ORAL ARGUMENT REQUESTED 

NO: 01-13-01005-CV 

IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS 

B & SONS CONSTRUCTION LLC 

Appellant 

v. 

ROOD HOLDINGS, LLC 

Appellee 

BRIEF OF THE APPELLANT 

PETER COSTEA 

TBN 04855900 

Three Riverway, Suite 1800 

Houston, Texas 77056 

Tel. 713-337-4304 

Fax 713-659-5302 

ATTORNEY FOR APPELLANT 

B & SONS CONSTRUCTION LLC 

ACCEPTED

01-15-00355-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/31/2015 10:39:43 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/31/2015 10:39:43 AM CHRISTOPHER A. PRINE Clerk
IDENTITY OF PARTIES AND COUNSEL 

Appellant: B & SONS CONSTRUCTION LLC 

Counsel: Peter Costea 

Three Riverway, Suite 1800 

Houston, Texas 77056 

Tel. 713-337-4304 

Fax 713-659-5302 

Email: peter@costealaw.com 

Appellee: ROOD HOLDINGS LLC 

Counsel: Christina R. Johnson 

Gregory T. Brewer 

FIDELITY NATIONAL LAW GROUP 

5151 Beltway Road, Suite 410 

Dallas, Texas 75254 

Tel. 972-812-9400 

Fax 972-812-9408 

Email: Christina.j ohnson@fnf.com 

Trial Court: Hon. Alexandra Smoots-Hogan, Judge Presiding 

164th Judicial District Court 

Harris County Civil Courthouse 

201 Caroline, Twelfth Floor 

Houston, Texas 77002 

Tel. 713-368-6264 

1. 
TABLE OF CONTENTS 

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

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

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

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

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

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

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

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

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

SUMMARY OF THE ARGUMENT AND 

ARGUMENT ................................................................................................ 7 

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

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

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

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

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

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

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

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

11. 
TABLE OF AUTHORITIES 

CASES 

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

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

Comm's of Contracts v. Arriba Ltd, 882 SW2d 576 

(Tex.App.-Houston [1st Dist.] 1994) .................................................... 13 

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

Fidelity and Guaranty Insurance Company v. Drewery Construction 

Company, 186 SW3d 571 (Tex. 2006) .......................................................... 7 

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

Jaco v. Rivera, 278 SW3d 872-873 

(Tex.App.-Houston[14th Dist.] 2009) ................................................ 10 

Lara v. Rosales, 159 SW3d 121 

(Tex.App.-Corpus Christi 2004) .......................................................... 11 

Levine v. Shackelford, Melton & McKinley, LLP, 

248 SW3d 166 (Tex. 2008) ................................................................. 11 

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

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

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

Peralta v. Heights Medical Center, Inc., 

485 US 80,108 S.Ct. 896,99 L.Ed2d 75 (1988) .................................. 9 

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

Royal Surplus Lines Insurance Company v. Samaria Baptist Church, 

840 SW2d 382 (Tex. 1992) ................................................................... 13 
111. 

State Farm Life Insurance Company v. Mosharaf, 

794 SW2d 578 (Tex.App.-Houston [1st Dist.] 1990) .......................... 12 

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

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

Titan Indemnification Company v. Old Southern Insurance Group, Inc., 

221 SW3d 703 (Tex.App.-San Antonio 2006) ..................................... 7 

Triad Contractors, Inc. v. Kelly, 

809 SW2d 683 (Tex.App.-Beaumont 1991) ........................................ 12 

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

IV. 
ORAL ARGUMENT REQUESTED 

NO: 01-13-01005-CV 

IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS 

B & SONS CONSTRUCTION LLC 

Appellant 

v. 

ROOD HOLDINGS, LLC 

Appellee 

BRIEF OF THE APPELLANT 

TO THE HONORABLE COURT OF APPEALS: 

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

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

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

22,2015. (Tab B) 

STATEMENT OF THE CASE 
Page 2 

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

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

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

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

judgment. (CR 26-70) 

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

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

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

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

& Sons. (CR 96-102) 

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

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

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

Defendants and making the December 10, 2014 Interlocutory Default Judgment 

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

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

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

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

ISSUES PRESENTED 
Page 3 

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

STATEMENT OF FACTS 

The Underlying Suit 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Service of Process on B & Sons 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

door of the property at 600 Shane Street. 

STANDARD OF REVIEW 

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

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

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

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

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

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

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

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

SUMMARY OF THE ARGUMENT AND ARGUMENT 

Motion for New Trial 

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

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

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

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

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

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

jurisprudence is toward liberally granting new trials following default. Titan 

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

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

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

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

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

No Service of Process Was Accomplished 

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

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

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

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

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

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

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

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

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

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

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

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

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

He was not. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B & Sons. (SCR 149) 

The Law 

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

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

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

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

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

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

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

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

Sons of the pending litigation against it. 

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

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

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

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

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

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

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

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

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

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

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

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

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

served the default judgment must be set aside) 
Page 11 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

related to a pending settlement). 
Page 12 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the default judgment becoming enforceable. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to the wrong address). 

