No. 01-14-00870-CV

In the Court of Appeals 

For the First District of Texas 

Houston, Texas 

Elishah Sawyers; Pax Freight & Crate, Inc.; 

and Robin Sawyers, 

Appellants 

vs.

Mark Carter and Sally Carter, 

Appellees 

Appeal from the 506th Judicial District Court of 

Waller County, Texas 

Trial Court Cause No. 14-07-22604 

APPELLEES’ BRIEF

Mr. Bruce C. Tough 

State Bar No. 20151500 

Tough Law Firm, PLLC 

819 Crossbridge Drive 

Spring, Texas 77373 

btough@toughlawfirm.net 

telephone: (281) 681-0808 

telecopier: (281) 281-0809 

Lead Counsel for Appellees 

Mark Carter and Sally Carter 

ACCEPTED

01-14-00870-cv

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/8/2015 12:33:22 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 12:33:22 PM CHRISTOPHER A. PRINE Clerk
ii

Table of Contents

Table of Contents...................................................................................................... ii

Index of Authorities................................................................................................. iv

Statement of the Case.................................................................................................1

Statement Regarding Oral Argument ........................................................................2

Statement of Issues Presented....................................................................................2

Statement of Facts......................................................................................................3

Summary of Argument ..............................................................................................6

Argument....................................................................................................................8

First Issue Presented

THE APPELLATE COURT LACKS SUBJECT MATTER 

JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS 

UNTIMELY AND THE RESTRICTED NOTICE OF APPEAL WAS 

UNTIMELY AND IMPERMISSIBLE...............................8 - 15

Second Issue Presented

THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND 

RETURN OF SERVICE WERE VALID...........................15 -27

Third Issue Presented

THE JUDGMENT IS FINAL AND APPEALABLE, NOT 

INTERLOCUTORY...................................................27 - 34
iii

Fourth Issue Presented

FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE 

AWARD OF ATTORNEY’S FEES AND MONETARY 

DAMAGES..............................................................34 - 38

Prayer..........................................................................................38

Certificate of Compliance..................................................................39

Certificate of Service........................................................................40

Appendix....................................................................................ante
iv

Index of Authorities

Cases Page

Adjust Video v. Nueces County,

996 S.W.2d 245 

(Tex. App.-Corpus Christi 1999, no pet.)....................................................30

Cockrell v. Estevez, 

737 S.W.2d 138

(Tex. App.--San Antonio 1987, no writ).................................................23

Color Smart, Inc. v. Little, 

No. 04-00-00294-CV, 2001 WL 1230526, at *2

(Tex. App. – San Antonio, Oct. 17, 2001, no pet.)......................................15

Cont’l Cas. Co. v. Guzman, 

No 04-07-00589-CV, 2009 WL 136926, at *5 

(Tex. App. –San Antonio Jan. 21, 2009, pet. denied)..................................22

Cotton Patch Cafe, Inc. v. McCarty, 

2006 WL 563307, at *6

(Tex. App. -- Fort Worth Mar. 9, 2006, no pet.)....................................16, 24

Daniel v. Fort Worth & Rio Grande Ry. Co., 

72 S.W. 578

(Tex. 1902)...................................................................................36

Davis v. McCray Refrigerator Sales Corp., 

150 S.W.2d 377 

(Tex. 1941)...................................................................................30

Day v. Tripp, 

1999 WL 546869

(Tex. App. -- Austin July 29, 1999)......................................................36

Dezso v. Harwood, 

926 S.W.2d 371

(Tex. App.--Austin 1996, writ denied)...................................................16
v

Fluor Daniel, Inc. v. H.B. Zachary Co., Inc.,

2005 WL 2559773, *3

(Tex. App. – Corpus Christi Oct. 13, 2005, pet. denied) (mem. op.).................32

Fresh Coat, Inc. v. Life Forms, Inc.

