In The

Fourteenth Court of Appeals

_____________________

NO. 14-15-00747-CV

_____________________

W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,

Appellant

V.

GREGORY PHAM, JOHN MA AND RAYMOND DAO,

Appellees. 

From Cause No. 201521720; 151st Judicial District Court

Harris County, Texas

BRIEF OF APPELLANT W. GARRY WALDROP DDS, INC.

D/B/A LIFETIME DENTAL CARE

 ZIMMERMAN, AXELRAD,

 MEYER, STERN & WISE, P.C.

 Jennifer S. Wilson

 State Bar No. 21697500

3040 Post Oak Blvd., Suite 1300

 Houston, Texas 77056

 713.552.1234

 713.963.0859 (FAX)

 E-mail: jwilson@zimmerlaw.com

ATTORNEYS FOR W. GARRY 

WALDROP DDS, INC. D/B/A 

LIFETIME DENTAL CARE

ACCEPTED

14-15-00747-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

12/30/2015 12:07:20 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/30/2015 12:07:20 PM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

In order that members of this Court may determine disqualification and 

recusal under Rule 38.1(a) of the Texas Rules of Appellate Procedure, Real Parties 

In Interest certify that the following is a complete list of parties, attorneys and 

other parties who may have an interest in the outcome of this proceeding:

Defendant/Appellant: W. Garry Waldrop DDS, Inc. d/b/a Lifetime 

Dental Care

c/o Jennifer S. Wilson

Zimmerman, Axelrad, Meyer, Stern & Wise, P.C.

3040 Post Oak Blvd., 1300

Houston, Texas 77056

713.552.1234

713.963.0859 (FAX)

Plaintiffs/Appellees: Gregory Pham, John Ma and Raymond Dao

Ned Gill, III

Gill, Revack, Samaan & Muller, LLP

6575 West Loop South, Suite600

Bellaire, Texas 77401

713.271.8282

713.271.2112 (FAX)

Presiding Judge: Honorable Mike Engelhart

151st Judicial District Court of Harris County

201 Caroline, 11th Floor

Houston, Texas 77002

713.368.6222

 /s/ Jennifer S. Wilson

Jennifer S. Wilson
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL........................................................ ii

INDEX OF AUTHORITIES...................................................................................v

I. ISSUES PRESENTED.......................................................................................1

Issue No. 1: Lifetime has the right to a restricted appeal. ...............................1

Issue No. 2: The Trial Court erred in entering judgment against Lifetime 

because the record shows that that there was not strict compliance with the 

Texas Rules of Civil Procedure governing service of citation. .........................1

Issue No. 3: The Trial Court erred in entering judgment against Lifetime 

because the record shows that the evidence was legally or alternatively 

factually insufficient to support an award of damages. ....................................2

Issue No. 4: The Trial Court erred in entering judgment against Lifetime 

because the record shows that the evidence was legally or alternatively 

factually insufficient to support an award of attorneys’ fees. ..........................2

II. STATEMENT OF THE CASE ........................................................................2

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

IV. SUMMARY OF THE ARGUMENT...............................................................4

V. STANDARD OF REVIEW...............................................................................4

VI. ARGUMENT AND AUTHORITIES ..............................................................4

Issue No. 1 Restated: Lifetime has the right to a restricted appeal.............4

Issue No. 2 Restated: The Trial Court erred in entering judgment against 

Lifetime because the record shows that that there was not strict compliance 

with the Texas Rules of Civil Procedure governing service of citation. ..........6

Issue No. 3 Restated: The Trial Court erred in entering judgment against 

Lifetime because the record shows that the evidence was legally or 

alternatively factually insufficient to support an award of damages. ...........10

Issue No. 4 Restated: The Trial Court erred in entering judgment against 

Lifetime because the record shows that the evidence was legally or 

alternatively factually insufficient to support an award of attorneys’ fees. .15
iv

VII. CONCLUSION ........................................................................................16

VIII. PRAYER........................................................................................................16

APPENDIX.............................................................................................................19
v

INDEX OF AUTHORITIES

CASES

Aetna Ins. Co. v. Klein, 325 S.W.2d 376 (Tex. 1959).............................................12

Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004)..............................5, 6

B&W Sup. v. Beckman, 305 S.W.3d 10 (Tex. App. – Houston [1st Dist.]

2009, pet. denied)..................................................................................................11

Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591 (Tex. App. –

Dallas 1989, no writ) ............................................................................................10

Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex. App. –

Houston [1st Dist.] 1999, no pet.)............................................................................9

Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex. App. – San 

Antonio 2002, pet. denied) .....................................................................................7

Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958 (Tex. App. –

Texarkana 1975, no writ)........................................................................................7

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) .............................................................11

Cates v. Pon, 663 S.W.2d 99 (Tex. Civ. App. – Houston [14th Dist.] 1983,

writ ref’d n.r.e.).......................................................................................................6

Chesney v. Buddrus, 1988 WL 34838, at *1 (Tex. App. – Houston [1st Dist.]

April 14, 1988, no writ)(not designated for publication) .......................................9

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)............................................10

Dallas Railway and Terminal Co. v. Bankston, 51 S.W.2d 304 (Tex. 1932) .........12

Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (Tex. App. –

Houston [14th Dist. 2014, no pet.).........................................................................16

General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d

942 (Tex. 1991).......................................................................................................5

Hercules Concrete Pumping Serv. v. Bencon Mgmt. & Gen. Contracting Corp.,

62 S.W.3d 308 (Tex. App. – Houston [1st Dist.] 2001, pet. denied)......................7

Industrial Models, Inc. v. SNF, Inc., 2014 WL 3696104, at *4 (Tex. App. –

Fort Worth, July 24, 2014, no pet.).........................................................................9

Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650

(Tex. 2009)............................................................................................................15

Jackson v. Gutierrez, 77 S.W.3d 898 (Tex. App. – Houston [14th Dist.] 2002,

no pet.) ..................................................................................................................14

Lytle v. Cunningham, 261 S.W.3d 837 (Tex. App. – Dallas 2008, no pet.)..............8
vi

Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W. 3d 808 (Tex. App. –

Dallas 2013, no pet.).............................................................................................11

Mays v. Pierce, 203 S.W.3d 564 (Tex. App. – Houston [14th Dist.] 2006,

pet. denied)............................................................................................................14

Nelson v. Najm, 127 S.W.3d 170 (Tex. App. – Houston [1st Dist.] 2003,

pet. denied)............................................................................................................11

Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997)

(per curiam).............................................................................................................6

North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714 (Tex. App. –

Austin 2003, pet. denied)........................................................................................7

Ortiz v. Avante Ville at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App. –

Corpus Christi 1996, writ denied) ..........................................................................8

Pace Corp. v. Jackson, 284 S.W.2d 340 (Tex. 1955)..............................................13

Polansky v. Berenji, 393 S.W.3d 362 (Tex. App. – Austin 2012, no pet.)..............15

Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994)(per curiam) ...............6

Prudential Ins. Co. of America, Inc. v. Black, 572 S.W.2d 379 (Tex. Civ. App.—

Houston [14th Dist.] 1978, no writ)......................................................................12

Qadurra v. Indo-European Foods, Inc. 141 S.W.3d 882 (Tex. App. –

Dallas 2004, pet. denied) ......................................................................................14

Ramsey v. Jones Enterprises., 810 S.W.2d 902 (Tex. App. – Beaumont 1991,

writ denied)...........................................................................................................12

Santex Builders, LLC v. Guefen Constr., LLC, 2009 WL 4810286, at *4

(Tex. App. – Houston [14th Dist.], December 15, 2009, no pet.)........................10

Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App. – Fort Worth 1973,

no writ)....................................................................................................................9

Union Pacific R. Corp. v. Legg, 49 S.W.3d 72 (Tex. App. – Austin 2001,

no pet.) .................................................................................................................10

Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411 (Tex. Civ. App. –

Fort Worth 1962, no writ).......................................................................................9

Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884

(Tex. 1985)..........................................................................................................6, 8

Verlander Enter, Inc. v. Graham, 932 S.W.2d 259 (Tex. App. – El Paso 1996,

no writ)....................................................................................................................9

Wachovia Bank v. Gilliam, 215 S.W.3d 848 (Tex. 2007) .........................................6
vii

Whitaker v. Rose, 218 S.W.3d 216 (Tex. App. – Houston [14th Dist.] 2007,

no pet.) ..................................................................................................................14

White v. Bath, 825 S.W.2d 227 (Tex. App. – Houston [14th Dist.] 1992,

writ denied)...........................................................................................................12

Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990).........................................................10

RULES

Tex. R. App. P. 26.1(c) and 30 ..................................................................................5

Tex. R. App. P. 30......................................................................................................5

TEX. R. APP. P. 9.4(i)................................................................................................18

Tex. R. Evid. 1002 ...................................................................................................12

STATUTES

Tex. Civ. Pr. & Rem. Code § 38.001 (1) and (8).....................................................15

Tex. Civ. Pr. & Rem. Code § 38.001 et seq.............................................................15

Tex. Civ. Pr. & Rem. Code § 38.002(2)..................................................................16
viii

ABBREVIATIONS AND RECORD REFERENCES

“C.R.” followed by a number refers to the Clerk’s Record filed in this 

case.

“Supp. C.R.” refers to a document which has been requested but not yet 

signed by the Court, and which may be contained within a 

Supplemental Clerk’s Record.

“R.R.” followed by a page number refers to that certain page of the 

Reporter’s Record taken on June 29, 2015.
1

In The

Fourteenth Court of Appeals

_____________________

NO. 14-15-00747-CV

_____________________

W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME DENTAL CARE,

Appellant

V.

GREGORY PHAM, JOHN MA AND RAYMOND DAO,

Appellees.

From Cause No. 201521720; 151st Judicial District Court

Harris County, Texas

BRIEF OF APPELLANT W. GARRY WALDROP DDS, INC.

D/B/A LIFETIME DENTAL CARE

TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

COMES NOW W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME 

DENTAL CARE (“Lifetime”), Appellant herein, and files its Brief.

I. ISSUES PRESENTED

Issue No. 1: Lifetime has the right to a restricted appeal.

Issue No. 2: The Trial Court erred in entering judgment against Lifetime 

because the record shows that that there was not strict compliance with the 

Texas Rules of Civil Procedure governing service of citation.
2

Issue No. 3: The Trial Court erred in entering judgment against Lifetime 

because the record shows that the evidence was legally or alternatively 

factually insufficient to support an award of damages.

Issue No. 4: The Trial Court erred in entering judgment against Lifetime 

because the record shows that the evidence was legally or alternatively 

factually insufficient to support an award of attorneys’ fees.

II. STATEMENT OF THE CASE

The underlying action was brought by Gregory Pham, John Ma and 

Raymond Mao (“Plaintiffs”), the Appellees herein, against W. Garry Waldrop, 

DDS, Inc. d/b/a Lifetime Dental Care (“Lifetime”), the Appellant. The suit alleged 

fraud and breach of contract arising from an employment relationship between the 

Plaintiffs and Lifetime. (C.R. at 3-8).

No answer was filed by Lifetime and on July 1, 2015, after conducting an 

evidentiary hearing, the trial court granted default judgment against Lifetime in the 

aggregate amount of $111,100.00, plus pre-judgment and post-judgment interest

and attorneys’ fees. (C.R. at 19-20).

Lifetime did not participate in any proceeding before the trial court prior to 

the entry of the default judgment on July 1, 2015. Further, Lifetime did not file 

any post-judgment motions or request for findings of fact and conclusions of law. 

(See docket omissions (Supp. C.R. at 8-10).
3

On September 1, 2015, Lifetime timely filed its notice of restricted appeal

with the district clerk. (C.R. at 23-25).

III. STATEMENT OF FACTS

Upon filing of the underlying action by Plaintiffs, Citation was issued to 

Lifetime requesting service on Lifetime at Lifetime’s principal office at 970 South 

Fry Road, Kay, Texas 77450. (C.R. at 9). The citation was issued on April 15, 

2015 and was received by Plaintiffs’ private process server on April 17, 2015. 

(C.R. at 9). The return of service indicate that service was accomplished by 

delivery to “W. Garry Waldrop, DDS, d/b/a Lifetime Dental Care, defendant, in 

person,” on April 20, 2015. (C.R. at 9).

On May 19, 2015, Plaintiffs filed their Motion for Default Judgment (C.R. at 

10-16) and on June 29, 2015, the trial court conducted an evidentiary hearing. 

Plaintiffs each testified that they had entered into a written agreement with 

Lifetime, that they were to receive twenty-five percent (25%) of production and 

that they had not been paid. (R.R. at 7, 8, 10, 12). Appellee Pham testified that his 

damages were $58,343.00. (R.R. at 8). Appellee Ma testified that his damages 

were $19,462.00. (R.R. at 10). Appellee Dao testified that his damages were 

$26,759.00. (R.R. at 12, 13).

Plaintiffs’ attorney, Ned Gill, III, testified that the attorneys’ fees incurred 

by Appellee Pham were $1,600.00; the attorneys’ fees incurred by Appellee Ma 
4

were $1,600.00 and the attorneys’ fees incurred by Appellee Dao were $1,600.00.

(R.R. at 14).

IV. SUMMARY OF THE ARGUMENT

The judgment entered by the trial court was invalid because the record 

shows that there was not strict compliance with the Texas Rules of Civil Procedure 

governing service of citation. In addition, the record further indicates that 

Appellees’ claim for breach of contract was factually or legally insufficient to 

support an award of damages in that the trial court incorrectly considered hearsay 

evidence of written agreements upon which Appellees’ claims are based. The 

record further shows that Appellees’ damages were at a minimum based upon 

speculation and were not properly supported by evidence appropriately segregating 

the categories of damages. Further, the pleadings and evidence were either legally 

or factually insufficient to support an award of attorneys’ fees. 

V. STANDARD OF REVIEW

This is a restricted appeal and, as such, the review is based upon error 

appearing on the face of the record. No presumption exists in favor of the actions 

in the trial court.

VI. ARGUMENT AND AUTHORITIES

Issue No. 1 Restated: Lifetime has the right to a restricted appeal.
5

A restricted appeal is a procedural device available to a party who did not 

participate, either in person or through counsel, in a proceeding that resulted in a 

judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a 

default judgment. Id.; General Elec. Co. v. Falcon Ridge Apartments, Joint 

Venture, 811 S.W.2d 942, 943 (Tex. 1991). A party filing a restricted appeal must 

demonstrate the following elements: (1) appellant appealed within six months of 

the date the judgment was rendered; (2) the appellant was a party to the suit; (3) 

the appellant did not participate in the hearing that resulted in the judgment 

complained of; (4) the appellant did not timely file a post-judgment motion, 

request for findings of fact and conclusions of law or a notice of appeal by the time 

permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure; and (5) error 

appears on the face of the record. See, Tex. R. App. P. 26.1(c) and 30; Alexander 

v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

In this case, Lifetime appealed within six months after the July 1, 2015 

default judgment was entered by filing its Notice of Restricted Appeal on 

September 2, 2015. Lifetime was a party to the underlying suit and did not 

participate in the default judgment hearing that resulted in judgment being entered 

against it. (R.R. 2, 4). Lifetime did not file any post-judgment motions or request 

findings of fact or conclusions of law. (Supp. C.R. at 8-10). Error appears on the 
6

face of the record as will be more fully briefed and discussed below. There is no 

dispute that Lifetime meets all requirements for a restricted appeal.

Issue No. 2 Restated: The Trial Court erred in entering judgment against 

Lifetime because the record shows that that there was not strict compliance 

with the Texas Rules of Civil Procedure governing service of citation.

If proper service in compliance with the Texas Rules of Civil Procedure is 

not affirmatively shown, there is error on the face of the record. Primate Constr., 

Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994)(per curiam). For purposes of the 

restricted appeal, the face of the record consists of all of the papers on file, 

including the reporter’s record, at the time that judgment is entered. No extrinsic 

evidence may be considered. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 

269, 270 (Tex. 1997)(per curiam); ); Alexander v. Lynda’s Boutique, 134 S.W.3d 

at 848-49.

