUYEN, also known as HUONG NGUYEN, INDIVIDUALLY, and ROOD HOLDINGS, L.L.C. Defendants,
VS. Vl\TF INC. d/bfa VRWOOD INC., SON KIM NGUYEN, and B & SONS CONSTRUCTION, LLC, Third Party Defendants. § § § § § § § § § § § § § § § § § § § § § § § IN THEDISTRICT COURT

164Til JUDICIAL DISTRICT

HARRIS COUNTY, TEXAS 

## ..

ORDERGRANTING DEFAULTJUDGMENT 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 prescnbedby law and thatthe proofofservice has been on file WIth the Clerk ofCourt at least ten days, excludll1g the day of filmg and today The Court, upon considelation of pleadings, officlal records on file in thiS cause, and the eVidence tendered by Thlrd Palty Plamtlff, IS ofthe opinion that defaultJudgment should be rendered for Plamtlff The Court finds that as a result ofDefendant B & Sons ConstructIon, LLC's faLlure to

RECORDER'S**D!I~~NOUM** ThiS mstrumem Ii**~r**qualily at the time of Imagmganswer. 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.

("Property"), 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, oftheMap records ofHarris County, Texas.
bRood 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 pUJchased 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 ofthe Property;



### 106IT 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 ofLhis Default Judgment be recOlded Inthe officIal real plopeliy recOId ofHarns County, Texas, and IT IS ORDERED that Rood Holdings, L L C IS entItled to reasonable and necessary attorney's fees inthe followmg amounts'
• $2,092 50 through the conclUSIOn oftl1JS 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 ofAppeals,

I) $5,00000 In the event of an unsuccessful PetitIon for ReVIew lTI the Texas Supreme Courtby the Defendant's and

e $5.00000 Il1 the event ofan oral argument m the Texas Supreme COUlt
InwhIch Rood Holdmgs, L L C prevaIls ThIS Default Judgment, by itself, IS not final and not appealable, and does not dIspose ofall 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 10 2014 ,2014.



### 107

# TA1/16/20153:33:14 PM Chris Damel • District Clerk Harris County Envelope No' 3802905 By' HENDERSON, MARCELLA L CAUSE NO. 2013-60986 UNITED RENTALS (NORTH AMERICA), INC., Plaintiff,
VS. VRWOOD, INC., HUONG KIM NGUYEN, also known as HUONG K. NGUYEN, also known as HUONGNGUYEN, INDIVIDUALLY, and ROOD HOLDINGS, L.L.c. Defendants,
VS. VNF INC. d/bla VRWOOD INC., SON KIM NGUYEN, and B & SONS CONSTRUCTION, LLC, Third PartyDefendants. § § § § § § § § § § § § § § § § § § § § § § § IN THEDISTRICT COURT

164TH JUDICIAL DISTRICT

HARRIS COUNTY,TEXAS ORDER GRANTING ROOD HOLDINGS, L.L.C'S MOTION TO DiSMISS THIRDPARTYDEFENDAl\TTS VNFINC. d/b/aVRWOOD INC. AND SON KIM NGUYEN WITHOUT PREJUDICE On thiS Day,
_______ , 2015, came to be considered, Defendant! ThlrdParty PlamtlffRood HoIdmgs, 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 GRANTINGRoodHoldlllgs'MotIon to Dismiss wahoutPrejudIce

RECORDER'S MEMORANDUM ThiS Inslrumenl ISofpoor quality atthe time of Imaging Page 1 of2 

### 108Defendant! Third-Party PlamtlffRood 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 CauseNumber are hereby Dlsmlssed, withoutprejudice 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 agamstVRWood, Inc and Huong KIm Nguyen entered on May29, 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 GRANTINGRoodHoldmgs'MotLOn to Dismiss wahautPrejudIce Page 2of2 

### 109CAUSE NO. 2013-60986 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
UNITED RENTALS (NORTH AMERICA), INC., § § § § § § § § § § § § § § § § § § § § § § § IN THE DISTRICT COURT 

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Plaintiff,
VS. VR WOOD, INC., HUONG KIM NGlNEN, also known as HUONG K. NGUYEN, also known as HUONG NGUYEN, INDIVIDUALLY, and ROOD HOLDINGS, L.L.c. Defendants,
VS. VNFINC. d/b/a VRWOOD INC., SON KIM NGUYEN, and B & SONS CONSTRUCTION,LLC, Third PartyDefendants. 

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164TH JUDICIAL DISTRJCT

HARRIS COUNTY, TEXAS ORDERDENYING MOTION FORNEWTRIALOFTHIRD 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 J0, 2014 is not set aside and remains in full force and effect.