125 S.W.3d 765

(Tex. App. – Houston [1st Dist.] 2003, no pet.)..........................................33

Garcia v. Kastner Farms, Inc.,

774 S.W.2d 668 

(Tex.1989)....................................................................................13

Gardner v. U.S. Imaging, Inc.,

274 S.W.3d 669

(Tex. 2008)...................................................................................36

Gilstrap v. Calley, 

2004 WL 2812881

(Tex. App. Houston [14th Dist.] Dec. 9, 2004)..........................................13

Ginn v. Forrester,

282 S.W.3d 430

(Tex. 2009)...................................................................................13

Grondona v. Sutton,

991 S.W.2d 90

(Tex. App. – Austin 1998, pet. denied) (per curiam)...................................12

Herbert v. Greater Gulf Coast Enters., Inc., 

915 S.W.2d 866 

(Tex. App.--Houston [1st Dist.] 1995, no writ)..........................................16

Higginbotham v. General Life & Accident Ins. Co.,

796 S.W.2d 695 

(Tex. 1990)...................................................................................15

Holt Atherton Indus., Inc. v. Heine, 

835 S.W.2d 80

(Tex. 1992)...................................................................................34
vi

Hunt Oil Co. v. Moore,

639 S.W.2d 459 

(Tex. 1982)...................................................................................29

In re Bokeloh.

21 S.W. 3d 784

(Tex. App. – Houston [14th Dist.] 2000, no pet.)........................................11

In re Griffith,

2003 WL 21508337, at *1

(Tex. App.-- San Antonio July 2, 2003, mandamus denied)......................27, 28

Irlbeck v. John Deere Co.,

714 S.W.2d 54

(Tex. App. -- Amarillo 1986, no writ).....................................................37

John v. Marshall Health Servs., Inc.

58 S.W.3d 738 

(Tex. 2001)...................................................................................11

Jones v. Griege,

803 S.W.2d 486 

(Tex. App.--Dallas 1991, no writ).........................................................29

Jones v. Rabson & Broocks, LLC,

2003 WL 302439, at *3

(Tex. App. – Houston [1st Dist.] Feb. 13, 2003, no pet.) (mem. op.).................32

Lefton v. Griffith,

136 S.W.3d 271

(Tex. App. San Antonio 2004, no pet.)..............................................26, 36

Lehmann v. Har-Con Corp., 

39 S.W.3d 191

(Tex. 2001).....................................................................27, 32, 33, 36

LEJ Dev. Corp. v. Sw. Bank, 

407 S.W.3d 863 

(Tex. App. – Fort Worth 2013, no pet.)...................................................16
vii

Lucas v. Clark, 

347 S.W.3d 800

(Tex. App.—Austin 2011, pet. denied)...................................................34

Marquez v. Greig ex rel. Texas Stars Cheerleading, 

2012 WL 3228710, No. 01-10-01118-CV, op. at 3

(Tex. App. –Houston [1st Dist.] 2012, no pet.) (mem. op.)...........................25

McClain v. USA Today Newspaper, 

2010 Tex. App. 2010 WL 2404651

(Tex. App. --Dallas June 17, 2010).......................................................14

McDonald v. Newmyer, 

775 S.W.2d 652

(Tex. App.--Houston [1st Dist.] 1989, writ denied)......................................9

Mem'l Hosp. v. Gillis, 

741 S.W.2d 364 

(Tex. 1987)...................................................................................11

Ortiz v. Avante Villa at Corpus Christi, Inc., 

926 S.W.2d 608

(Tex. App.--Corpus Christi 1996, writ denied).......................................15, 23

Payne & Keller Co. v. Word, 

732 S.W.2d 38

(Tex. App.--Houston [14th Dist.] 1987,writ ref'd n.r.e.)...........................15, 23

Pena v. McDowell,

201 S.W.3d 665

(Tex. 2006)...................................................................................14

Priest v. Texas Animal Health Comm'n,

780 S.W.2d 874

(Tex. App.-Dallas 1989, no writ).........................................................29

Primate Construction, Inc. v. Silver, 

884 S.W.2d 151

(Tex. 1994)...................................................................................26
viii

Quaestor Invs., Inc. v. State of Chiapas, 

997 S.W.2d 226

(Tex. 1999)....................................................................................9

Ragsdale v. Progressive Voter League,

801 S.W.2d 880

(Tex. 1990)...................................................................................35

Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 

180 S.W.3d 903

(Tex. App. – Dallas 2005, pet. denied)...................................................22

Regalado v. State, 

934 S.W.2d 852

(Tex. App.--Corpus Christi 1996, no writ)..........................................15, 16

Rosedale Partners v. 131st Judicial Dist. Court,

869 S.W.2d 643

(Tex. App. -- San Antonio 1994)......................................................28, 29

Sheik Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP, 

2011 WL 3964573

(Tex. App. Dallas Sept. 9, 2011)..........................................................29

Sherman Acquisition II LP v. Garcia,

229 S.W.3d 802

(Tex. App. -- Waco 2007, no pet.)........................................................37