CONCLUSION 

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

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

PRAYER 

WHEREFORE, PREMISES CONSIDERED, B & Sons respectfully moves 

the court of appeals to reverse the denial of its Motion for New Trial. 

Respectfully submitted, 

BY: / / ss/ / peter costea 

TBN 04855900 

Three Riverway, Suite 1800 

Houston, Texas 77056 

Tel. 713-337-4304 

Fax 713-659-5302 

ATTORNEY FOR APPELLANT 

B & SONS CONSTRUCTION, LLC 

CERTIFICATE OF SERVICE 

I certify that on August 29, 2015 a true and correct copy of the foregoing 

pleading was served electronically by the clerk of the court on counsel for all 

parties, Ms. Christina R. Johnson, Fidelity National Law Group, 5151 Beltline 

Road, Suite 410, Dallas, Texas 75254; and Mr. Tracey L. Cloutier, Matthews, 

Stein, Shiels, Knott, Eden & Davis LLP, 8131 LBJ Freeway, Suite 700, Dallas, 
Page 15 

Texas 75251. 

//ss// peter costea 

Peter Costea 

CERTIFICATE OF COMPLIANCE 

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(B) and Local Rule 

32.3, the undersigned certifies: 

1. This Brief complies with the type-volume limitations of Texas Rule of 

Appellate Procedure 9.4(i)(2)(B) because: it contains 2,962 words, excluding the 

parts of the Brief exempt by Texas Rule of Appellate procedure 9.4(i)(2)(B). 

2. The undersigned has provided an electronic version of the Brief to 

both the court and opposing counsel. If the Court requests, a copy of the word or 

line printout will be provided. 

3. The undersigned understands that a material misrepresentation in 

completing this certificate, or circumvention of the type-volume limits in Texas 

Rule of Appellate Procedure 9.4(i)(2)(B) may result in the Court striking the Brief 

and imposing sanctions against the person signing the Brief. 

/ /ss/ / peter costea 

Peter Costea 
Page 16 

APPENDIX 

1. Order Granting Default Judgment as to Third Party Defendant B & 

Sons Construction LLC (December 10,2014) (Tab A) 

2. Order Granting Rood Holdings, L.L.C.'s Motion to Dismiss Third 

Party Defendant VNF Inc. d/b/a VR Wood Inc. and Son Kim Nguyen Without 

Prejudice (January 22,2015) (Tab B) 

3. Order Denying Motion for New Trial of Third Party Defendant B & 

Sons Construction, LLC (March 11, 2015) (Tab C) 

4. The Notice of Appeal of Third Party Defendant B & Sons 

Construction LLC (April 18, 2015) (Tab D) 

5. Order Granting Third Party Plaintiff Rood Holdings, L.L.C.'s Motion 

for Substituted Service on Third-Party Defendant B & Sons Construction, LLC 

(September 24,2104) (Tab E) 

11117/20143.28.54 PM 

Chris Daniel· District Clerk 

Harris County 

Envelope No' 3203018 

By WILLIAMS, CHANDA D 

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. 

Defendan ts, 

VS. 

Vl\TF INC. d/bfa VR WOOD INC., 

SON KIM NGUYEN, and B & 

SONS CONSTRUCTION, LLC, 

Third Party Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

164Til JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

.. 

ORDER GRANTING DEFAULT JUDGMENT AS TO 

THIRD PARY DEFENDANT B & SONS CONSTRUCTION, LLC 

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

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

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

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

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

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

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

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

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

RECORDER'S D!I~~NOUM 

ThiS mstrumem Ii ~r qualily 

at the time of Imagmg 
answer. he has admitted the factual allegatwns In ThIrd Party Plamtlffs Odginal Third PaIiy 

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

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

("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, of the Map 

records of Harris 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 pUJ chased the Property, 1t dId not have 

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

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

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

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

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

fmds as follows 

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

interest m and to the Property, 

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

owner of the Property; 

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

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

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

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

does not encumber the Property, 

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

plopeliy recOId of Harns County, Texas, and 

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

attorney's fees in the followmg amounts' 

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

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

ConstructIOn, LLC to the COllrt of Appeals, 

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

Texas Supreme Court by the Defendant's and 

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

In whIch Rood Holdmgs, L L C prevaIls 

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

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

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

OtC 1 0 2014 

,2014. 

107 
TA 
1/16/20153:33:14 PM 

Chris Damel • District Clerk 

Harris County 

Envelope No' 3802905 

By' HENDERSON, MARCELLA L 

CAUSE NO. 2013-60986 

UNITED RENTALS (NORTH 

AMERICA), INC., 

Plaintiff, 

VS. 

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. 

VNF INC. d/bla VR WOOD INC., 

SON KIM NGUYEN, and B & 

SONS CONSTRUCTION, LLC, 

Third Party Defendants. 