When a default judgment is challenged by restricted appeal, there are no 

presumptions in favor of valid service. Wachovia Bank v. Gilliam, 215 S.W.3d 

848 (Tex. 2007); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 

S.W.2d 884, 885 (Tex. 1985); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. Civ. App. –

Houston [14th Dist.] 1983, writ ref’d n.r.e.) Service of process was deficient in this 

case and the error is apparent from the face of the record because the return of 

citation reflects delivery on a person or entity other than W. Garry Waldrop, its 

registered agent as stated in Plaintiffs’ Original Petition. Instead, the return shows 
7

service on “W. Garry Waldrop, DDS (d/b/a Lifetime Dental Care), defendant, in 

person,” which leads to confusion over whether service was attempted on the 

corporate entity, which is doing business as Lifetime Dental Care, or W. Garry 

Waldrop, the individual, who is not doing business as Lifetime Dental Care. In 

either case, the return does not affirmatively show that the person served was the 

defendant or was an individual authorized to accept service on behalf of the 

corporate defendant. In addition, there is a fatal discrepancy between the corporate 

defendant to whom the citation was issued and the name of the purported 

“defendant” identified in the return. The return, therefore, is invalid. Benefit 

Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 861 (Tex. App. – San Antonio 

2002, pet. denied)(a return that does not identify the defendant corporation as the 

entity served is invalid); Hercules Concrete Pumping Serv. v. Bencon Mgmt. & 

Gen. Contracting Corp., 62 S.W.3d 308, 310-11 (Tex. App. – Houston [1st Dist.]

2001, pet. denied) (the return did not give the complete and correct name of the 

defendant); North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 720 

(Tex. App. – Austin 2003, pet. denied) (return omitted “Life” from defendant’s 

name); Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958, 959 (Tex. 

App. – Texarkana 1975, no writ) (return did not identify the defendant as a 

corporation as it was identified in the petition and citation).
8

Moreover, where the citation states one name to receive service but the 

record reflects that the citation was served on a person or entity with a different 

name, the service of process if fatally defective. In this case, citation was issued to 

W. Garry Waldrop DDS Inc. (d/b/a Lifetime Dental Care) and was served on W. 

Garry Waldrop DDS, with no indication of corporate existence. Uvalde Country 

Club v. Martin Linen Supply Co., 690 S.W.2d at 885 (delivering citation to “Henry 

Bunting” ineffective when petition alleges that registered agent is “Henry Bunting, 

Jr.”); Lytle v. Cunningham, 261 S.W.3d 837, 840-41 (Tex. App. – Dallas 2008, no 

pet.) (holding service invalid when citation identifies “Mr. Chris Lytle” but return 

indicates delivery on “Christopher Lytle”). While the failure to include the 

corporate designation “Inc.” has been held not to invalidate service,

1 the return in 

this cannot be fixed merely by inserting the corporate designation after the name of 

the party served, W. Garry Waldrop DDS, defendant, because there is no further 

indication that process was served on an individual with the capacity to accept the 

petition and citation on behalf of the corporation. This omission distinguishes the 

instant case from the factual circumstances in Ortiz v. Avante Ville at Corpus 

Christi, Inc., 926 S.W.2d 608 (Tex. App. – Corpus Christi 1996, writ denied),

where the citation and return of service specifically stated that service was to be 

effected upon the corporate defendant by service on “Pat Wiggins Operations 

 1

 See Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 612 (Tex. App. – Corpus 

Christi 1996, writ denied).
9

Specialist.” No such information is contained in the return of service in this case. 

The Court is left with the puzzle of who was actually served, the corporation – and, 

if so, what individual with authority to accept service was served - or the individual

– who is not a party? Because the record does not affirmatively demonstrate that 

Plaintiffs’ Original Petition and citation was served on an individual with authority 

to accept them on behalf of the corporate defendant, Plaintiffs’ attempted service is 

invalid and of no effect. Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789, 

791 (Tex. App. – Houston [1st Dist.] 1999, no pet.); Verlander Enter, Inc. v. 

Graham, 932 S.W.2d 259, 261 (Tex. App. – El Paso 1996, no writ). 

Further, there is no statement in the record that establishes compliance with 

Rule 108, which requires a sworn statement from the process server that he or she 

is disinterested in the suit. This omission is fatally defective and mandates reversal 

of the default judgment. Chesney v. Buddrus, 1988 WL 34838, at *1 (Tex. App. –

Houston [1st Dist.] April 14, 1988, no writ) (not designated for publication); 

Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411, 412-13 (Tex. Civ. App. – Fort 

Worth 1962, no writ); Scucchi v. Woodruff, 503 S.W.2d 356, 357-59 (Tex. Civ. 

App. – Fort Worth 1973, no writ); Industrial Models, Inc. v. SNF, Inc., 2014 WL 

3696104, at *4 (Tex. App. – Fort Worth, July 24, 2014, no pet.).

Strict compliance is determined by whether the exact procedural 

requirements have been met, not whether the intended party received notice of the 
10

lawsuit. Union Pacific R. Corp. v. Legg, 49 S.W.3d 72, 77 (Tex. App. – Austin 

2001, no pet.). Even actual notice without proper service is not sufficient to 

convey jurisdiction on the trial court to render default judgment against Lifetime. 

Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990); Santex Builders, LLC v. 

Guefen Constr., LLC, 2009 WL 4810286, at *4 (Tex. App. – Houston [14th Dist.], 

December 15, 2009, no pet.). Because Plaintiffs did not strictly comply with the 

rules relating to the issuance of citation, the manner and mode of service and the 

return of process, the default judgment against Lifetime cannot be sustained. 

Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591, 592 (Tex. App. –

Dallas 1989, no writ). 

Issue No. 3 Restated: The Trial Court erred in entering judgment against 

Lifetime because the record shows that the evidence was legally or

alternatively factually insufficient to support an award of damages.

In a legal sufficiency challenge, the appellate court must sustain the 

challenge if the record shows one of the following (1) a complete absence of a vital 

fact; (2) rules of law or evidence bar the court from giving weight to the only 

evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact 

is no more than a scintilla; or (4) the evidence conclusively establishes the opposite 

of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In a 

restricted appeal, the sufficiency of the evidence may be challenged on the face of 

the record. In reviewing a factual insufficiency of the record, the appellate court 
11

conducts a neutral review of all of the evidence. Cain v. Bain, 709 S.W.2d 175, 

176 (Tex. 1986). An appellate court reverses for factual insufficiency only if the 

ruling is so against the great weight and preponderance of the evidence as to be 

manifestly erroneous or unjust. Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. App. 

– Houston [1st Dist.] 2003, pet. denied).

In order to recover on an action for breach of contract, the plaintiff must 

provide competent evidence of the following:

a. There is a valid, enforceable contract.

b. The plaintiff is a proper party to sue for breach of contract.

c. The plaintiff performed, tendered performance of, or was excused 

from performing its contractual obligations.

d. The defendant breached the contract.

e. The defendant’s breach caused the plaintiff injury.

B&W Sup. v. Beckman, 305 S.W.3d 10, 16 (Tex. App. – Houston [1st Dist.] 2009, 

pet. denied); Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W. 3d 808, 813-14 

(Tex. App. – Dallas 2013, no pet.). Each of the plaintiffs in this case testified at 

the default judgment hearing that he had entered into a written contract with 

Lifetime. (R.R. at 7, 10, 12). Yet no copy of any written agreement appears in the 

record, either attached to Plaintiffs’ Original Petition as an exhibit or introduced 
12

into evidence at the hearing on Plaintiffs’ Motion for Default Judgment. (C.R. at 

3-8),(R.R. at 1-37).

Where, as here, the testimony offered concerns the contents of a writing, the 

best evidence rule comes into play. Tex. R. Evid. 1002. Plaintiffs each testified to 

terms of payment contained in the written agreement each had with Lifetime, yet 

no written contract appears in the record. The best evidence of the terms of 

compensation and payment contained in the written agreements is the document 

itself and the trial court erred in admitting hearsay evidence of the Plaintiffs 

offered to prove the contents of those agreements. Aetna Ins. Co. v. Klein, 325 

S.W.2d 376, 379-80 (Tex. 1959); White v. Bath, 825 S.W.2d 227, 231 (Tex. App. –

Houston [14th Dist.] 1992, writ denied); Prudential Ins. Co. of America, Inc. v. 

Black, 572 S.W.2d 379, 380 (Tex. Civ. App.—Houston [14th Dist.] 1978, no writ);

Ramsey v. Jones Enterprises., 810 S.W.2d 902, 905 (Tex. App. – Beaumont 1991, 

writ denied). Moreover, there is a general rule that incompetent evidence, even 

when admitted without objection, has no probative force and will not support a 

judgment. Prudential Ins. Co. of America, Inc., 572 S.W. 2d at 379, citing with 

approval Dallas Railway and Terminal Co. v. Bankston, 51 S.W.2d 304, 309 (Tex. 

1932).
13

The absence of competent proof of a critical element of Plaintiffs’ breach of 

contract claim – the existence of a valid, enforceable contract - appears on the

record and merits reversal of the trial court’s judgment.

Lifetime further contends that the evidence was either legally or factually 

insufficient evidence to support the award of damages to the Plaintiffs. Plaintiffs’ 

Original Petition clearly states that at the time it was filed Plaintiffs were uncertain 

whether they had been paid all compensation to which they allege they were 

entitled and further states that damages will be based, at least in part, on 

“information known or expected to be known during the course of the case.” (C.R. 

at 4, ¶6; 6, ¶12). The reporter’s record certainly does not indicate whether the 

Plaintiffs, testifying individually as to their alleged damages, were stating an 

amount that was known as of the date of testimony or whether their testimony on 

this issue was rank speculation. (R.R. at 7, 8,10, 12, 13).

While Plaintiffs are not foreclosed from a remedy for the lack of the ability 

to provide mathematical certainty as to the value of their damages, they are

required to show that certainty of the fact of damages. Pace Corp. v. Jackson, 284

S.W.2d 340, 348 (Tex. 1955). There is no such evidence, even minimal, in the 

record.

Moreover, there was no testimony offered by the Plaintiffs that they had 

performed or tendered performance of any services pursuant to their written 
14

contracts. The only evidence on the record that might be construed as some 

support for this element is the allegation in Plaintiffs’ Original Petition that 

“Plaintiffs provided the services as agreed.” (C.R. at 5) Such a conclusory 

statement is hardly proof of performance.

Plaintiffs have pleaded for damages consisting of (1) loss of income and (2) 

financial loss. (C.R. at 6, ¶13). The measure of damages for breach of contract is 

normally compensation for a party’s expectation interest in the contract, or “benefit 

of the bargain” damages. Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App. –

Houston [14th Dist.] 2006, pet. denied); Qadurra v. Indo-European Foods, Inc. 141 

S.W.3d 882, 888-89 (Tex. App. – Dallas 2004, pet. denied). However, “loss of 

income” and “financial loss,” although arguably including benefit of the bargain 

damages, may also include loss of production, loss of market value, loss of 

investment and loss of business reputation. There is no attempt by the Plaintiffs in 

their testimony to segregate each damage element and the trial court did not 

specify the damage elements it was awarding. There is, therefore, no way for this 

Court to determine if the trial court has awarded damages for which no evidence 

was offered or damages that are not allowed by law. Therefore, this Court must 

reverse the damage award and remand for a new trial. See Whitaker v. Rose, 218 

S.W.3d 216, 224 (Tex. App. – Houston [14th Dist.] 2007, no pet.); Jackson v. 

Gutierrez, 77 S.W.3d 898, 903-4 (Tex. App. – Houston [14th Dist.] 2002, no pet.).
15

Issue No. 4 Restated: The Trial Court erred in entering judgment against 

Lifetime because the record shows that the evidence was legally or 

alternatively factually insufficient to support an award of attorneys’ fees.

Texas law does not allow recovery of attorneys’ fees unless authorized by 

statute or contract. Polansky v. Berenji, 393 S.W.3d 362, 368 (Tex. App. – Austin 

2012, no pet.). In order to recover attorneys’ fees, a party must plead with 

specificity the basis for their recovery. Absent express language in a contract or a 

codified right in a statue, the trial court has no inherent authority to award 

attorneys’ fees. Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 

S.W.3d 650 (Tex. 2009). 

Plaintiffs’ Original Petition does not designate a basis for the award of 

attorneys’ fees, whether they are being sought pursuant to a provision in the absent 

written contracts between Plaintiffs and Lifetime or whether they are being sought 

pursuant to Tex. Civ. Pr. & Rem. Code § 38.001 et seq. The pleadings, therefore, 

do not provide a legal basis for an award of attorneys’ fees.

Nor have Plaintiffs established a right to attorneys’ fees pursuant to statute. 

Although Chapter 38 of the Texas Civil Practice and Remedies Code allows for the 

recovery of attorneys’ fees for (1) rendered services, or (2) if the claim is for an 

oral or written contract, there was no proof offered by the Plaintiffs that they had 

rendered or tendered performance of services. Tex. Civ. Pr. & Rem. Code § 38.001 

(1) and (8). Further, the factual and legal insufficiency of the evidence regarding 
16

Plaintiffs’ claims for damages render their claims for attorneys’ fees - which are 

necessarily dependent upon a sustainable award of damages - erroneous and 

merits reversal of the trial court judgment. 

Chapter 38 of the Texas Civil Practice and Remedies Code specifies the 

bases for recovering attorneys’ fees in the absence of an express contractual 

provision or other statutory authority. Presentment of a claim to the opposing 

party is required. Tex. Civ. Pr. & Rem. Code § 38.002(2). The record does not 

reflect that presentment of Plaintiffs’ claims to Lifetime was made. Genender v. 

USA Store Fixtures, LLC, 451 S.W.3d 916, 924-28 (Tex. App. – Houston [14th

Dist. 2014, no pet.).

VII. CONCLUSION

For the reasons stated herein, Lifetime respectfully requests that the 

Court reverse the trial court’s judgment and remand this matter to the trial court for 

a new trial, and for such other and further relief at law and in equity to which it is 

entitled. Further, the Appellant prays that all cost incurred related to this appeal be 

granted against the Appellees.

VIII. PRAYER

WHEREFORE, PREMISES CONSIDERED, W. Garry Waldrop, DDS, Inc. 

d/b/a Lifetime Dental Care, requests that this Court reverse the trial court judgment 
17

and remand the case to the trial court, and for such other relief to which Lifetime 

may be entitled.

Respectfully submitted,

ZIMMERMAN, AXELRAD,

MEYER, STERN & WISE, P.C.

By: /s/ Jennifer S. Wilson

Jennifer S. Wilson

State Bar No. 21697500

3040 Post Oak Blvd., Suite 1300

Houston, Texas 77056

713.212.2674 (Direct)

713.552.1234 (Main)

713.212.2790 (Direct Facsimile)

jwilson@zimmerlaw.com

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of January, 2016, a true and correct 

copy of Appellant’s Brief was served by eFile Texas Website upon the following

counsel of record:

Mr. Ned Gill, III

Gill, Revack, Samaan & Muller, LLP

6575 West Loop South, Suite 600

Bellaire, Texas 77401

Attorneys for Appellees

 /s/ Jennifer S. Wilson

Jennifer S. Wilson
18

CERTIFICATE OF COMPLIANCE

The undersigned certifies that Appellant’s Brief complies with the type and 

volume requirements pursuant to Rule 9 of the Texas Rules of Appellate 

Procedure:

• This Brief contains 3,360 words, excluding the portion of the Brief

exempted under TEX. R. APP. P. 9.4(i);

• This Response has been prepared using Microsoft Word 2010 wordprocessing software. The typeface is a proportionally spaced typeface using 

Times New Roman 14 point font (except for footnotes which use a 12 point 

font) 

 /s/ Jennifer S. Wilson 

Jennifer S. Wilson
19

In The

Fourteenth Court of Appeals

_____________________

NO. 14-15-00747-CV

_____________________

W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,

Appellant

V.

GREGORY PHAM, JOHN MA AND RAYMOND DAO,

Appellees.

From Cause No. 201521720; 151st Judicial District Court

Harris County, Texas

APPENDIX

1. Final Judgment C.R. 19-20

2. Return of Citation C.R. 9

3. Plaintiffs’ Original Petition C.R. 3-8

4. Plaintiffs’ Motion for Default Judgment C.R. 10-16

5. Relevant Excerpts from Hearing on Plaintiffs’

Motion for Default Judgment, June 29, 2015 R.R. 1-24

6. Trial Court Docket Sheet Supp. C.R. 8-10

7. Notice of Appeal C.R. 23-25
20

8. Tex. R. App. Proc. 30

9. Tex. R. App. Proc. 26.1(c)
19 

6/29/201511:23LM AM

Chris Daniel - District Clerk Harris County

Envelope No. 5858153

By: VERONICA GONZALEZ

Fifed: 6/29/2015 11:23U4 AM

Pgs-2 NO. 2015-21720

DC GREGORY PHAM, JOHN MA

And RAYMOND DAO

Plaintiffs,

§ IN THE DISTRICT COURT 5

§

§

V. § 151ST JUDICIAL DISTRICT

§

W, GARRY WALDROP, ODS, INC.

d/fo/a LIFETIME DENTAL CARE

Defendant

§

§

§ HARRIS COUNTY, TEXAS

At the hearing on this cause, Plaintiffs appeared through their attorney of record.