Southwestern Bell Mobile Sys. v. Franco,

971 S.W.2d 52

(Tex. 1997) (per curiam)...................................................................37

Stephenson v. Corporate Servs., Inc., 

650 S.W.2d 181 

(Tex. App. –Tyler 1983, writ ref’d n.r.e.)................................................21

Sutton v. Hisaw & Assocs. Gen. Contrs., Inc., 

65 S.W.3d 281

(Tex. App. –Dallas 2001, pet. denied)...................................................37
ix

Texas Commerce Bank, Nat'l Ass'n v. New,

3 S.W.3d 515

(Tex. 1999)..........................................................................34, 35, 37

Verburgt v. Domer,

959 S.W.2d 615

(Tex. 1997)...................................................................................12

Whitaker v. Rose, 

218 S.W.3d 216 

(Tex App.—Houston [14th Dist.] 2007, no pet.)........................................34

Williams v. Williams,

150 S.W.3d 436 

(Tex. App. –Austin 2004, pet. denied)...............................................15, 16

Zamarripa v. Sfuentes, 

929 S.W.2d 655

(Tex. App. – San Antonio 1996, no writ)................................................28

Zepeda v. Giraud, 

880 S.W.2d 833

(Tex. App. – San Antonio 1994)............................................................9

Zhao v. Lone Star Engine Installation Ctr., 

No. 05-09-01055-CV, 2009 WL 3177578, at *1

(Tex. App. –Dallas Oct. 6, 2009, pet. denied)..........................................12
x

Statutes and Rules Page

TEX. R. APP. P.4.2 .........................................................7, 8, 11, 13, 14

TEX. R. APP. P. 4.2(a)(1).......................................................................................10

TEX. R. APP. P. 4.2(c).....................................................................11

TEX. R. APP. P. 26.1..................................................................... 6, 8

TEX. R. APP. P. 26.1(a)....................................................................10

TEX. R. APP. P. 26.1(c)...............................................................7, 8, 9

TEX. R. APP. P. 26.3.................................................................7, 8, 12

TEX. R. APP. P. 30...........................................................................9

TEX. CIV. PRAC. & REM 38.004.......................................................36

TEX. R. CIV. P. 99(b)..................................................................16, 19

TEX. R. CIV. P. 99(b)(4)..................................................................25

TEX. R. CIV. P. 99(b)(8)..................................................................21

TEX. R. CIV. P. 106 ........................................................................26

TEX. R. CIV. P. 106(a)(2)..............................................................20, 26

TEX. R. CIV. P. 107(b)............................................................20, 25, 26

TEX. R. CIV. P. 107(b)(4).................................................................20

TEX. R. CIV. P. 107(b)(6).................................................................23

TEX. R. CIV. P. 107(h)................................................................26, 27

TEX. R. CIV. P. 306(a)..................................................................10, 11

TEX. R. CIV. P. 306(a)(4)...................................................................7

TEX. R. CIV. P. 306(a)(5).......................................... 6, 7, 8, 10, 11, 13, 14

TEX. R. CIV. P. 683....................................................................30, 31
1

No. 01-14-00870-CV

In the Court of Appeals

For the First District of Texas 

Houston, Texas

Elishah Sawyers; Pax Freight & Crate, Inc.; 

and Robin Sawyers,

Appellants

vs.

Mark Carter and Sally Carter,

Appellees

Appeal from the 506th Judicial District Court of 

Waller County, Texas

Trial Court Cause No. 14-07-22604

APPELLEES’ BRIEF

TO THE HONROABLE FIRST COURT OF APPEALS:

STATEMENT OF THE CASE

This was a suit for permanent injunctive relief and private nuisance 

damages. CR 2-29. After Appellees Mark and Sally Carter obtained a final default 

judgment on September 12, 2014 (CR 50-51), Appellants Elishah and Robyn 

Sawyer and Pax Crate and Freight, Inc. filed a late notice of appeal and, recently, 

a late notice of restricted appeal. (CR 60-61) The late notices fail to invoke 
2

Appellate Court subject matter jurisdiction and, therefore, this Court must dismiss 

Appellants’ appeal irrespective of any merit of the points of error raised by 

Appellants. Notwithstanding the absence of jurisdiction, service was proper, the 

default judgment is a final judgment and appealable, and sufficient legal and 

factual evidence has been presented via affidavits in support of the default 

judgment. In summary, the trial court judgment should be confirmed. 