SIGNED on the

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### Ma.rch ,2015.

ORDERDENYINGB & SON'SMOTIONFORNEWTRIAL PAGE 1
RECORDER'S MEMORANDUM This Instrumenlls ofpoor qualrty 126 at the limeof Imaging9/15120141:43:28 PM Chris Daniel - District Clerk Harris County Envelope No: 2492376 By: WILUAMS, CHANDA D CAUSENO.: 2a13-60986 UNITED RENTALS (NORTH AMERICA),INC.,

VS. VRWOOD, INC., HUaNG KIM NGUYEN, also known as HUONG K. NGtNEN, also known as HUONG NGUYEN, INDIVIDUALLY, and ROOD HOLDINGS,LL.C, Defenda.nts,
VS. vNFINC. dlbla VR WOOD INC, SON KIM NGUYEN, and B & SONS CONSTRUCTION,LLC, Third PartyDefendants. § § § § § § § § § § § § § § § § § § § § § § § IN THE DISTRICTCOURT

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164TH JUDICIAL DISTRICT

HARRIS COUNTY,TEXAS ORDER GRANTINGTHIRD-PARTY PLAINTIFFROOD HOLDINGS.L.LC.

### 's MOTION FOR SUBSTITUTED SERVICE ON THIRD-PARTYDEFENDANTB & SONS CONSTRUCTiON.LLC. ON THIS DAY, came to be consldered, Third-Party P!amtIff, Rood HoldIngs, L L C.'s (hereinafter "Third-Party PlaintifflRoodHoldmgs"), Motion for Substituted Service ofProcess on Third-Party Defendant B & Sons Construction, LLC (hereinafter "B & Sons ConstructiOn") After consldenngThird-PartyPla1ntlff'sMotion and the supportIng eVldence, the Court finds that Third-PartyPlaintiff's attempts to locate and serveB & SonsConstructionhavebeen 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, propernOtIce ofthe suit. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that ThIrd-PartyPlaintiff, 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 ofthefollowing methods. i) Leavmg a true copyofthe CitatIOn, along with the PetitlOD wIth anyone more than sixteen years ofage at 600 Shane Street, Houston, Texas 77037. 2) Securely attachmg acopy ofthe Cltation, along with the Petition on thefront door
or on the front gate ofthe property at 600 Shane Street, Houston, Tex.as 77037 3) By mailIng acopy ofthe CltatlOn along with the PetItion, bycertified 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 CoUttdeems as reasonably effecllve to glYe Third-PartyDefendantB & Sons ConstructiOn notice ofthe suit. Signed un this the 

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95CauseNr.: 2013-60986 4/18/201510436 PM Chris Daniel· District Clerk Harris County EnveloPe No. 4943496 By: Phyllis Washington Filed 4/20/201512:0000 AM

UNITED RENTALS (NORTH AlVIERICA), INC 

## s s s IN THEDISTRICT COURT Plaintiff 

## s v. 

## s S VRWOOD, INC,HUONGKIM S NGUYEN, also known as HUONGK. S NGUYEN, also known as HUaNG S NGUYEN, IJ\IDIVIDUALLY, and ROOD S HOLDINGS, LLC, S Defendants S
v. VNF INC d/blaVRWOODINC, SON KIMNGUYEN, and B & SONS CONSTRUCTION, LLC, Third PartyDefendants S S S S S S S HARRIS COUNTY, TEXAS

164THTIJDICIAL DISTRICT THENOTICE OF APPEAL OF THIRDPARTY DEFENDANT B & SONS CONSTRUCTION. LLC TO THE HONORABLE STATEDISTRICTJUDGE: Third Party Defendant B & Sons Construction, LLC hereby appeals to the First or the Fourteenth Court ofAppeals ofthe State ofTexas theFinal Judgment signedby the districtjudge on January 22,2015. Respectfully submitted, BY:/Iss// petercostea TBN04855900 Three Riverway, Suite 1800 Houston, Texas 77056 Tel. 713-337-4304 Fax 713-659-5302 ATTORNEYFORTH1RD PARTYDEFENTIANT B & SONS CONSTRUCTION, LLC

127CERTIFICATEOF SERVICE Tcertify that on April 18, 2015 a true and correct copy ofthe foregoing pleading was served electronically by the clerk ofthe 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 LBJFreeway, Suite 700, Dallas, Texas 75251; and Ms, Christina R, Johnson, Fidelity National Law Group, 5151 Beltline Road, Suite 410, Dallas, Texas 75254. //ss//petercostea Peter Costea

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