Defendant although duly cited to appear and answer herein, has failed to file an answer

within the time allowed by law

The Court has considered the pleadings and records on file in this cause and the.

evidence and is of the opinion that judgment should be rendered for Plaintiffs.

It is accordingly ADJUDGED that GREGORY PHAM, Plaintiff, recover from W.

GARRY WALDROP, DOS, INC., d/b/a LIFETIME DENTAL CARE, Defendant, an

independent JUDGMENT for1 $ 58.343...... as the principal amount due to GREGORY PHAM;

2 £ 2,917_as interest on lire principal amount to the date of judgment;

3. i 1,600 as reasonable and necessary attorney’s fees;

4, all taxable costs of court;

5. post-judgment interest at the rate of five percent per year on the total

judgment from the date of judgment until paid.

It is accordingly ADJUDGED that JOHN MA, Plaintiff, recover from W. GARRY

WALDROP, DOS, INC. d/b/a LIFETIME DENTAL CARE, Defendant, an independent

JUDGMENT for1. S 19,462 as the principal amount due to JOHN MA,

2. $ 1,462 as interest on the principal amount to the date of judgment;

Page t of 2
20 

3. as attorney's fees;

A, a![ taxable costs of court;

post-judgment interest at the rate of five percent per year on the total

judgment from the date of judgment until paid,

5

it is accordingly ADJUDGED that RAYMOND DAO, Plaintiff, recover from W.

GARRY WALDROP, DDS, INC.. d/b/a LIFETIME DENTAL CARE, Defendant, an

independent JUDGMENT for1. $ 26,755....... as the principal amount due to RAYMOND DAO;

2. $ 2,157 as interest on the principal amount to the date of judgment;

3, $ 1,600..... as attorney's fees;

4. all taxable costs of court;

post-judgment interest at the rate of five percent per year on the total

judgment from the date of judgment until paid,

it is ORDERED that each of Plaintiffs' Judgments are independent of the other

and each shall have an independent right to have all writs of execution and other

process necessary to enforce their respective judgments,

5,

This Final Judgment finally disposes of all parties and all claims and is

appealable,

SIGNED on

Signed:

7/1/2015 7

JUDGE PRESIDING

Page 2 of 2
9 

ul CAUSE NO. 20152:1720

*

sC-J

i

’v. RECEIPT NO, 0.00 CIV

TR # '73121915

********** S PLAINTIFF: PHAM, GREGORY

J vs „

in The

Judicial District Court

of Harris County, Texas

151ST DISTRICT COURT

Houston. TX _

151st

t

3 DEFENDANT: W GARRY WALDROP DDE INC (D/B/A LIFETIME DENTAL CAR

E

CITATION

jjj THE STATE OF TEXAS

B County of Harris

2 f

TO: W GARRY WALDROP DDS INC (D/B/A LIFETIME DENTAL CARE) Time:

570 SOUTH FRY ROAD Hflrrla 9122 KATY TX 77450 £0urity, By. TolElli

c

<J(>

Attached is a copy of PLAINTIFF * S ORIGINAL PETITION

This instrument was filed on the 15 fh day of April, 2015. in the above cited cause number

and court. The instrument attached describes the claim against you.

YOU HAVE BEEN SUED, You may employ an attorney. If you or your attorney do not file a

written answer with the District Clerk who issued this citation by 1Q:0D a.m. on the Monday

next following tho expiration of 20 days after you were served this citation and petition,

a default judgment may be taken against you,

TO OFFICER SERVING:

This citation was issued on 15th day of April, 201S, under my hand and

seal of said court.

/'tf A. H4»*<r %r v

/gV . VCrÿlRls fiSNIEL, District Cleric

i5 _j\—\ County, Texas

600*;ÿ=. Caroline Houston, Texas 77002

V4N Box 4651, Houston, Texas 77210)

.....GENERATED BY: CHAMBERS, WANDA RENE ULW/ /l 077704

N.

Issued at request pfi

GILL, NED III

6575 WEST LOOP SOUTH, SUITE

BELLAIRE, TX 77401

Tel: (713) 271- S 282

Bar No. ; 7921400

OFFICER/AUTHOR12ED PERSON RETURN

4oo of A(?nl Game to hand at o .M. , 36 .

1

clock , on the

FrMÿ?iaa.<AJ _

/r ,H.i on the day of

/vDf C r by delivering toVi

true copy of this citation together with the accompanying J

'V12uVvV £=£ [)h VkJifVrGirattached thereto andi endorsed on said copy of the Citation the date of delivery.

To certify which laffix my hand officially this f day of fi\pn f

Executed. at (address) in

AmS County at Iv.tt o * clock npA

efendant, in perBOIL, a

copy(iesÿ'of the

. avc -

|T' Evpneg

_ of j-ÿVfis

Fee: $

County, Texas

OliUtC

Affiant

rW2 By linn i<SlMn'n£yÿ

Seput-y

_

On this day, UTt , known to me to be the person whose

signature appears on the foregoing return, personally appeared . After being by me duly sworn,

he/ she stated that this citation was executed by him/her in the exact manner recited on the

return.

Apr’

SWORN TO AND SUBSCRIBED BEFORE ME, on this 3.1 dny of L ,

3pl5 .

Notary Public itOife KHANGif ETTSO MY COMMISSION EXPIRES 1

Pabfuaiy 41, BD16

RECORDER'S MEMORANDUM

ThisHBtomedlbrfpw

antelimed'mafling W.IVT.CIH.f
3 

4;i5r2D15 12:02:29 PM

Chris Oaÿet - District Clerk Harris County

Emafope No. 4697111

By: Sherry1 Dowaft 2015-21720 Filed: 4/15/201& 12:D2;29 PM /Court: 151

NOGREGORYPHAM, JOHN MA IN THE DISTRICT COURT

and RAYMOND DAO §

*

§

V, § . JUDICIAL DESTRICT

5

W, GARRY WALDROP, DOS,INC. § HARRIS COUNTY, TEXAS

d/b/a LIFETIME DENTAL CARE §

PLAINTIFFS* ORIGINAL PETITION

70 THEHONORABLEJUDGE OFSAfD COURT:

Comes now Plaintiffs, GREGORY PHAM, JOHN MA and RAYMOND DAOs by

and through their attorney of record, Ned QiAi, III; and files this their Original Petition

complaining of the uniawfut acts of W, GARRY WALDROP, DOS, INC; d/b/a LIFETIME

DENTAL CARE and, tor cause of action, would respectfully show the Court:

Discovery ControlPlan - Level 2

1Ills GREGORY PHAM, JOHN MA and RAYMOND DAO!s intent that discovery

in this case be conducted under T£X, R, CiV. P. 190-3, discovery control plan - ievei 2.

Parties andService

2. GREGORY PHAM is an individual who resides in Houston, Hams County,

Texas, JOHN MA is an individual who resides in Houston, Hama County, Texas,

RAYMOND DAO is an individual who resides in Houston, Harris County, Texas

3- Defendant, W, GARRY WALDROP, DD$, INC. ri/hfe LIFETIME DENTAL

CARE fe a tor profit Texas Corporation, doing business in the City of Katy, Hams

County, Texas and may be served with proceÿ by servingits registered agent as listed

Page 1 offi
4 

with the State of Texas: W> GARRY WALDROP at 902 Frostwood, No. 186, Houston,

Texas 77024 or anywhere the registered agent or a corporate officer may be located.

Jurisdiction end Venue

4, This Court has jurisdiction over the Defendant because W. GARRY

WALDROP, DDS, ING. d/h/a LIFETIME DENTAL CARE is a Texas Corporation doing

business in the City of Katy, County of Harris and State of Texas, The Court has

jurisdiction over the controversy because the subject matter in controversy is within the

jurisdictional limits of this court

5, Venue is proper in Harris County, Texas, because the events underlying this

lawsuit occurred in Harris County, Texas*

Factual Background

6. The Plaintiffs were employed as contract dentists for W. GARRY WALDROP,

DDS, Inc, d/b/a LIFETIME DENTAL CARE {hereinafter "WALOROF}. The parties

entered into agreements; wherein WALDROP agreed with each Plaintiff that each

Plaintiff wouid receive compensation for services provided under the agreement,

equaling 25 percent or more>of those revenues collected for the servicesof the Plaintfffdentist It is Plaintiffs' Information and belief that Plaintiffs were not paid in fuH the

amounts agreed upon by the parties, if is further Plaintiffs1 information and belief that

Defendant engaged iri allowing discounts or fabricating discounts to patients fh an effort

to conceal collections, thereby reducing the amount WALDROP wouid he obligated

under the agreements to pay Piaintiff-dentists.

Claim for FRAUD against

W, GARRY WALDROP, DDS, iNC. d/b/a LIFETIME DENTAL CARE.

7. W, GARRY WALDROP, DDS, INC. d/b/a LIFETIME DENTAL CARE

Page 2 of £
5 

concealed or failed to disclose certain feds to the Plaintiffs; W. GARRY WALDROP,

PPG; INC, mm LIFETIME: DENTAL CARE had a ddy to disclose certain facts to

Pfelhflffs, these fads were material and W, GARRY WALDROP, DDS, INC: d/b/a

LIFETIME DENTAL QARE knew or was ignorant or did not have an opportunity to

discover the facts, or W. GARRY WALDROP, DOS, INC. dtota LIFETIME DENTAL

CARE was deliberately silent when It had a duty to speak. Plaintiffs were Injured from

Defendant's conduct.

Claim for BREACHOF CONTRACT against

W. GARRY WALDROP, DDS, INC.mmLIFETIME DENTAL CARE.

8. GREGORY PHAM, JOHN MA and RAYMOND DAO where ell contract

employees for W. GARRY WALDROP, Dpfc INC. dfc/a LIFETIME DENTAL CARE.

WALDROP agreed to pay compensation for services provided to WALDROP by

GREGORY PHAM, JOHN MA and RAYMOND DAO. Piainiiffs provided the services as

agreed, bpt WALDROP failed So pay td RainSffs the full amount of compensation as

agreed. As a result of said breach of eontraoh Plaintiffs have incurred damages and/or

financlanoss:

Conditions Precedent

£L All conditions precedent required of claimants under the taw have been

performed and/or have occurred.

Attorney Fees

1C. GREGORY PHAM, JOHN MA and RAYMOND DAO re-aliege and

incorporate herein, by referenceÿ the same as if My copied and set forth at length, the

factual allegations set out in the Petition.

Page $of S
6 

tl. GREGORY PHAM, JOHNMA and RAYMOND DAO are entitled to attorney

fees incurred in the prosecution of this suit, and m the event of a successful appeal of

the judgment, GREGORY PHAM, JOHN MA and RAYMOND DAO are entitled to

attorney fees for the appeal,

Damages

12. By reason erf the above and foregoing, GREGORY PHAM. JOHN MA and

RAYMOND DAO have been damaged in the sum: of up to hut no more than the

maximum Jurisdictional limits of this Court. This amount Is based on the current status

of the case and the information known or expected to be known during the course of the

case, GREGORY PHAM, JOHN MA and RAYMOND DAO reserve the right; to adjust

this amount as the damages ate developedit. As a direct or proximate result: of the occurrence made the basis of diis

lawsuit, GREGORY PHAM, JOHN MA- and RAYMOND DAO were caused to suffer

damage, loss and injury, in addition GREGORY PHAM, JOHN MA and RAYMOND

DAO.have suffered;-

(a)Loss of income;

fb) Finandajioss;

interest

14, GREGORY PHAM, JOHN MA and RAYMOND DAO 'Would request

prejudgmeht and post-judgment interest at the maximum legal rate compounded daily

oh both the principal and allpenalties from defendants.

Amendments

Page 4 of6
7 

m GREGORY PHAM, JOHN MA and RAYMOND DAO spedfioaily reserve the

right to amend and plead such other and different points as further discovery is made:in

this cause of action*

doryTrial Demand

16, GREGORY PHAM. JOHN MA and RAYMOND DAO hereby make their

demand for trial by jury.

Prayer for Relief

17. WHEREFORE, PREMISES CONSIDERED, GREGORY PHAM, JOHN MA and

RAYMOND DAO prey that Defendant W. GARRY WALDROP, DDS, fNC. d/bm

LiFETiMEiDENTAL CARE be duty cited to appear and answer herein; and that, upon a

ftml trial of this cause, that GREGORY PHAM, JOHN MA and RAYMOND DAO

recover;

a. judgment against Defendant for the damages as set forth above, in ah smpurti

within the jurisdictional limits of this Gourt octhe maximum amount stated hereih;

h interest pn the judgment at the legal rate Norn date of judgment until paid in

full;

a prejudigment interest from the date of the incident to the data of Judgment on

the;damagesas ajowed bylaw;

4exemplary damages;

e. costs of court;

f.reasonable and necessary attorney fees; and

Page'Spfe
8 

g. such other and further relief, both general and spedal, at law or in equity, to

which GREGORY PHAM, JOHN MA and RAYMOND DAO may show himself to be

justly entitled.

Respectfully submitted,

GILL REVACK SAMAAN & MULLER, LLP

6575 West Loop South, Suite 600

Bellaire, Texas 77401

Tel: (713) 271-8282

Fax: (713) 271-2112

£

By:.

NED GILL, M

State Bar No. 07921400

Attorney for Plaintiffs GREGORY PHAM,

JOHN MA and RAYMOND DAO

Page 6 of 6
10 

5ÿ1a'2015 2:15-42 PM

Chris Daniel - Dlslriol Clerk Harris Coenly

EnvalopE JJo. 5341703

By: JIMMY RODRIGUEZ

Fifed; 5/1a'2G15 2:15:42 PM

NO. 2015-31720

GREGORY PHAM, JOHN MA IN THE DISTRICT COURT

And RAYMOND DAO

Plaintiffs,

§

§

§

V, § 151ST JUDICIAL DISTRICT

§

W, GARRY WALDROP, DDS, INC.

d/b/a LIFETIME DENTAL CARE

Defendant.

§

§

§ HARRIS COUNTY, TEXAS

MOTION FOR DEFAULT JUDGMENT

NOW COMES GREGORY PHAM, JOHN MA and RAYMOND DAO, hereinafter

Plaintiffs, and file this Motion for Default Judgment, and in support hereof, shows the

court the following:

1„ Plaintiffs filed suit agamst Defendant, W, GARRY WALDROP, DDS, INC.

D/B/A LIFETIME DENTAL CARE on April 15, 2015, seeking damages for fraud and

breach of contract,

2. Defendant, W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME DENTAL

CARE, was served with citation on April 17, 2015. Defendant, W. GARRY WALDROP,

DDS, INC. D/8/A LIFETIME DENTAL CARE, has failed to appear or file an answer

within the time allowed by law and has wholly made default. The citation with proof of

service of Defendant has been on file with the clerk of the court ten days, exclusive of

the day of filing and the day of judgment.

3, The following documents are attached to this Motion:

1, Certificate of Last Known Maiimg Address

2. Nonmilitary Affidavit

WHEREFORE, premises considered, Plaintiffs pray that the Court enter

judgment against Defendant, W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME

DENTAL CARE; that Plaintiffs recover costs expended in filing this suit; that Plaintiffs

recover prejudgment and postjudgment interest; and that Plaintiffs have such other and

further relief at law or in equity to which Plaintiffs may be justly entitled.