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IN THE DISTRICT COURT 

164TH JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

ORDER GRANTING ROOD HOLDINGS, L.L.C'S MOTION TO DiSMISS THIRDPARTY DEFENDAl\TTS VNF INC. d/b/a VR WOOD INC. AND SON KIM NGUYEN 

WITHOUT PREJUDICE 

On thiS Day, _______ , 2015, came to be considered, Defendant! ThlrdParty Plamtlff Rood HoI dmgs , L L C 's MotIOn to DismISS TImd Party Defendants VNF Inc 

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

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

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

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

to Dlsmlss Without Prejudice 

THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that 

Order GRANTING Rood Holdlllgs' MotIon to Dismiss wahout PrejudIce 

RECORDER'S MEMORANDUM 

ThiS Inslrumenl IS of poor quality 

at the time of Imaging 

Page 1 of 2 

108 
Defendant! Third-Party Plamtlff Rood Holdmgs, L L C claIms brought agamst the Third-Party 

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

entItled Cause Number are hereby Dlsmlssed, without prejudice 

IT IS FURTHER ORDERED that the PartIal DIsmissal With Prejudice between 

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

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

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

2014 are now Fmal and Appealable Orders 

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

partIes who mcurred the same 

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

Order GRANTING Rood Holdmgs' MotLOn to Dismiss wah aut PrejudIce 

Page 2 of2 

109 

CAUSE 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., 

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IN THE DISTRICT COURT fl 

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. 

VNF INC. d/b/a VR WOOD INC., 

SON KIM NGUYEN, and B & 

SONS CONSTRUCTION, LLC, 

Third Party Defendants. 

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1l1t11£j 

164TH JUDICIAL DISTRJCT 

HARRIS COUNTY, TEXAS 

ORDER DENYING MOTION FOR NEW TRIAL OF THIRD PARTY DEFENDANT 

B & SONS CONSTRUCTION, LLC 

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

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

Construction, LLC is hereby DENIED. 

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

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

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

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

RECORDER'S MEMORANDUM 

This Instrumenlls of poor qualrty 1 26 

at the lime of Imaging 

9/15120141:43:28 PM 

Chris Daniel - District Clerk 

Harris County 

Envelope No: 2492376 

By: WILUAMS, CHANDA D 

CAUSE NO.: 2a13-60986 

UNITED RENTALS (NORTH 

AMERICA), INC., 

VS. 

VR WOOD, INC., HUaNG KIM 

NGUYEN, also known as HUONG 

K. NGtNEN, also known as 

HUONG NGUYEN, 

INDIVIDUALLY, and ROOD 

HOLDINGS, LL.C, 

Defenda.nts, 

VS. 

vNF INC. dlbla VR WOOD INC, 

SON KIM NGUYEN, and B & 

SONS CONSTRUCTION, LLC, 

Third Party Defendants. 

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IN THE DISTRICT COURT P 2J 

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164TH JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

ORDER GRANTING THIRD-PARTY PLAINTIFF ROOD HOLDINGS. L.LC. 's 

MOTION FOR SUBSTITUTED SERVICE ON 

THIRD-PARTY DEFENDANT B & SONS CONSTRUCTiON. LLC. 

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

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

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

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

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

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

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

Sons Constmctlon, proper nOtIce of the suit. 

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

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

LLC, by one of the following methods. 

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

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

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

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

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

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

Shane Street, HOllston, Texas 77037 

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

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

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

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Cause Nr.: 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 THE DISTRICT COURT 

Plaintiff 

s 

v. s 

S 

VR WOOD, INC, HUONG KIM S 

NGUYEN, also known as HUONG K. S 

NGUYEN, also known as HUaNG S 

NGUYEN, IJ\IDIVIDUALL Y, and ROOD S 

HOLDINGS, LLC, S 

Defendants S 

v. 

VNF INC d/bla VR WOOD INC, SON 

KIM NGUYEN, and B & SONS 

CONSTRUCTION, LLC, 

Third Party Defendants 

S 

S 

S 

S 

S 

S 

S 

HARRIS COUNTY, TEXAS 

164TH TIJDICIAL DISTRICT 

THE NOTICE OF APPEAL OF THIRD PARTY DEFENDANT 

B & SONS CONSTRUCTION. LLC 

TO THE HONORABLE STATE DISTRICT JUDGE: 

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

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

on January 22,2015. 

Respectfully submitted, 

BY: /Iss// peter costea 

TBN 04855900 

Three Riverway, Suite 1800 

Houston, Texas 77056 

Tel. 713-337-4304 

Fax 713-659-5302 

ATTORNEY FOR TH1RD PARTY DEFENTIANT 

B & SONS CONSTRUCTION, LLC 

127 
CERTIFICATE OF SERVICE 

T certify that on April 18, 2015 a true and correct copy of the foregoing pleading was 

served electronically by the clerk of the court on counsel for all parties, Ms. Ashley A. Smith, 

5151 Belt Line Road, Suite 410, Dallas, Texas 75254; Ms. l\1isti L Beanland, Matthews, Stein, 

Shiels, Pearce, Knott, Eden & Davis, LLP" 8131 LBJ Freeway, Suite 700, Dallas, Texas 75251; 

and Ms, Christina R, Johnson, Fidelity National Law Group, 5151 Beltline Road, Suite 410, 

Dallas, Texas 75254. 

//ss// peter costea 

Peter Costea 

128