STATEMENT REGARDING ORAL ARGUMENT

Appellee intends to participate in any oral hearing.

STATEMENT OF ISSUES PRESENTED

ISSUE ONE: THE APPELLATE COURT LACKS SUBJECT MATTER

JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY 

AND THE RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND 

IMPERMISSIBLE.

In the event the Appellate Court decides it has subject matter jurisdiction 

and hears the appeal, Appellees present the following issues:

ISSUE TWO: THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND 

RETURN OF SERVICE WERE VALID.

(Germane to Appellants’ Issues Two through Nine)

A review of the record shows that the proper defendants, Appellants herein, 

were served.
3

ISSUE THREE: THE DEFAULT JUDGMENT IS A FINAL JUDGMENT 

AND APPEALABLE.

(Germane to Appellants’ Issue One)

The language of the judgment, the record as a whole, and the conduct of the 

parties confirm the disposition of all parties and claims and, therefore, the 

judgment is final.

ISSUE FOUR: FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE 

AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES

(Germane to Appellant's Issues 1 and 3)

Evidence in the form of affidavits attached to Appellees’ petition supports

the trial court's judgment.

STATEMENT OF FACTS

As a matter of background, Mark and Sally Carter, Appellees in this matter 

(also, the “Carters”), had been living on their twenty-two acres of rural land 

located in Hockley, Texas since 2000 when, in September of 2013, Appellants, 

husband and wife, Elishah and Robyn Sawyers (also, the “Sawyers”), purchased 

the thirteen-acre property adjoining the Carters’ property. CR 2 – 29. Shortly 

thereafter, large amounts of dirt fill were hauled onto the Sawyers’ property to 

construct a semi-professional dirt bike track. CR 2-29. Thereafter, dirt bike activity 

regularly produced excessively loud, high-pitched noise that could be heard clearly 

on any part of the Sawyers’ property, including inside their home. CR 2-29. The 

dirt bike activity also produced large clouds of dust, which traveled onto the 
4

Sawyers’ property, coating their buildings, yards, vehicles, animals and anyone 

outside in dust. CR 2 – 29. The regular dirt bike riding deteriorated the quality of 

life of the Appellees. CR 2 – 29. 

Appellee Mark Carter informed Appellant Elishah Sawyers of the harm 

being caused by the dirt bike riding and requested that the dirt bikes be limited to 

smaller, quieter bikes. Appellant Elishah Sawyers refused Mr. Carter’s request and 

added that the Sawyers intended to move their business, Appellant Pax Crate & 

Freight, Inc., which business uses loud air guns in its regular course of business, to 

their Sawyer property along the Carters’ fence line. CR 2 – 29.

The Carters listed their property for sale to escape the noise and dust that 

had invaded their property and destroyed their quality of life that they had enjoyed 

for approximately fourteen years. CR. 2 – 29. Although the Carters found a 

serious buyer, the nuisance caused by the dirt bike racing activities on the 

Sawyers’ property directly caused that potential buyer to revoke the offer. CR 2 –

29.

Appellees filed their petition and request for permanent injunctive relief on 

July 1, 2014 seeking to recover damages in the amount of $480,000 and a 

permanent injunction against (1) the use of excessively loud dirt bikes or other 

ATV's on the Sawyers’ property and (2) the construction of Pax Crate & Freight, 

Inc. on the Sawyers’ property. CT 2-29.
5

The Appellants acknowledge that they timely e-filed answers to the petition 

on August 4, 2014; however, the purported answers are not a part of the trial 

clerk’s record. Appellees filed a motion for default judgment on August 21, 2014 

that included a request for an oral hearing; Appellees then filed an amended motion 

for default judgment on September 3, 2014 and a notice of submission on 

September 4, 2014. CR 36 – 49. The notice of submission advised that the motion 

would be presented on September 11, 2014 without the necessity of an oral hearing 

unless demand for one was made. CR 49. 

The motion for default judgment was supported by affidavits, as well as 

default admissions, which resulted in the trial court signing a default judgment on 

September 12, 2014 that awarded permanent injunctive relief and the amount of 

$480,000.00 in damages, plus costs of court, post-judgment interest, and attorney’s 

fees. CR 50-51. The damages award stemmed from the fact that the Carters

incurred personal damages as well as property damages, including the loss of a 

serious buyer who retracted an offer to purchase the Carters’ property, and 

damages for discomfort and annoyance in the amount of $480,000.00 because of 

the nuisance created by the Sawyers’ dirt bike racing activities. CR 51.