Respectfully submitted,

GILL REVACK SAMAAN & MULLER, LLP

Page1of2
11 

6575 West Loop South, Suite 600

Beiiaire, Texas 77401

Tel (713)271-8282

Fax. (713) 271-21ÿ

/

By: J

NED GILL, til

Texas Bar No, 07921400

Email: nedgiij3j®qrslegaLcom

Attorney for Plaintiffs

Pago t of 2
12 

5/19/2015 2:15-42 PM

Chris Daniel - DIslricL Clerii Hamis County

Envelope Na. 5341703

By: JtMMY RODRIGUEZ

Filed; 5/19/2015 2:15:42 PM

NO. 2015-21720

GREGORY PHAM, JOHN MA

And RAYMOND DAO

Plaintiffs,

§ IN THE DISTRICT COURT

§

§

V, § 151ST JUDICIAL DISTRICT

§

W, GARRY WALDROP, DPS, INC.

d/b/a LIFETIME DENTAL CARE

Defendant

§

§

§ HARRIS COUNTY, TEXAS

NONMILITARY AFFIDAVIT

BEFORE MEr the undersigned authority, on this day personally appeared NED

GILL, III, who swore on oath that the following facts are true;

"My name is NED GILL, III. I am over 18 years of age, of sound mind, and fully

competent to make this affidavit, i have personal knowledge of the facts stated herein

and they are aI! true and correct.

NTo the best of my belief and knowledge, W. GARRY WALDROP, DDS, INC.,

d/b/a LIFETIME DENTAL CARE is not currently in military service and has not been in

military service since this suit was filed.”

SIGNED on 1 /

/ /

Respectfully submitted,

GILL REVACK SAMAAN & MULLER, LLP

6575 West Loop South, Suite 600

Betlaire, Texas 7/401

Tel. (713} 271-8282

Fax. (713) 271,2.} 12

:ÿÿÿ

By:

NED GILL, III

Texas Bar No. 07921400

Email: nedgili3@orsiegai.com

Attorney for Plaintiffs

Page 1of2
13 

SWORN TO BEFORE ME on OV/ÿ,14 d&i*! .

* V.)

=ÿbjjik2£e ’>TYyi,uC)

Notary Public, State of te

REBECCA SMITH

jÿdLÿ'Q 1UY COMMISSIONEXPIRES

JANUARY 20, 2019

xn >

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15 

5/19/2015 3:21:59 PM

Chris Daniel - Dislricl Clerk Harris Counly

Envelope No. 5344962

By: JIMMY RODRIQUEZ

Filed; 5/19/2015 3:21:59 PM

NO. 2015-21720

GREGORY PHAM, JOHN MA IN THE DISTRICT COURT

And RAYMOND DAO

Plaintiffs,

§

§

§

V. § 151ST JUDICIAL DISTRICT

§

W, GARRY WALDROP, DOS, INC.

midLIFETIME DENTAL CARE

Defendant,

§

§

§ HARRIS COUNTY, TEXAS

NOTICE OF HEARING

PLEASE TAKE NOTICE that a hearing has been set on the Motion for Default

Judgment for June 29, 2015 at S:00 a.m. in the 151st Judicial District Court of Harris

County, Texas.

Respectfuliysubmitted,

GILL, REVACK, SAMAAN & MULLER, LLP

6575 West Loop South, Suite 600

Bellaire, Texas 77401

Tel. (713)271"8282

Fax (713)271-2112

By;

NED GILL, Ell

Texas Bar No 07921400

Nedglll3@grsle.aai.com

Attorney for Plaintiffs

Page 1of1
16 

5/19/2015 2:15:42 PM

Chris Daniel - Dislricl Clerk Harris Courtly

Envelope No. 5341703

By: JIMMY RODRIGUEZ

Filed: 5/19/2015 2:15:42 PM

NO, 2015-21720

GREGORY PHAM, JOHN MA

And RAYMONO DAO

Plaintiffs,

§ IN THE DISTRICT COURT

§

§

V. § 151ST JUDICIAL DISTRICT

§

W, GARRY WALDROP. DDS, INC.

d/b/a LIFETIME DENTAL CARE

Defendant

§

§

§ HARRIS COUNTY, TEXAS

PLAINTIFFS’ CERTIFICATE OF LAST KNOWN MAILING ADDRESS

I CERTIFY that the last known mailing address of Defendant W. GARRY

WALDROP, DDS, INC., d/b/a LIFETIME DENTAL CARE, against whom judgment is

taken in the above-entitled and -numbered cause, is 970 South Fry Road, Katy, Texas

77450.

Respectfully submitted,

GILL REVACK SAMAAN & MULLER, LLP

6575 West Loop South, Suite 600

Bellatre, Texas 77401

Tel, (713) 271-8282

Fax. (713) 271-2122

By:

NED GILL, III

Texas Bar No. 07921400

Email: nedqil]3@qr$fecta[.com

Attorney for Plaintiffs
 1 REPORTER'S RECORD

 2 VOLUME 1 OF 1 VOLUME

 3 CAUSE NO. 2015-21720

 4 COURT OF APPEALS CASE NO. 14-15-00747-CV

 5

GREGORY PHAM, JOHN MA, ) IN THE DISTRICT COURT

 6 and RAYMOND DAO, )

 Plaintiffs, ) 

 7 ) 

VS. ) HARRIS COUNTY, TEXAS

 8 ) 

W GARRY WALDROP, DDS, INC., ) 

 9 DBA LIFETIME DENTAL CARE, )

 Defendant. ) 151ST JUDICIAL DISTRICT

10

11

12

13 *********************************

14 MOTION FOR DEFAULT

15 *********************************

16

17 On the 29th day of June, 2015, the 

18 following proceedings came on to be heard in the 

19 above-entitled and numbered cause before the Honorable 

20 Mike Engelhart, Judge Presiding, held in Houston, 

21 Harris County, Texas.

22 Proceedings reported by Certified 

23 Shorthand Reporter and Machine 

24 Shorthand/Computer-Aided Transcription. 

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 5:53:21 PM CHRISTOPHER A. PRINE Clerk
 2

 1 A P P E A R A N C E S

 2

Mr. Ned Gill, III 

 3 State Bar No. 07921400

nedgill3@grslegal.com

 4 GILL REVACK SAMAAN & MULLER, LLP

6575 West Loop South, Suite 600 

 5 Bellaire, Texas 77401 

Telephone: (713) 271-8282 

 6 Telecopier: (713) 271-2112

COUNSEL FOR THE PLAINTIFFS

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 3

 1 VOLUME 1 OF 1 VOLUME

 2 MOTION FOR DEFAULT

 3 CHRONOLOGICAL INDEX

 4 JUNE 29, 2015 PAGE 

 5 Appearances . . . . . . . . . . . . . . . . . 2

 6 Chronological Index . . . . . . . . . . . . . 3

 7 Alphabetical Witness Index . . . . . . . . . .4

 8 Proceedings . . . . . . . . . . . . . . . . . 5

 9 PLAINTIFFS' WITNESSES DIRECT CROSS

10 Pham, Gregory 

By Mr. Gill 6

11

Ma, John

12 By Mr. Gill 9

13 Dao, Raymond

By Mr. Gill 11

14

Gill, III, Ned

15 By Mr. Gill 13

16 Plaintiffs Rest . . . . . . . . . . . . . . .14

17 Court's Findings . . . . . . . . . . . . . . 14

18 Adjourned . . . . . . . . . . . . . . . . . .16

19 Court Reporter's Certificate . . . . . . . . 17

20 Word Index . . . . . . . . . . . . . . . . . 18

21 (No exhibits)

22

23

24

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 4

 1 VOLUME 1 OF 1 VOLUME

 2 MOTION FOR DEFAULT

 3 ALPHABETICAL WITNESS INDEX

 4 WITNESSES DIRECT CROSS 

 5 Dao, Raymond

By Mr. Gill 11

 6

Gill, III, Ned

 7 By Mr. Gill 13

 8 Ma, John 

By Mr. Gill 9

 9

Pham, Gregory 

10 By Mr. Gill 6

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 5

 1 P R O C E E D I N G S

 2 06/29/2015 (At the bench, on the record)

 3 THE COURT: This is 2015-21720, Pham, 

 4 P-H-A-M, versus W Garry, with two R's, Waldrop, 

 5 W-A-L-D-R-O-P , DDS, Inc. We're here for what I'm 

 6 guessing is a prove-up of a final default judgment.

 7 MR. GILL: Yes, Judge.

 8 THE COURT: Final meaning it would 

 9 resolve all the claims and all the parties.

10 MR. GILL: All the claims, controversies 

11 and parties.

12 THE COURT: All right. Nice and slow 

13 and loud because Carolyn is taking down what you say. 

14 Counsel, would you tell us who you are and who you 

15 represent . 

16 MR. GILL: My name is Ned Gill , III. I 

17 represent the Plaintiffs in the case. That's Gregory 

18 Pham, P-H-A-M ; John Ma, M-A ; and Raymond Dao, D -A-O.

19 THE COURT: All right. And these are 

20 the three gentlemen that are here today? 

21 MR. GILL: That's correct, Judge.

22 THE COURT: All right. I assume they're 

23 gentlemen . The Court should not assume such things .

24 (Laughing)

25 THE COURT: All right. Would you please 

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 6

 1 raise your right hand so I can swear you in. They're 

 2 doing so.

 3 (Oath administered to the witnesses)

 4 THE COURT: All right. All three have 

 5 answered in the affirmative . Very good. Mr. Gill.

 6 MR. GILL: Yes, sir.

 7 THE COURT: Who do you wish to call 

 8 first?

 9 MR. GILL: I'm going to call Plaintiff 

10 number one, Gregory Pham.

11 THE COURT: All right. Mr. Pham, listen 

12 carefully to the questions . Only answer the question 

13 that you are asked. And please answer nice and loud 

14 and slow so Carolyn can take down what you're saying. 

15 Okay? 

16 THE WITNESS: Okay. 

17 THE COURT: Please proceed. 

18 MR. GILL: Thank you, Judge. 

19 GREGOR Y PHAM ,

20 having been first duly sworn, testified as follows:

 

21 DIRECT EXAMINATION

22 BY MR. GILL:

23 Q. Mr. Pham, state your name for the record and 

24 spell your last name. 

25 A. Gregory Pham , P as in Paul, H-A-M.

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 7

 1 Q. And are you the Plaintiff in the case, in 

 2 Cause N umber 2015-21720? 

 3 A. Yes.

 4 Q. And are you familiar with the Defendant in 

 5 the case?

 6 A. Yes.

 7 Q. And what is your relationship with the 

 8 Defendant?

 9 A. I was an employer -- employee with the 

10 Waldrops . 

11 Q. And are you a licensed dentist?

12 A. Yes.

13 Q. Are you in good standing with the State of 

14 Texas?

15 A. Yes.

16 Q. And did you have an agreement with the 

17 Defendant in the case to provide a dental service to 

18 him?

19 A. His patient, yes.

20 Q. And do you know the terms of that agreement?

21 A. It's 25 percent of production.

22 Q. Okay. Was that a written or verbal contract 

23 with the Defendant?

24 A. A written contract.

25 Q. Okay. And did he pay you all the amount 

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 8

 1 that were due to you under that agreement?

 2 A. No. 

 3 Q. And do you know the amount that he was 

 4 insufficient in paying you?

 5 A. Yes.

 6 Q. And could you tell the Court what that 

 7 amount was?

 8 A. It's $58,343.

 9 Q. Are you asking this Court to grant you a 

10 judgment in the amount of $58,343 against the 

11 Defendant in this case?

12 A. Yes.

13 Q. And to pursue the judgment in this case , did 

14 you have to hire an attorney?

15 A. Yes.

16 Q. Did you hire me to represent you in pursuing 

17 this judgment?

18 A. Yes.

19 Q. And did you believe it was necessary for you 

20 to hire me to pursue this judgment?

21 A. Yes.

22 MR. GILL: Judge, I'll pass this witness 

23 and ask that I may call the next witness.

24 THE COURT: Okay. Very good. Sure. 

25 Who do you wish to call next?

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
 9

 1 MR. GILL: John Ma.

 2 THE COURT: All right. Please change 

 3 places and please remember my instruction to speak 

 4 loud and slow. 

 5 JOHN MA, 

 6 having been previously duly sworn, testified as 

 7 follows: 

 8 DIRECT EXAMINATION

 9 BY MR. GILL: 

10 Q. Mr. Ma, could you state your full name for 

11 the court reporter and spell your last name, please. 

12 A. Yes. John Ma . Last name is M-A.

13 Q. Are you a Plaintiff in Cause N umber

14 2015-21720?

15 A. Yes.

16 Q. Do you know the Defendant in this case?

17 A. Yes.

18 Q. What is your relationship to the Defendant 

19 in this case?

20 A. He is my employer.

21 THE COURT: Slow down . You're doing 

22 fine. I need you to slow down just a little.

23 MR. GILL: Sorry, Judge.

24 Q. (By Mr. Gill) What is your relationship to 

25 the Defendant in this case?

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
10

 1 A. He was my employer.

 2 Q. And how were you so employed with the 

 3 Defendant in this case?

 4 A. I was an associate dentist at his practice.

 5 Q. And did you have an agreement with the 

 6 dentist in this case for you to get paid?

 7 A. Yes.

 8 Q. And do you know the terms of that agreement?

 9 A. Yes . It was 25 percent of any production 

10 completed at the office.

11 Q. Was that a written agreement?

12 A. Yes.

13 Q. And do you know the amount of money he 

14 actually paid you and the amount of money he actually 

15 should have paid you?

16 A. Yes.

17 Q. And what is the difference in that amount?

18 A. $19,462.

19 Q. Are you asking this Court to grant you a 

20 judgment against the Defendant for $19,462?

21 A. Yes.

22 Q. To pursue that judgment , did you have to 

23 hire an attorney in that case?

24 A. Yes.

25 Q. Did you hire me to help you pursue this 

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
11

 1 judgment?

 2 A. Yes.

 3 Q. Did you think it was necessary for you to 

 4 hire an attorney to pursue that judgment?

 5 A. Yes.

 6 MR. GILL: Judge, at this time I will 

 7 pass this witness and call another witness.

 8 THE COURT: Very good. Who do you wish 

 9 to call?

10 MR. GILL: Raymond Dao.

11 THE COURT: All right. Mr. Dao, same 

12 instruction , right? Nice and loud.

13 RAYMOND DAO, 

14 having been previously duly sworn, testified as 

15 follows: 

16 DIRECT EXAMINATION

17 BY MR. GILL: 

18 Q. Mr. Dao, could you state your full name for 

19 the court reporter, spelling your last name, please. 

20 A. Raymond Dao, D -A-O.

21 Q. Are you a Plaintiff in Cause Number

22 2015-21720?

23 A. Yes.

24 Q. And are you familiar with the Defendant in 

25 this case?

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
12

 1 A. Yes.

 2 Q. Did you -- tell the Court what your

 3 relationship with the Defendant was?

 4 A. I was an associate dentist at his practice.

 5 Q. And did you have an agreement with the 

 6 Defendant on amount of money that he would pay you as 

 7 an associate dentist?

 8 A. Yes.

 9 Q. And was that agreement in writing?

10 A. Yes.

11 Q. And do you know the terms of that agreement?

12 A. Yes.

13 Q. And could you state briefly for the Court 

14 what the terms was?

15 A. 25 percent of production.

16 Q. Do you know the amount of production that 

17 you incurred and the amount that he paid you?

18 A. Yes.

19 Q. And do you know the amount that he should 

20 have paid you?

21 A. Yeah.

22 Q. Is there a difference?

23 A. Yes.

24 Q. And could you tell the Court the difference 

25 in that amount?

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
13

 1 A. $26,759.

 2 Q. Are you asking the Court to grant you a 

 3 judgment against Mr. Waldrop , the Defendant in this 

 4 case, in the amount of $26,759?

 5 A. Yes.

 6 Q. Did you have to hire an attorney to pursue a 

 7 judgment in that case?

 8 A. Yes.

 9 Q. And did you hire me to pursue that judgment?

10 A. Yes.

11 Q. Do you believe hiring me was necessary to 

12 pursue that judgment?

13 A. Yes.

14 MR. GILL: I have no other questions ,

15 Judge. I would like to call myself for attorney 's 

16 fees.

17 THE COURT: Okay. Switch places,

18 please .

19 DIRECT EXAMINATION

20 MR. GILL: My name is Ned Gill , III.

21 I'm a licensed attorney in the state of Texas . I've 

22 been practicing for over 24 years. I practice in 

23 Harris County, Fort Bend County , Liberty County , other 

24 counties . I practice primarily civil laws, criminal 

25 laws, and family law. 

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
14

 1 I have been hired by these three 

 2 Plaintiffs in the case to pursue a judgment against 

 3 the Defendant in this case . I have been paid 

 4 approximately $8,000 to pursue five judgments in this 

 5 case. But these are three Plaintiffs in the case . 

 6 And for these three Plaintiffs in the 

 7 case I anticipate that it was necessary for me to 

 8 incur approximately $1,600 for each of these 

 9 particular Plaintiffs in the case . 

10 I believe the time I spent on this case 

11 was necessary to get a judgment in this case and I 

12 believe an award of attorney 's fees against the 

13 Defendant in this case and in favor of the Plaintiffs 

14 of $1,600 each is reasonable and necessary .

15 THE COURT: Okay. Anything further ? 

16 PLAINTIFFS REST

17 MR. GILL: That's all, Judge. We rest.

18 THE COURT: All right . Very good. Then 

19 I will -- I find that the Defendant has -- let me 

20 double -check something .

21 COURT'S FINDINGS

22 THE COURT: All right . I find that the 

23 Defendant W Garry Waldrop, DDS, Inc., DBA Lifetime

24 Dental Care, has failed to appear despite having been 

25 served with citation and process . 

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
15

 1 And I find in favor of the Plaintiffs in 

 2 the amounts stated , including actual damages ,

 3 prejudgment interest , the attorney 's fees request ed by 

 4 Mr. Gill, and all taxable costs of court, as well as 

 5 postjudgment interest at the rate of 5 percent from 

 6 the date after judgment until collected . 

 7 If you would make the change in this 

 8 proposed judgment , take out the number for cost of 

 9 court on each of the three Plaintiffs and just write 

10 it as Number Four, all taxable costs of court, I would 

11 appreciate that. And the rest of the language looks 

12 okay. 

13 On the postjudgment interest language ,

14 if you could make it clear that it's interest at the 

15 rate of 5 percent per year on the total judgment . It 

16 doesn't say postjudgment interest . Just include the 

17 word "postjudgment " so that it's clear it starts 

18 accruing --

19 MR. GILL: Got it, Judge.

20 THE COURT: -- after the judgment . 

21 And then you have the language in there 

22 that it's final. If you would make in the title of 

23 the judgment if you would put the word "final" up here 

24 as well . Anytime you have a final -- I mean, every 

25 judgment is either final or partial, right? So it is 

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
16

 1 very helpful to the clerks if you make it clear up 

 2 here which it is so they don't have to scour the 

 3 judgment looking for that language. 

 4 So if it's interlocutory, mark it as 

 5 interlocutory . If it's final, mark it final.

 6 MR. GILL: I will , Judge. Do you want

 7 me to e-file that ? 

 8 THE COURT: And if you would e-file 

 9 that, that would be great. That way I could 

10 electronically sign it.

11 MR. GILL: Perfect. I will, Judge. 

12 THE COURT: All right. I'll make a 

13 note. Is there anything else?

14 MR. GILL: That's all, Judge.

15 THE COURT: All right. Very good. 

16 Congratulations, gentlemen. Good luck to you. 

17 MR. GILL: Thank you , Your Honor.

18 THE COURT: Now the hard part begins. 

19 (Laughing)

20 (Recessed) 

21

22

23

24

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
17

 1 THE STATE OF TEXAS ) 

 2 COUNTY OF HARRIS ) 

 3 I, Carolyn Ruiz Coronado, Official Court Reporter 

in and for the 151st Civil District Court of Harris 

 4 County, State of Texas, do hereby certify that the 

above and foregoing contains a true and correct 

 5 transcription of all portions of evidence and other 

proceedings requested in writing by counsel for the 

 6 parties to be included in this volume of the 

Reporter's Record, in the above-styled and numbered 

 7 cause, all of which occurred in open court or in 

chambers and were reported by me.

 8

I further certify that this Reporter's Record of 

 9 the proceedings truly and correctly reflects the 

exhibits, if any, admitted, tendered in an offer of 

10 proof or offered into evidence. 

11 I further certify that the total cost for the 

preparation of this Reporter's Record is $180.00 and 

12 will be paid by Zimmerman, Axelrad, Meyer, Stern & 

Wise, P.C.

13

14 WITNESS MY OFFICIAL HAND this the 8th day of 

15 September , 2015. 

16 /s/Carolyn Ruiz Coronado 

Carolyn Ruiz Coronado, Texas CSR#7113 

17 Expiration Date: 12/31/2016 

Official Reporter, 151st Civil District Court 

18 Harris County, Texas

201 Caroline, Houston, Tx 77002

19 (713) 398-3548

20

21

22

23

24

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
18

 1 WORD INDEX

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.

06/29/2015 MOTION FOR DEFAULT

Carolyn Ruiz Coronado, CSR, RPR
- 0 - 0 7 9 2 1 4 0 0 [ 1 ]

2 : 3

- 1 - 1 , 6 0 0 [ 2 ] 1 4 : 8 , 1 4

1 4 - 1 5 - 0 0 7 4 7 - C V

[ 1 ] 1 : 4

1 5 1 S T [ 1 ] 1 : 9

1 5 1 s t [ 2 ] 1 7 : 3 , 1 7

1 8 0 . 0 0 [ 1 ]

1 7 : 1 1

1 9 , 4 6 2 [ 2 ]

1 0 : 1 8 , 2 0

- 2 - 2 0 1 5 [ 4 ] 1 : 1 7 ;

3 : 4 ; 5 : 2 ;

1 7 : 1 5

2 0 1 5 - 2 1 7 2 0 [ 5 ]

1 : 3 ; 5 : 3 ; 7 : 2 ;

9 : 1 4 ; 1 1 : 2 2

2 0 1 6 [ 1 ] 1 7 : 1 7

2 6 , 7 5 9 [ 2 ]

1 3 : 1 , 4

2 7 1 - 2 1 1 2 [ 1 ]

2 : 6

2 7 1 - 8 2 8 2 [ 1 ]

2 : 5

2 9 t h [ 1 ] 1 : 1 7

- 3 - 3 9 8 - 3 5 4 8 [ 1 ]

1 7 : 1 9

- 5 - 5 8 , 3 4 3 [ 2 ] 8 : 8 , 1 0

- 6 -

6 5 7 5 [ 1 ] 2 : 4

- 7 - 7 1 1 3 [ 1 ] 1 7 : 1 6

7 7 0 0 2 [ 1 ]

1 7 : 1 8

7 7 4 0 1 [ 1 ] 2 : 5

- 8 - 8 , 0 0 0 [ 1 ] 1 4 : 4

- A - a b o v e [ 1 ] 1 7 : 4

a b o v e - e n t i t l e d

[ 1 ] 1 : 1 9

a b o v e - s t y l e d

[ 1 ] 1 7 : 6

a c c r u i n g [ 1 ]

1 5 : 1 8

a c t u a l [ 1 ] 1 5 : 2

a c t u a l l y [ 2 ]

1 0 : 1 4

A d j o u r n e d [ 1 ]

3 : 1 8

a d m i n i s t e r e d

[ 1 ] 6 : 3

a d m i t t e d [ 1 ]

1 7 : 9

a f f i r m a t i v e [ 1 ]

6 : 5

a f t e r [ 2 ] 1 5 : 6 , 2 0

a g a i n s t [ 5 ]

8 : 1 0 ; 1 0 : 2 0 ;

1 3 : 3 ; 1 4 : 2 , 1 2

a g r e e m e n t [ 9 ]

7 : 1 6 , 2 0 ; 8 : 1 ;

1 0 : 5 , 8 , 1 1 ;

1 2 : 5 , 9 , 1 1

A L P H A B E T I C A L

[ 1 ] 4 : 3

A l p h a b e t i c a l

[ 1 ] 3 : 7

a m o u n t [ 1 3 ]

7 : 2 5 ; 8 : 3 , 7 , 1 0 ; 1 0 : 1 3 , 1 4 ,

1 7 ; 1 2 : 6 , 1 6 , 1 7 , 1 9 , 2 5 ;

1 3 : 4

a m o u n t s [ 1 ]

1 5 : 2

a n o t h e r [ 1 ]

1 1 : 7

a n s w e r [ 2 ]

6 : 1 2 , 1 3

a n s w e r e d [ 1 ]

6 : 5

a n t i c i p a t e [ 1 ]

1 4 : 7

A n y t h i n g [ 1 ]

1 4 : 1 5

a n y t h i n g [ 1 ]

1 6 : 1 3

A n y t i m e [ 1 ]

1 5 : 2 4

A P P E A L S [ 1 ]

1 : 4

a p p e a r [ 1 ]

1 4 : 2 4

A p p e a r a n c e s

[ 1 ] 3 : 5

a p p r e c i a t e [ 1 ]

1 5 : 1 1

a p p r o x i m a t e l y

[ 2 ] 1 4 : 4 , 8

a s k e d [ 1 ] 6 : 1 3

a s k i n g [ 3 ] 8 : 9 ;

1 0 : 1 9 ; 1 3 : 2

a s s o c i a t e [ 3 ]

1 0 : 4 ; 1 2 : 4 , 7

a s s u m e [ 2 ]

5 : 2 2 , 2 3

a t t o r n e y [ 5 ]

8 : 1 4 ; 1 0 : 2 3 ;

1 1 : 4 ; 1 3 : 6 , 2 1

a t t o r n e y ' s [ 3 ]

1 3 : 1 5 ; 1 4 : 1 2 ;

1 5 : 3

a w a r d [ 1 ]

1 4 : 1 2

A x e l r a d [ 1 ]

1 7 : 1 2

- B -

b e c a u s e [ 1 ]

5 : 1 3

b e e n [ 7 ] 6 : 2 0 ;

9 : 6 ; 1 1 : 1 4 ;

1 3 : 2 2 ; 1 4 : 1 , 3 , 2 4

b e f o r e [ 1 ] 1 : 1 9

b e g i n s [ 1 ]

1 6 : 1 8

b e l i e v e [ 4 ]

8 : 1 9 ; 1 3 : 1 1 ;

1 4 : 1 0 , 1 2

B e l l a i r e [ 1 ]

2 : 5

b e n c h [ 1 ] 5 : 2

B e n d [ 1 ] 1 3 : 2 3

b r i e f l y [ 1 ]

1 2 : 1 3

- C - c a l l [ 7 ] 6 : 7 , 9 ;

8 : 2 3 , 2 5 ; 1 1 : 7 , 9 ; 1 3 : 1 5

c a m e [ 1 ] 1 : 1 8

C A R E [ 1 ] 1 : 9

C a r e [ 1 ] 1 4 : 2 4

c a r e f u l l y [ 1 ]

6 : 1 2

C a r o l i n e [ 1 ]

1 7 : 1 8

C a r o l y n [ 5 ]

5 : 1 3 ; 6 : 1 4 ;

1 7 : 3 , 1 6

C A S E [ 1 ] 1 : 4

c a s e [ 2 4 ] 5 : 1 7 ;

7 : 1 , 5 , 1 7 ;

8 : 1 1 , 1 3 ; 9 : 1 6 , 1 9 , 2 5 ; 1 0 : 3 , 6 , 2 3 ; 1 1 : 2 5 ;

1 3 : 4 , 7 ; 1 4 : 2 , 3 , 5 , 7 , 9 , 1 0 , 1 1 , 1 3

C A U S E [ 1 ] 1 : 3

C a u s e [ 3 ] 7 : 2 ;

9 : 1 3 ; 1 1 : 2 1

c a u s e [ 2 ] 1 : 1 9 ;

1 7 : 7

C e r t i f i c a t e [ 1 ]

3 : 1 9
C e r t i f i e d [ 1 ]

1 : 2 2

c e r t i f y [ 3 ]

1 7 : 4 , 8 , 1 1

c h a m b e r s [ 1 ]

1 7 : 7

c h a n g e [ 2 ]

9 : 2 ; 1 5 : 7

C H R O N O L O G I C

A L [ 1 ] 3 : 3

C h r o n o l o g i c a l

[ 1 ] 3 : 6

c i t a t i o n [ 1 ]

1 4 : 2 5

C i v i l [ 2 ] 1 7 : 3 , 1 7

c i v i l [ 1 ] 1 3 : 2 4

c l a i m s [ 2 ] 5 : 9 , 1 0

c l e a r [ 3 ]

1 5 : 1 4 , 1 7 ; 1 6 : 1

c l e r k s [ 1 ] 1 6 : 1

c o l l e c t e d [ 1 ]

1 5 : 6

c o m p l e t e d [ 1 ]

1 0 : 1 0

C o m p u t e r - A i d e

d [ 1 ] 1 : 2 4

C o n g r a t u l a t i o n

s [ 1 ] 1 6 : 1 6

c o n t a i n s [ 1 ]

1 7 : 4

c o n t r a c t [ 2 ]

7 : 2 2 , 2 4

c o n t r o v e r s i e s

[ 1 ] 5 : 1 0

C o r o n a d o [ 3 ]

1 7 : 3 , 1 6

c o r r e c t [ 2 ]

5 : 2 1 ; 1 7 : 4

c o r r e c t l y [ 1 ]

1 7 : 9

c o s t [ 2 ] 1 5 : 8 ;

1 7 : 1 1

c o s t s [ 2 ] 1 5 : 4 , 1 0

c o u l d [ 7 ] 8 : 6 ;

9 : 1 0 ; 1 1 : 1 8 ;

1 2 : 1 3 , 2 4 ;

1 5 : 1 4 ; 1 6 : 9

C O U N S E L [ 1 ]

2 : 6

C o u n s e l [ 1 ]

5 : 1 4

c o u n s e l [ 1 ]

1 7 : 5

c o u n t i e s [ 1 ]

1 3 : 2 4

C O U N T Y [ 2 ]

1 : 7 ; 1 7 : 2

C o u n t y [ 6 ]

1 : 2 1 ; 1 3 : 2 3 ;

1 7 : 4 , 1 8

C O U R T [ 2 6 ]

1 : 4 , 5 ; 5 : 3 , 8 , 1 2 , 1 9 , 2 2 , 2 5 ;

6 : 4 , 7 , 1 1 , 1 7 ;

8 : 2 4 ; 9 : 2 , 2 1 ;

1 1 : 8 , 1 1 ;

1 3 : 1 7 ; 1 4 : 1 5 , 1 8 , 2 2 ; 1 5 : 2 0 ;

1 6 : 8 , 1 2 , 1 5 , 1 8

C o u r t [ 1 2 ]

3 : 1 9 ; 5 : 2 3 ;

8 : 6 , 9 ; 1 0 : 1 9 ;

1 2 : 2 , 1 3 , 2 4 ;

1 3 : 2 ; 1 7 : 3 , 1 7

c o u r t [ 6 ] 9 : 1 1 ;

1 1 : 1 9 ; 1 5 : 4 , 9 , 1 0 ; 1 7 : 7

C O U R T ' S [ 1 ]

1 4 : 2 1

C o u r t ' s [ 1 ]

3 : 1 7

c r i m i n a l [ 1 ]

1 3 : 2 4

C R O S S [ 2 ] 3 : 9 ;

4 : 4

- D - D - A - O [ 2 ] 5 : 1 8 ;

1 1 : 2 0

d a m a g e s [ 1 ]

1 5 : 2

D a t e [ 1 ] 1 7 : 1 7

d a t e [ 1 ] 1 5 : 6

D E F A U L T [ 3 ]

1 : 1 4 ; 3 : 2 ; 4 : 2

d e f a u l t [ 1 ] 5 : 6

D e f e n d a n t [ 1 9 ]

1 : 9 ; 7 : 4 , 8 , 1 7 , 2 3 ; 8 : 1 1 ;

9 : 1 6 , 1 8 , 2 5 ;

1 0 : 3 , 2 0 ;

1 1 : 2 4 ; 1 2 : 3 , 6 ;

1 3 : 3 ; 1 4 : 3 , 1 3 , 1 9 , 2 3

D E N T A L [ 1 ] 1 : 9

D e n t a l [ 1 ]

1 4 : 2 4

d e n t a l [ 1 ] 7 : 1 7

d e n t i s t [ 5 ]

7 : 1 1 ; 1 0 : 4 , 6 ;

1 2 : 4 , 7

d e s p i t e [ 1 ]

1 4 : 2 4

d i f f e r e n c e [ 3 ]

1 0 : 1 7 ; 1 2 : 2 2 , 2 4

D I R E C T [ 6 ]

3 : 9 ; 4 : 4 ; 6 : 2 1 ;

9 : 8 ; 1 1 : 1 6 ;

1 3 : 1 9

D I S T R I C T [ 2 ]

1 : 5 , 9

D i s t r i c t [ 2 ]

1 7 : 3 , 1 7

d o e s n ' t [ 1 ]

1 5 : 1 6

d o i n g [ 2 ] 6 : 2 ;

9 : 2 1

d o u b l e - c h e c k

[ 1 ] 1 4 : 2 0

d o w n [ 4 ] 5 : 1 3 ;

6 : 1 4 ; 9 : 2 1 , 2 2

d u l y [ 3 ] 6 : 2 0 ;

9 : 6 ; 1 1 : 1 4

- E - e - f i l e [ 2 ] 1 6 : 7 , 8

e a c h [ 3 ] 1 4 : 8 , 1 4 ; 1 5 : 9

e i t h e r [ 1 ]

1 5 : 2 5

e l e c t r o n i c a l l y

[ 1 ] 1 6 : 1 0

e l s e [ 1 ] 1 6 : 1 3

e m p l o y e d [ 1 ]

1 0 : 2

e m p l o y e e [ 1 ]

7 : 9

e m p l o y e r [ 3 ]

7 : 9 ; 9 : 2 0 ;

1 0 : 1

E n g e l h a r t [ 1 ]

1 : 2 0

e v e r y [ 1 ] 1 5 : 2 4

e v i d e n c e [ 2 ]

1 7 : 5 , 1 0

E X A M I N A T I O N

[ 4 ] 6 : 2 1 ; 9 : 8 ;

1 1 : 1 6 ; 1 3 : 1 9

e x h i b i t s [ 2 ]

3 : 2 1 ; 1 7 : 9

E x p i r a t i o n [ 1 ]

1 7 : 1 7

- F -

f a i l e d [ 1 ]

1 4 : 2 4

f a m i l i a r [ 2 ]

7 : 4 ; 1 1 : 2 4

f a m i l y [ 1 ]

1 3 : 2 5

f a v o r [ 2 ]

1 4 : 1 3 ; 1 5 : 1

f e e s [ 3 ] 1 3 : 1 6 ;

1 4 : 1 2 ; 1 5 : 3

F i n a l [ 1 ] 5 : 8

f i n a l [ 7 ] 5 : 6 ;

1 5 : 2 2 , 2 3 , 2 4 , 2 5 ; 1 6 : 5

f i n d [ 3 ] 1 4 : 1 9 , 2 2 ; 1 5 : 1

F I N D I N G S [ 1 ]

1 4 : 2 1

F i n d i n g s [ 1 ]

3 : 1 7

f i n e [ 1 ] 9 : 2 2

f i r s t [ 2 ] 6 : 8 , 2 0

f i v e [ 1 ] 1 4 : 4

f o l l o w i n g [ 1 ]

1 : 1 8
f o l l o w s [ 3 ]

6 : 2 0 ; 9 : 7 ;

1 1 : 1 5

f o r e g o i n g [ 1 ]

1 7 : 4

F o r t [ 1 ] 1 3 : 2 3

F o u r [ 1 ] 1 5 : 1 0

f r o m [ 1 ] 1 5 : 5

f u l l [ 2 ] 9 : 1 0 ;

1 1 : 1 8

f u r t h e r [ 3 ]

1 4 : 1 5 ; 1 7 : 8

- G - G A R R Y [ 1 ] 1 : 8

G a r r y [ 2 ] 5 : 4 ;

1 4 : 2 3

g e n t l e m e n [ 3 ]

5 : 2 0 , 2 3 ; 1 6 : 1 6

G I L L [ 2 4 ] 2 : 4 ;

5 : 7 , 1 0 , 1 6 , 2 1 ;

6 : 6 , 9 , 1 8 , 2 2 ;

8 : 2 2 ; 9 : 1 , 9 , 2 3 ; 1 1 : 6 , 1 0 , 1 7 ; 1 3 : 1 4 , 2 0 ;

1 4 : 1 7 ; 1 5 : 1 9 ;

1 6 : 6 , 1 1 , 1 4 , 1 7

G i l l [ 1 6 ] 2 : 2 ;

3 : 1 0 , 1 2 , 1 3 , 1 4 , 1 5 ; 4 : 5 , 6 , 7 , 8 , 1 0 ; 5 : 1 6 ;

6 : 5 ; 9 : 2 4 ;

1 3 : 2 0 ; 1 5 : 4

g o i n g [ 1 ] 6 : 9

G o o d [ 1 ] 1 6 : 1 6

g o o d [ 6 ] 6 : 5 ;

7 : 1 3 ; 8 : 2 4 ;

1 1 : 8 ; 1 4 : 1 8 ;

1 6 : 1 5

g r a n t [ 3 ] 8 : 9 ;

1 0 : 1 9 ; 1 3 : 2

g r e a t [ 1 ] 1 6 : 9

G R E G O R Y [ 2 ]

1 : 5 ; 6 : 1 9

G r e g o r y [ 5 ]

3 : 1 0 ; 4 : 9 ;

5 : 1 7 ; 6 : 1 0 , 2 5

g r s l e g a l . c o m

[ 1 ] 2 : 3

g u e s s i n g [ 1 ]

5 : 6

- H - H - A - M [ 1 ] 6 : 2 5

H A N D [ 1 ] 1 7 : 1 4

h a n d [ 1 ] 6 : 1

h a r d [ 1 ] 1 6 : 1 8

H A R R I S [ 2 ]

1 : 7 ; 1 7 : 2

H a r r i s [ 4 ]

1 : 2 1 ; 1 3 : 2 3 ;

1 7 : 3 , 1 8

h a v i n g [ 4 ]

6 : 2 0 ; 9 : 6 ;

1 1 : 1 4 ; 1 4 : 2 4

h e a r d [ 1 ] 1 : 1 8

h e l d [ 1 ] 1 : 2 0

h e l p [ 1 ] 1 0 : 2 5

h e l p f u l [ 1 ]

1 6 : 1

h e r e [ 4 ] 5 : 5 , 2 0 ; 1 5 : 2 3 ;

1 6 : 2

h e r e b y [ 1 ]

1 7 : 4

h i r e [ 8 ] 8 : 1 4 , 1 6 , 2 0 ; 1 0 : 2 3 , 2 5 ; 1 1 : 4 ;

1 3 : 6 , 9

h i r e d [ 1 ] 1 4 : 1

h i r i n g [ 1 ]

1 3 : 1 1

H o n o r [ 1 ]

1 6 : 1 7

H o n o r a b l e [ 1 ]

1 : 1 9

H o u s t o n [ 2 ]

1 : 2 0 ; 1 7 : 1 8

- I -

I ' l l [ 2 ] 8 : 2 2 ;

1 6 : 1 2

I ' v e [ 1 ] 1 3 : 2 1

i n c l u d e [ 1 ]

1 5 : 1 6

i n c l u d e d [ 1 ]

1 7 : 6

i n c l u d i n g [ 1 ]

1 5 : 2

i n c u r [ 1 ] 1 4 : 8

i n c u r r e d [ 1 ]

1 2 : 1 7

I N D E X [ 3 ] 3 : 3 ;

4 : 3 ; 1 8 : 1

I n d e x [ 3 ] 3 : 6 , 7 , 2 0

i n s t r u c t i o n [ 2 ]

9 : 3 ; 1 1 : 1 2

i n s u f f i c i e n t [ 1 ]

8 : 4

i n t e r e s t [ 5 ]

1 5 : 3 , 5 , 1 3 , 1 4 , 1 6

i n t e r l o c u t o r y

[ 2 ] 1 6 : 4 , 5

i n t o [ 1 ] 1 7 : 1 0

I t ' s [ 2 ] 7 : 2 1 ;

8 : 8

i t ' s [ 5 ] 1 5 : 1 4 , 1 7 , 2 2 ; 1 6 : 4 , 5

- J - J O H N [ 2 ] 1 : 5 ;

9 : 5

J o h n [ 5 ] 3 : 1 1 ;

4 : 8 ; 5 : 1 8 ; 9 : 1 , 1 2

J u d g e [ 1 3 ]

1 : 2 0 ; 5 : 7 , 2 1 ;

6 : 1 8 ; 8 : 2 2 ;

9 : 2 3 ; 1 1 : 6 ;

1 3 : 1 5 ; 1 4 : 1 7 ;

1 5 : 1 9 ; 1 6 : 6 , 1 1 , 1 4

j u d g m e n t [ 2 2 ]

5 : 6 ; 8 : 1 0 , 1 3 , 1 7 , 2 0 ; 1 0 : 2 0 , 2 2 ; 1 1 : 1 , 4 ;

1 3 : 3 , 7 , 9 , 1 2 ;

1 4 : 2 , 1 1 ; 1 5 : 6 , 8 , 1 5 , 2 0 , 2 3 , 2 5 ; 1 6 : 3

j u d g m e n t s [ 1 ]

1 4 : 4

J U D I C I A L [ 1 ]

1 : 9

J U N E [ 1 ] 3 : 4

J u n e [ 1 ] 1 : 1 7

- K - k n o w [ 8 ] 7 : 2 0 ;

8 : 3 ; 9 : 1 6 ;

1 0 : 8 , 1 3 ;

1 2 : 1 1 , 1 6 , 1 9

- L -

l a n g u a g e [ 4 ]

1 5 : 1 1 , 1 3 , 2 1 ;

1 6 : 3

L a s t [ 1 ] 9 : 1 2

l a s t [ 3 ] 6 : 2 4 ;

9 : 1 1 ; 1 1 : 1 9

L a u g h i n g [ 2 ]

5 : 2 4 ; 1 6 : 1 9

l a w s [ 2 ] 1 3 : 2 4 , 2 5

L i b e r t y [ 1 ]

1 3 : 2 3

l i c e n s e d [ 2 ]

7 : 1 1 ; 1 3 : 2 1

L I F E T I M E [ 1 ]

1 : 9

L i f e t i m e [ 1 ]

1 4 : 2 3

l i k e [ 1 ] 1 3 : 1 5

l i s t e n [ 1 ] 6 : 1 1

l i t t l e [ 1 ] 9 : 2 2

l o o k i n g [ 1 ]

1 6 : 3

l o o k s [ 1 ] 1 5 : 1 1

L o o p [ 1 ] 2 : 4

l o u d [ 4 ] 5 : 1 3 ;

6 : 1 3 ; 9 : 4 ;

1 1 : 1 2

l u c k [ 1 ] 1 6 : 1 6

- M - M a c h i n e [ 1 ]

1 : 2 3
m a k e [ 5 ] 1 5 : 7 , 1 4 , 2 2 ; 1 6 : 1 , 1 2

m a r k [ 2 ] 1 6 : 4 , 5

m e a n [ 1 ] 1 5 : 2 4

m e a n i n g [ 1 ]

5 : 8

M e y e r [ 1 ]

1 7 : 1 2

M i k e [ 1 ] 1 : 2 0

m o n e y [ 3 ]

1 0 : 1 3 , 1 4 ; 1 2 : 6

M O T I O N [ 3 ]

1 : 1 4 ; 3 : 2 ; 4 : 2

M U L L E R [ 1 ]

2 : 4

m y s e l f [ 1 ]

1 3 : 1 5

- N - n a m e [ 9 ] 5 : 1 6 ;

6 : 2 3 , 2 4 ; 9 : 1 0 , 1 1 , 1 2 ; 1 1 : 1 8 , 1 9 ; 1 3 : 2 0

n e c e s s a r y [ 6 ]

8 : 1 9 ; 1 1 : 3 ;

1 3 : 1 1 ; 1 4 : 7 , 1 1 , 1 4

n e d g i l l 3 [ 1 ]

2 : 3

n e e d [ 1 ] 9 : 2 2

n e x t [ 2 ] 8 : 2 3 , 2 5

N i c e [ 2 ] 5 : 1 2 ;

1 1 : 1 2

n i c e [ 1 ] 6 : 1 3

n o t e [ 1 ] 1 6 : 1 3

N u m b e r [ 4 ]

7 : 2 ; 9 : 1 3 ;

1 1 : 2 1 ; 1 5 : 1 0

n u m b e r [ 2 ]

6 : 1 0 ; 1 5 : 8

n u m b e r e d [ 2 ]

1 : 1 9 ; 1 7 : 6

- O -

O a t h [ 1 ] 6 : 3

o c c u r r e d [ 1 ]

1 7 : 7

o f f e r [ 1 ] 1 7 : 9

o f f e r e d [ 1 ]

1 7 : 1 0

o f f i c e [ 1 ]

1 0 : 1 0

O F F I C I A L [ 1 ]

1 7 : 1 4

O f f i c i a l [ 2 ]

1 7 : 3 , 1 7

O k a y [ 7 ] 6 : 1 5 , 1 6 ; 7 : 2 2 , 2 5 ;

8 : 2 4 ; 1 3 : 1 7 ;

1 4 : 1 5

o k a y [ 1 ] 1 5 : 1 2

O n l y [ 1 ] 6 : 1 2

o p e n [ 1 ] 1 7 : 7

o t h e r [ 3 ]

1 3 : 1 4 , 2 3 ; 1 7 : 5

o v e r [ 1 ] 1 3 : 2 2

- P - P - H - A - M [ 2 ]

5 : 4 , 1 8

P . C . [ 1 ] 1 7 : 1 2

P A G E [ 1 ] 3 : 4

p a i d [ 7 ] 1 0 : 6 , 1 4 , 1 5 ; 1 2 : 1 7 , 2 0 ; 1 4 : 3 ;

1 7 : 1 2

p a r t [ 1 ] 1 6 : 1 8

p a r t i a l [ 1 ]

1 5 : 2 5

p a r t i c u l a r [ 1 ]

1 4 : 9

p a r t i e s [ 3 ]

5 : 9 , 1 1 ; 1 7 : 6

p a s s [ 2 ] 8 : 2 2 ;

1 1 : 7

p a t i e n t [ 1 ]

7 : 1 9

P a u l [ 1 ] 6 : 2 5

p a y i n g [ 1 ] 8 : 4

p e r c e n t [ 5 ]

7 : 2 1 ; 1 0 : 9 ;

1 2 : 1 5 ; 1 5 : 5 , 1 5

P e r f e c t [ 1 ]

1 6 : 1 1

P H A M [ 2 ] 1 : 5 ;

6 : 1 9

P h a m [ 8 ] 3 : 1 0 ;

4 : 9 ; 5 : 3 , 1 8 ;

6 : 1 0 , 1 1 , 2 3 , 2 5

p l a c e s [ 2 ] 9 : 3 ;

1 3 : 1 7

P l a i n t i f f [ 4 ]

6 : 9 ; 7 : 1 ; 9 : 1 3 ;

1 1 : 2 1

P L A I N T I F F S [ 3 ]

2 : 6 ; 3 : 9 ;

1 4 : 1 6

P l a i n t i f f s [ 1 0 ]

1 : 6 ; 3 : 1 6 ;

5 : 1 7 ; 1 4 : 2 , 5 , 6 , 9 , 1 3 ; 1 5 : 1 , 9

P l e a s e [ 2 ]

6 : 1 7 ; 9 : 2

p l e a s e [ 6 ]

5 : 2 5 ; 6 : 1 3 ;

9 : 3 , 1 1 ; 1 1 : 1 9 ;

1 3 : 1 8

p o r t i o n s [ 1 ]

1 7 : 5

p o s t j u d g m e n t

[ 4 ] 1 5 : 5 , 1 3 , 1 6 , 1 7

p r a c t i c e [ 4 ]

1 0 : 4 ; 1 2 : 4 ;

1 3 : 2 2 , 2 4

p r a c t i c i n g [ 1 ]

1 3 : 2 2

p r e j u d g m e n t

[ 1 ] 1 5 : 3

p r e p a r a t i o n [ 1 ]

1 7 : 1 1

P r e s i d i n g [ 1 ]

1 : 2 0

p r e v i o u s l y [ 2 ]

9 : 6 ; 1 1 : 1 4

p r i m a r i l y [ 1 ]

1 3 : 2 4

p r o c e e d [ 1 ]

6 : 1 7

P r o c e e d i n g s

[ 2 ] 1 : 2 2 ; 3 : 8

p r o c e e d i n g s [ 3 ]

1 : 1 8 ; 1 7 : 5 , 9

p r o c e s s [ 1 ]

1 4 : 2 5

p r o d u c t i o n [ 4 ]

7 : 2 1 ; 1 0 : 9 ;

1 2 : 1 5 , 1 6

p r o o f [ 1 ] 1 7 : 1 0

p r o p o s e d [ 1 ]

1 5 : 8

p r o v e - u p [ 1 ]

5 : 6

p r o v i d e [ 1 ]

7 : 1 7

p u r s u e [ 1 0 ]

8 : 1 3 , 2 0 ;

1 0 : 2 2 , 2 5 ;

1 1 : 4 ; 1 3 : 6 , 9 , 1 2 ; 1 4 : 2 , 4

p u r s u i n g [ 1 ]

8 : 1 6

- Q - q u e s t i o n [ 1 ]

6 : 1 2

q u e s t i o n s [ 2 ]

6 : 1 2 ; 1 3 : 1 4

- R -

r a i s e [ 1 ] 6 : 1

r a t e [ 2 ] 1 5 : 5 , 1 5

R A Y M O N D [ 2 ]

1 : 6 ; 1 1 : 1 3

R a y m o n d [ 5 ]

3 : 1 3 ; 4 : 5 ;

5 : 1 8 ; 1 1 : 1 0 , 2 0

r e a s o n a b l e [ 1 ]

1 4 : 1 4

R e c e s s e d [ 1 ]

1 6 : 2 0

R E C O R D [ 1 ]

1 : 1

R e c o r d [ 3 ]

1 7 : 6 , 8 , 1 1

r e c o r d [ 2 ] 5 : 2 ;

6 : 2 3
r e f l e c t s [ 1 ]

1 7 : 9

r e l a t i o n s h i p [ 4 ]

7 : 7 ; 9 : 1 8 , 2 4 ;

1 2 : 3

r e m e m b e r [ 1 ]

9 : 3

r e p o r t e d [ 2 ]

1 : 2 2 ; 1 7 : 7

R e p o r t e r [ 3 ]

1 : 2 3 ; 1 7 : 3 , 1 7

r e p o r t e r [ 2 ]

9 : 1 1 ; 1 1 : 1 9

R E P O R T E R ' S

[ 1 ] 1 : 1

R e p o r t e r ' s [ 4 ]

3 : 1 9 ; 1 7 : 6 , 8 , 1 1

r e p r e s e n t [ 3 ]

5 : 1 5 , 1 7 ; 8 : 1 6

r e q u e s t e d [ 2 ]

1 5 : 3 ; 1 7 : 5

r e s o l v e [ 1 ] 5 : 9

R E S T [ 1 ] 1 4 : 1 6

R e s t [ 1 ] 3 : 1 6

r e s t [ 2 ] 1 4 : 1 7 ;

1 5 : 1 1

R E V A C K [ 1 ]

2 : 4

r i g h t [ 1 5 ]

5 : 1 2 , 1 9 , 2 2 , 2 5 ; 6 : 1 , 4 , 1 1 ;

9 : 2 ; 1 1 : 1 1 , 1 2 ;

1 4 : 1 8 , 2 2 ;

1 5 : 2 5 ; 1 6 : 1 2 , 1 5

R u i z [ 3 ] 1 7 : 3 , 1 6

- S - S A M A A N [ 1 ]

2 : 4

s a m e [ 1 ] 1 1 : 1 1

s a y i n g [ 1 ] 6 : 1 4

s c o u r [ 1 ] 1 6 : 2

S e p t e m b e r [ 1 ]

1 7 : 1 5

s e r v e d [ 1 ]

1 4 : 2 5

s e r v i c e [ 1 ]

7 : 1 7

S h o r t h a n d [ 2 ]

1 : 2 3 , 2 4

s h o u l d [ 3 ]

5 : 2 3 ; 1 0 : 1 5 ;

1 2 : 1 9

s i g n [ 1 ] 1 6 : 1 0

S l o w [ 1 ] 9 : 2 1

s l o w [ 4 ] 5 : 1 2 ;

6 : 1 4 ; 9 : 4 , 2 2

s o m e t h i n g [ 1 ]

1 4 : 2 0

S o r r y [ 1 ] 9 : 2 3

S o u t h [ 1 ] 2 : 4

s p e a k [ 1 ] 9 : 3

s p e l l [ 2 ] 6 : 2 4 ;

9 : 1 1

s p e l l i n g [ 1 ]

1 1 : 1 9

s p e n t [ 1 ]

1 4 : 1 0

s t a n d i n g [ 1 ]

7 : 1 3

s t a r t s [ 1 ]

1 5 : 1 7

S T A T E [ 1 ] 1 7 : 1

S t a t e [ 3 ] 2 : 3 ;

7 : 1 3 ; 1 7 : 4

s t a t e [ 5 ] 6 : 2 3 ;

9 : 1 0 ; 1 1 : 1 8 ;

1 2 : 1 3 ; 1 3 : 2 1

s t a t e d [ 1 ] 1 5 : 2

S t e r n [ 1 ] 1 7 : 1 2

s u c h [ 1 ] 5 : 2 3

S u i t e [ 1 ] 2 : 4

S u r e [ 1 ] 8 : 2 4

s w e a r [ 1 ] 6 : 1

S w i t c h [ 1 ]

1 3 : 1 7

s w o r n [ 3 ]

6 : 2 0 ; 9 : 6 ;

1 1 : 1 4

- T -

t a k e [ 2 ] 6 : 1 4 ;

1 5 : 8

t a k i n g [ 1 ] 5 : 1 3

t a x a b l e [ 2 ]

1 5 : 4 , 1 0

T e l e c o p i e r [ 1 ]

2 : 6

T e l e p h o n e [ 1 ]

2 : 5

t e l l [ 4 ] 5 : 1 4 ;

8 : 6 ; 1 2 : 2 , 2 4

t e n d e r e d [ 1 ]

1 7 : 9

t e r m s [ 4 ] 7 : 2 0 ;

1 0 : 8 ; 1 2 : 1 1 , 1 4

t e s t i f i e d [ 3 ]

6 : 2 0 ; 9 : 6 ;

1 1 : 1 4

T E X A S [ 2 ] 1 : 7 ;

1 7 : 1

T e x a s [ 7 ] 1 : 2 1 ;

2 : 5 ; 7 : 1 4 ;

1 3 : 2 1 ; 1 7 : 4 , 1 6 , 1 8

T h a n k [ 2 ]

6 : 1 8 ; 1 6 : 1 7

T h a t ' s [ 4 ]

5 : 1 7 , 2 1 ;

1 4 : 1 7 ; 1 6 : 1 4

T h e n [ 1 ] 1 4 : 1 8

t h e n [ 1 ] 1 5 : 2 1

t h e r e [ 3 ]

1 2 : 2 2 ; 1 5 : 2 1 ;

1 6 : 1 3

t h e s e [ 5 ] 5 : 1 9 ;

1 4 : 1 , 5 , 6 , 8

t h e y [ 1 ] 1 6 : 2

T h e y ' r e [ 1 ] 6 : 1

t h e y ' r e [ 1 ]

5 : 2 2

t h i n g s [ 1 ] 5 : 2 3

t h i n k [ 1 ] 1 1 : 3

T h i s [ 1 ] 5 : 3

t h i s [ 2 7 ] 8 : 9 , 1 1 , 1 3 , 1 7 , 2 0 , 2 2 ; 9 : 1 6 , 1 9 , 2 5 ; 1 0 : 3 , 6 , 1 9 , 2 5 ; 1 1 : 6 , 7 , 2 5 ; 1 3 : 3 ;

1 4 : 3 , 4 , 1 0 , 1 1 , 1 3 ; 1 5 : 7 ;

1 7 : 6 , 8 , 1 1 , 1 4

t h r e e [ 6 ] 5 : 2 0 ;

6 : 4 ; 1 4 : 1 , 5 , 6 ;

1 5 : 9

t i m e [ 2 ] 1 1 : 6 ;

1 4 : 1 0

t i t l e [ 1 ] 1 5 : 2 2

t o d a y [ 1 ] 5 : 2 0

t o t a l [ 2 ] 1 5 : 1 5 ;

1 7 : 1 1

T r a n s c r i p t i o n

[ 1 ] 1 : 2 4

t r a n s c r i p t i o n

[ 1 ] 1 7 : 5

t r u e [ 1 ] 1 7 : 4

t r u l y [ 1 ] 1 7 : 9

- U - u n d e r [ 1 ] 8 : 1

u n t i l [ 1 ] 1 5 : 6

- V - v e r b a l [ 1 ] 7 : 2 2

v e r s u s [ 1 ] 5 : 4

V e r y [ 5 ] 6 : 5 ;

8 : 2 4 ; 1 1 : 8 ;

1 4 : 1 8 ; 1 6 : 1 5

v e r y [ 1 ] 1 6 : 1

V O L U M E [ 6 ]

1 : 2 ; 3 : 1 ; 4 : 1

v o l u m e [ 1 ]

1 7 : 6

- W - W - A - L - D - R - O - P

[ 1 ] 5 : 5

W A L D R O P [ 1 ]

1 : 8

W a l d r o p [ 3 ]

5 : 4 ; 1 3 : 3 ;

1 4 : 2 3

W a l d r o p s [ 1 ]

7 : 1 0

w a n t [ 1 ] 1 6 : 6

W e ' r e [ 1 ] 5 : 5

w e l l [ 2 ] 1 5 : 4 , 2 4
w e r e [ 3 ] 8 : 1 ;

1 0 : 2 ; 1 7 : 7

W e s t [ 1 ] 2 : 4

w h i c h [ 2 ] 1 6 : 2 ;

1 7 : 7

w i l l [ 5 ] 1 1 : 6 ;

1 4 : 1 9 ; 1 6 : 6 , 1 1 ; 1 7 : 1 2

W i s e [ 1 ] 1 7 : 1 2

w i s h [ 3 ] 6 : 7 ;

8 : 2 5 ; 1 1 : 8

W I T N E S S [ 3 ]

4 : 3 ; 6 : 1 6 ;

1 7 : 1 4

W i t n e s s [ 1 ]

3 : 7

w i t n e s s [ 4 ]

8 : 2 2 , 2 3 ; 1 1 : 7

W I T N E S S E S [ 2 ]

3 : 9 ; 4 : 4

w i t n e s s e s [ 1 ]

6 : 3

W O R D [ 1 ] 1 8 : 1

W o r d [ 1 ] 3 : 2 0

w o r d [ 2 ]

1 5 : 1 7 , 2 3

W o u l d [ 1 ] 5 : 2 5

w o u l d [ 1 0 ] 5 : 8 , 1 4 ; 1 2 : 6 ;

1 3 : 1 5 ; 1 5 : 7 , 1 0 , 2 2 , 2 3 ;

1 6 : 8 , 9

w r i t e [ 1 ] 1 5 : 9

w r i t i n g [ 2 ]

1 2 : 9 ; 1 7 : 5

w r i t t e n [ 3 ]

7 : 2 2 , 2 4 ; 1 0 : 1 1

- Y - y e a r [ 1 ] 1 5 : 1 5

y e a r s [ 1 ] 1 3 : 2 2

Y o u ' r e [ 1 ] 9 : 2 1

y o u ' r e [ 1 ] 6 : 1 4

Y o u r [ 1 ] 1 6 : 1 7

y o u r [ 1 1 ] 6 : 1 , 2 3 , 2 4 ; 7 : 7 ;

9 : 1 0 , 1 1 , 1 8 , 2 4 ; 1 1 : 1 8 , 1 9 ;

1 2 : 2

- Z - Z i m m e r m a n [ 1 ]

1 7 : 1 2
8 

Office of Harris County District Clerk - Chris Daniel Page 1 of 3

PHAM, GREGORY vs. W GARRY WALDROP DDS INC

(D/B/A LIFETIME DENTAL CAR

Cause: 201521720 CDI: 7 Court: 1 5 1

HCDistrictclerk.com 11/10/2015

COST STATMENTS

No Cost Statments found.

TRANSFERS

No Transfers found.

NOTICES

No Notices found.

SUMMARY

CASE DETAILS COURT DETAILS

Court up'

Address 201 CAROLINE (Floor. 1 1)

HOUSTON. TX 77002

Phone;7133686222

Kile Date 4/15/2015

Case (Cause) Location Civil Intake 1st Floor

Case (Cause) Status Case On Appeal

- Civil

Case (Cause) Type HOMEOWNERS ASSOCIATION untPM»Hf«T

N.\,/lÿist Selling Date N A

Cr.T». CM

Judgment For DEFAULT JUDGMENT SIGNED ''vr-- • "••• '

'

'

Judgment Date 7/1/2015

Jury Fee Paid Date N/A

w*

APPEALS

Action Type* Action

Assigned to 14th Court of Appeals 9/1/2015 $0.00

9/1/2015

Court Assignment

$0.00

Notice of Appeal Has Been Filed S 0,00

Notice of Appeal Has Been Filed Appeal Final Judgment

Mandate Issued on Appeal

----

9/22/2015 S 0.00

00«»Av«W<yÿM*lÿ

Transcript Completed 9/30/2015 $37.00

A,;/;;'

Notice of Appeal Given

McMMonWv..

9/1/2015

.A.-..

9/1/20)5 $0,00

Transcript Action

.

POST TRIAL WRITS

Description

Writ of Execution 8/3/2015 8/3/2015 8/10/2015 11/9/2015

ABSTRACTS

Description

File Assigned

i

7/2/2015

m

http://www.hcdistrictcIerk.com/edocs/public/CaseDetailsPrinting.aspx?Get=80-i-VR0ti6Iqkyr5Io7h9A5... I i/10/2015
9 

Office of Harris County District Clerk - Chris Daniel Page 2 of 3

Abstract Requested

File Assigned

Abstract Requested

File Assigned

• '•

---------

•

"•f

• •'•••

Abstract Requested

Abstract Picked UO

Abstract Picked UO

7/2/2015

7/2/2015

7/2/2015

7/2/20 IS

">'/S-Ov.

7/2/2015

7/29/2015

7/29/2015

'

7/29/2015

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ACTIVE PARTIES

No active parties found.

INACTIVE PARTIES

Name Post Attorney

Jdgm

Type

Gll.L, NED 111

.••>. -

PHAM, GREGORY PLAINTIFF - CIVIL •>. VAWSrMyV* r.-s.ss.yy.rs.r/sv.

W GAR.RY DEFENDANT -CIVIL

WALDROP DDS INC

(D/B/A LIFETIME

DENTAL,CARE)

970 SOUTH FRY ROAD, KATY, TX 77450

GJ.CL» NED III

.... ....

DAO, RAYMOND PLAINTIFF - CIVIL

MA. JOHN PLAINTIFF -CIVIL GILL, NED IU

.r.W.,AWy,r.y,,.,

JHDGMENT/EVENTS

Date Description Order Post Pgs Volume Filing

Signed Jdgm /Page Attorney

7/1/2015

Person

Filing

7/1/2015 DEFAULT

/.v.-.v.v.v.vv.x'r«vcw

JUDGMENT

rrrrrrrr •r'r‘rr/r

SIGNED m

DEFENDANT COSTS

**«*»ÿ»

7/1/2015 0

4/15/2015 ORIGINAL PETITION GILL, NED III

GILL, NED Ilf

GILL., NED III

PHAM, GREGORY

DAO, RAYMOND

MA,JOHN

0

4/15/2015 ORJGINAI PETITION 0

4/15/2015 ORIGINAL PETITION 0

- -

I

SETTINGS

Date Court Post Docket Type Reason

Jdgm

Results Comments Requesting

Party

DEFAULT - MOTION FOR Granted SEE O/S 7-1-15 GILL, NED III

(TRCP 239)

I

6/29/2015 151 Law Day Docket

09:00 AMwwlv/w/'yy.Lv.-w-kvwjl/M'y

SERVICES

Type Status Instrument Person Requested Issued Served Returned Received Tracking Deliver

To

CITATION 4/15/2015 4/15/2015 4/21/2015 73121918

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10 

Office of Harris County District Clerk - Chris Daniel Page 3 of 3

SERVICE ORIGINAL

RETURN/EXECUTED PETITION

CIV AGCYC1VILIAN

SERVICE

AGENCY

s>' s •• > •• ••

EXECUTION SERVICE WRITOF 8/3/20IS 8/10/2015 11/9/201S 11/9/2015 *

RETURN/EXECUTED EXECUTION

73155065 ATTORNEY

PICK-UP

DOCUMENTS

Number Document MPbst Date fill Pgs

Fourteenth court of appeals(Abatement Order)

Fourteenth court of appeals(Correspondence)

W?ww: i

67280496 09/22/2015 7

pMMM

66997309 09/04/2015 I

66862676 Notice of Appeal 09/01/2015 2

Local Rule Notice of and Assignment of Related Case in Appeals

Letter to Clerk

>66862677 09/01/2015 I

66862678 09/01/2015 2

66862679 Letter to Reporter 09/01/2015 r

66457457 Request for Civil/Family Post Judgment Writs 08/03/2015 I

66075484 Request for Abstract of Judgment 07/02/2015 J

‘&¥S&t5$lF?f999XXttXXX‘/rAY/‘y/'?'‘‘i

66075485 Request for Abstract of Judgrat8»\, 07/02/2015 1

'/‘».VPP.V.v

66075486 Request for Abstract of Judgment 07/02/2015 $

66049904 DEFAULT JUDGMEN T SIGNED 07/01/2015 2

DEFENDANT COSTS Q7/0I/2015

ty£ÿ//AttYY//YrXfoiXXrXryXX/5i‘rt:r‘X‘ft‘rirYrY/iS'f‘r‘i

66009060 Proposed Final Judgment 06/29/2015 2

05/19/2015#

»0d6i

05/19/2015 3

65485098 Motion for Default Judgment

•s 65485099 Nonmilitary Affidavit

>65485100 PlaintifTs’ Certificate of Last Known Mailing Address 05/19/2015 1

WMmSS9SWQttoM&0Witftmt9i64&i4iMSWG$fC4M<&

65485871 Notice of Hearing

..... ,

----,•;• • •

Citation

05/19/2015 1

65141847 ..ÿ 04/21/2015

__________ .... ...

_________ _ .......

_

________... ... _..., .

65034468 Plaintiffs Original Peilition 04/15/2015 6

:

Civil Case Information Sheet : v

Civil Process Request

>65034470 04/15/2015 2

>65034469 04/15/2015 2

Civil Process Request

Civil Process Pick-Up Form

65G4I353 04/15/2015 2

65176921 04/15/2015 . I.

!

!

I

http://www.hcdistrictclerk.com/edocs/public/CaseDetailsPrinting.aspx?Get=80+VR0ti6Iqkyr5Io7h9A5... 11/10/2015
23 

9j"t.'2015 5:0131PM

Cims Daniel - Distnci Clerk Harris County

Envolopo No. 6753 110

By: Phyllis Washington

filed: 9.'1.'2015 5:01 31 PM

NO. 2015-21720

GREGORY HIAM, JOHNMA

AND RAYMOND DAO

§ IN THE DISTRICT COURT OF

S

$

V. § HARRIS COUNTY, TEXAS

§

W,GARRY WALDROP, UDS,INC.

(l/ti/a LIFETIME DENTAL CARE

§

§ 151ST JUDICIAL DISTRICT

NOTICE OF APPEAL

Pursuant to Texas Rules of Appellate Procedure 25.1 and 26.1(c). W. Garry Waldrop.

DDS. Inc. d/b/a Lifetime Denial Care (“Defendant" or “Appellant'’) files this nolice of appeal lo

ihe First or Fourteenth Couri of Appeals, Defendant desires to appeal from the judgment

rendered against ll by (his court on luly 1, 2015.

Appellant is a party affected by the trial court’s judgment. Appellant did not participate,

either in person or through counsel, in the hearing resulting in the judgment complained of. In

addition. Appellant did not timely file a postjudgmenf motion, a request for findings of fact and

conclusions of law or a Rule 26.1(a) notice of appeal.

Respectfully submitted,

By;.

Jennifer

A/ Jennifer

S. Wilson

S. Wilson _

Slate Bar No. 21697500

3040 Post Oak Blvd., Suite 1300

Houston, Texas 77056

Telephone: (713) 212-2674 (Direct)

Telephone: (713) 552-1234 (Main)

Facsimile: (713) 212-2790 (Direct Facsimile)

1
24 

CERTIFICATE OF SERVICE

Ihereby certify that on September 1, 2015, a copy of this Notice of Appeal has been

served on counsel for Plaintiffs as follows:

Mr. NedGill,III

Gill, Revack, Samaan &Muller, LLP

6575 West Loop South, Suite 600

Bellaite, Texas 77401

Via CertifiedMailNo. 9314 8699 0430 0016 2073 74

/s/Jennifer S. Wilson

Jennifer S. Wilson

2
25 

9/1/2015 5:01:31 PM

Chris Daniel - District Clerk

Harris County

Envelope No: 6753110

By: WASHINGTON, PHYLLIS

Filed: 9/1/2015 5:01:31 PM

Local Rule Notice of and Assignment of Related Case in Appeals

(sample; file as part of notice of appeal]

As required by the Local Rules Relating to Assignment of Related

Cases to and Transfers of Related Cases between the First and Fourteenth

Courts of Appeals, I certify that the following related appeal or original

proceeding has been previously filed in either the First or Fourteenth Court of

Appeals:

;

W None =

Caption:

Trial court

case number:

Appellate court

case number:

i

[Signature of cerHfying attorney or pro se party]

Qg-P V SLO\'ST

[Date]

;

Note: See Local Rules for the definitions of ‘underlying case,” ‘‘related,” and

"previously filed.”

:

i

i

i

:

:
Page 30 TEXAS RULES OF APPELLATE PROCEDURE

Comment to 2002 change: Rule 29.5 is amended to

acknowledge that a trial court may be prohibited by law from

proceeding to trial during the pendency of an interlocutory

appeal, as for example by section 51.014(b) of the Texas Civil

Practice and Remedies Code.

Comment to 2008 change: Rule 29.5 is amended to be

consistent with Section 51.014(b) of the Civil Practice and

Remedies Code, as amended in 2003, staying all proceedings in

the trial court pending resolution of interlocutory appeals of class

certification orders, denials of summary judgments based on

assertions of immunity by governmental officers or employees,

and orders granting or denying a governmental unit’s plea to the

jurisdiction.

Rule 30. Restricted Appeals to Court

of Appeals in Civil Cases

A party who did not participate—either in person or

through counsel—in the hearing that resulted in the judgment

complained of and who did not timely file a postjudgment

motion or request for findings of fact and conclusions of law, or

a notice of appeal within the time permitted by Rule 26.1(a), may

file a notice of appeal within the time permitted by Rule 26.1(c).

Restricted appeals replace writ of error appeals to the court of

appeals. Statutes pertaining to writ of error appeals to the court

of appeals apply equally to restricted appeals.

Notes and Comments

Comment to 1997 change: This is former Rule 45. The

appeal by writ of error procedure is repealed. A procedure for an

appeal filed within 6 months — called a restricted appeal — is

substituted. This rule sets out who may take a restricted appeal.

Rules 25.1 and 26.1 set out the method of perfection and the time

for perfecting the appeal.

Rule 31. Appeals in Habeas Corpus,

Bail, and Extradition Proceedings

in Criminal Cases

31.1. Filing the Record; Submission

When written notice of appeal from a judgment or order in

a habeas corpus or bail proceeding is filed, the trial court clerk

must prepare and certify the clerk’s record and, if the appellant

requests, the court reporter must prepare and certify a reporter’s

record. The clerk must send the clerk’s record and the court

reporter must send the reporter’s record to the appellate court

within 15 days after the notice of appeal is filed. On reasonable

explanation, the appellate court may shorten or extend the time

to file the record. When the appellate court receives the record,

the court will — if it desires briefs — set the time for filing

briefs, and will set the appeal for submission.

31.2. Hearing

An appeal in a habeas corpus or bail proceeding will be

heard at the earliest practicable time. The applicant need not

personally appear, and the appeal will be heard and determined

upon the law and the facts shown by the record. The appellate

court will not review any incidental question that might have

arisen on the hearing of the application before the trial court. The

sole purpose of the appeal is to do substantial justice to the 

parties.

31.3. Orders on Appeal

The appellate court will render whatever judgment and

make whatever orders the law and the nature of the case require.

The court may make an appropriate order relating to costs,

whether allowing costs and fixing the amount, or allowing no

costs.

31.4. Stay of Mandate

(a) When Motion for Stay Required. Despite Rule 18 or

any other of these rules, in the following

circumstances a party who in good faith intends to

seek discretionary review must — within 15 days

after the court of appeals renders judgment — file

with the court of appeals clerk a motion for stay of

mandate, to which is appended the party's petition

for discretionary review showing reasons why the

Court of Criminal Appeals should review the

appellate court judgment:

(1) when a court of appeals affirms the judgment

of the trial court in an extradition matter and

thereby sanctions a defendant's extradition; or

(2) when a court of appeals reverses the trial

court’s judgment in a bail matter — including

bail pending appeal under Code of Criminal

Procedure article 44.04(g) — and thereby

grants or reduces the amount of bail.

(b) Determination of the Motion. The clerk must

promptly submit the motion and appendix to the

court of appeals, or to one or more judges as the

court deems appropriate, for immediate

consideration and determination.

(1) If the motion for stay is granted, the clerk will

file the petition for discretionary review and

process the case in accordance with Rule 68.7.

(2) If the motion is denied, the clerk will issue a

mandate in accordance with the court of

appeals' judgment.

30
Page 26 TEXAS RULES OF APPELLATE PROCEDURE

Rule 34.5(c)(2). The appeal must be dismissed if a

certification that shows the defendant has the right of

appeal has not been made part of the record under

these rules.

(e) Clerk's Duties. The trial court clerk must note on the

copies of the notice of appeal and the trial court’s

certification of the defendant’s right of appeal the

case number and the date when each was filed. The

clerk must then immediately send one copy of each

to the clerk of the appropriate court of appeals and,

if the defendant is the appellant, one copy of each to

the State's attorney.

(f) Amending the Notice or Certification. An amended

notice of appeal or trial court’s certification of the

defendant’s right of appeal correcting a defect or

omission in an earlier filed notice or certification,

including a defect in the notification of the

defendant’s appellate rights, may be filed in the

appellate court in accordance with Rule 37.1, or at

any time before the appealing party's brief is filed if

the court of appeals has not used Rule 37.1. The

amended notice or certification is subject to being

struck for cause on the motion of any party affected

by the amended notice or certification. After the

appealing party’s brief is filed, the notice or

certification may be amended only on leave of the

appellate court and on such terms as the court may

prescribe.

(g) Effect of Appeal. Once the record has been filed in

the appellate court, all further proceedings in the trial

court - except as provided otherwise by law or by

these rules - will be suspended until the trial court

receives the appellate-court mandate.

(h) (h) Advice of Right of Appeal. When a court enters a

judgment or other appealable order and the

defendant has a right of appeal, the court (orally or

in writing) shall advise the defendant of his right of

appeal and of the requirements for timely filing a

sufficient notice of appeal. 

Notes and Comments

Comment on 1997 change: This is former Rule 40. In civil

cases, the requirement of an appeal bond is repealed. Appeal is

perfected by filing a notice of appeal. A notice must be filed by

any party seeking to alter the trial court’s judgment. The

restricted appeal — formerly the appeal by writ of error — is

perfected by filing a notice of appeal in the trial court as in other

appeals. The contents of the notice of appeal is prescribed. The

notice of limitation of appeal is repealed. In criminal cases, the

rule is amended to apply to notices by the State, and to refer to

additional statutory requirements for the State’s notice. In felony

cases in which the defendant waived trial by jury, pleaded guilty

or nolo contendere, and received a punishment that did not

exceed what the defendant agreed to in a plea bargain, the rule is

amended to make clear that regardless of when the alleged error

occurred, an appeal must be based on a jurisdictional defect or a

written motion ruled on before trial, or be with the permission of

the trial court.

Comment to 2002 change: Rule 25.2, for criminal cases,

is amended. Subdivision 25.2(a) states the parties’ rights of

appeal that are established by Code of Criminal Procedure article

44.01 and by article 44.02, the proviso of which was repealed

when rulemaking power was given to the Court of Criminal

Appeals. Subdivision 25.2(b) is given the requirement that a

notice of appeal be in “sufficient” form, which codifies the

decisional law. The requirement in former subdivision

25.2(b)(3) that a plea-bargaining appellant’s notice of appeal

specify the right of appeal is replaced by a requirement in

subdivision 25.2(d) that the trial court certify the defendant’s

right of appeal in every case in which a judgment or other

appealable order is entered. The certificate should be signed at

the time the judgment or other appealable order is pronounced. 

The form of certification of the defendant’s right of appeal is

provided in an appendix to these rules. If the record does not

include the trial court’s certification that the defendant has the

right of appeal, the appeal must be dismissed. If a sufficient

notice of appeal or certification is not filed after the appellate

court deals with the defect (see Rules 34.5(c) and 37.1),

preparation of an appellate record and representation by an

appointed attorney may cease.

Rule 26. Time to Perfect Appeal

26.1. Civil Cases

The notice of appeal must be filed within 30 days after the

judgment is signed, except as follows: 

(a) the notice of appeal must be filed within 90 days

after the judgment is signed if any party timely files:

(1) a motion for new trial;

(2) a motion to modify the judgment;

(3) a motion to reinstate under Texas Rule of Civil

Procedure 165a; or

(4) a request for findings of fact and conclusions of

law if findings and conclusions either are

required by the Rules of Civil Procedure or, if

not required, could properly be considered by

the appellate court;

(b) in an accelerated appeal, the notice of appeal must be

filed within 20 days after the judgment or order is

signed;

26
TEXAS RULES OF APPELLATE PROCEDURE Page 27

(c) in a restricted appeal, the notice of appeal must be

filed within six months after the judgment or order is

signed; and

(d) if any party timely files a notice of appeal, another

party may file a notice of appeal within the

applicable period stated above or 14 days after the

first filed notice of appeal, whichever is later.

26.2. Criminal Cases

(a) By the Defendant. The notice of appeal must be

filed:

(1) within 30 days after the day sentence is

imposed or suspended in open court, or after

the day the trial court enters an appealable

order; or

(2) within 90 days after the day sentence is

imposed or suspended in open court if the

defendant timely files a motion for new trial.

(b) By the State. The notice of appeal must be filed

within 20 days after the day the trial court enters the

order, ruling, or sentence to be appealed.

26.3. Extension of Time

The appellate court may extend the time to file the notice

of appeal if, within 15 days after the deadline for filing the notice

of appeal, the party:

(a) files in the trial court the notice of appeal; and

(b) files in the appellate court a motion complying with

Rule 10.5(b).

Notes and Comments

Comment to 1997 change: This is former Rule 41. All

times for perfecting appeal in civil cases — including the time

for perfecting a restricted appeal — are stated. An extension of

time is available for all appeals. The provisions of former Rule

41(c) regarding prematurely filed documents are moved to Rule

27. Nonsubstantive changes are made in the rule for criminal

cases.

Rule 27. Premature Filings

27.1. Prematurely Filed Notice of Appeal

(a) Civil Cases. In a civil case, a prematurely filed

notice of appeal is effective and deemed filed on the

day of, but after, the event that begins the period for

perfecting the appeal.

(b) Criminal Cases. In a criminal case, a prematurely

filed notice of appeal is effective and deemed filed

on the same day, but after, sentence is imposed or

suspended in open court, or the appealable order is

signed by the trial court. But a notice of appeal is not

effective if filed before the trial court makes a

finding of guilt or receives a jury verdict.

27.2. Other Premature Actions

The appellate court may treat actions taken before an

appealable order is signed as relating to an appeal of that order

and give them effect as if they had been taken after the order was

signed. The appellate court may allow an appealed order that is

not final to be modified so as to be made final and may allow the

modified order and all proceedings relating to it to be included

in a supplemental record.

27.3. If Appealed Order Modified or Vacated

After an order or judgment in a civil case has been

appealed, if the trial court modifies the order or judgment, or if

the trial court vacates the order or judgment and replaces it with

another appealable order or judgment, the appellate court must

treat the appeal as from the subsequent order or judgment and

may treat actions relating to the appeal of the first order or

judgment as relating to the appeal of the subsequent order or

judgment. The subsequent order or judgment and actions

relating to it may be included in the original or supplemental

record. Any party may nonetheless appeal from the subsequent

order or judgment.

Notes and Comments

Comment to 1997 change: This rule is new and

combines the provisions of former Rules 41(c) and

58.

Rule 28. Accelerated Appeals in Civil Cases

28.1. Accelerated Appeals

(a) Types of Accelerated Appeals. Appeals from 

interlocutory orders (when allowed as of right by

statute), appeals in quo warranto proceedings,

appeals required by statute to be accelerated or

expedited, and appeals required by law to be filed or

perfected within less than 30 days after the date of

the order or judgment being appealed are accelerated

appeals.

(b) Perfection of Accelerated Appeal. Unless otherwise 

provided by statute, an accelerated appeal is

perfected by filing a notice of appeal in compliance

with Rule 25.1 within the time allowed by Rule

27