On October 27, 2014, Appellants filed their notice of appeal. CR 60. On 

November 24, 2014, this Court instructed the Sawyers to file a reasonable 

explanation for their untimely filing of notice of appeal. On December 14, 2014, 
6

the Sawyers filed a Response to the Court’s Inquiry Regarding Jurisdiction (also, 

“Response”) that concedes that the court does not have jurisdiction and blames 

their late filing of the notice of appeal on the trial clerk for the failure to send a 

notice of the default judgment to Appellants. See Response, pp. 2-3, 8 – 10, 17 –

19 and the Affidavits attached to the Response. (also, “Response Affidavits”)

In the Affidavits to their Response, Appellants Robyn and Elishah Sawyers 

acknowledge that they e-filed an answer in a timely manner on August 4, 2014 to 

the July 1, 2014 petition in their pro se status and attached a copy to their Affidavit 

of the answer that they purportedly e-filed, but the answers are not part of the 

record, hence the default judgment. Both Robyn and Elishah Sawyers also 

acknowledge that had they learned of the default judgment within thirty (30) days 

of it being signed, they would have timely filed a post-judgment motion or notice 

of appeal. See Affidavits attached to the Response.

Appellants did not file a post-judgment motion or a Texas Rule of Civil 

Procedure 306(a)(5) motion in the trial court. Appellants also filed a notice of 

restricted appeal on March 18, 2015. 

SUMMARY OF ARGUMENT

The Appellate Court lacks subject matter jurisdiction of this appeal and must 

dismiss it because Appellants did not file their notice of appeal timely pursuant to 

Texas Rules of Appellate Procedure 26.1 or provide a “reasonable explanation” for 
7

their late filing of the notice of appeal pursuant to Texas Rules of Appellate 

Procedure 26.3, nor did Appellants certify in the trial court the date on which they 

acquired actual notice of the default judgment pursuant to Texas Rules of 

Appellate Procedure 4.2 and Texas Rules of Civil Procedure 306(a)(4), a 

jurisdictional prerequisite. 

Their “reasonable explanation” for their late filing of the notice of appeal, to 

wit – they acquired knowledge of the default judgment too late to timely file a 

motion for new trial or notice of appeal within 30 days of the default judgment -

should have been presented at the trial court in a Texas Rules of Civil Procedure 

306(a)(5) hearing prior to filing their notice of appeal. The Texas Rules of Civil 

Procedure 306(a)(5) hearing is a prerequisite to subject matter jurisdiction of the 

appellate court. 

Appellants also filed their notice of restricted appeal late pursuant to Texas 

Rules of Appellate Procedure 26.1(c) and did so without first abandoning their 

ordinary appeal. 

The legal missteps of Appellants cannot be excused because of their pro se 

status. However, should the appellate court decide that it has subject matter 

jurisdiction, the default judgment should nevertheless be confirmed: (1) the 

service of process should not be invalidated for defective service because the 

record as a whole, including the petition, citation, and return, shows that citation 
8

was indeed served on the proper defendants ( “Appellants” herein) in the suit; (2) 

after Appellants’ recognition and treatment of the default judgment as final by their 

filing of a notice of appeal, and restricted notice of appeal, Appellants have now 

reversed their opinion and claim that the judgment is interlocutory, but a review of 

the default judgment, record and conduct of the parties provides a distinct mark of 

finality to the default judgment and all parties and claims were disposed of in the 

default judgment; and, (3) the affidavit evidence attached to Appellees’ petition is 

legally and factually sufficient to support the amounts awarded as damages and 

attorney’s fees. 

ARGUMENT

FIRST ISSUE PRESENTED

THE APPELLATE COURT LACKS SUBJECT MATTER JURISDICTION

BECAUSE THE NOTICE OF APPEAL WAS UNTIMELY AND THE 

RESTRICTED NOTICE OF APPEAL WAS UNTIMELY AND 

IMPERMISSIBLE.

This Court does not have subject matter jurisdiction to hear Appellants’ case 

and must dismiss the appeal. Appellants are not entitled to additional time to file 

their notice of appeal because they did not satisfy the jurisdictional prerequisites of 

Texas Rules of Appellate Procedure 4.2, 26.1, 26.1(c), 26.3 and Texas Rules of 

Civil Procedure 306(a)(5). Irrespective of the reversibility of the default judgment 

on the basis of any other points of error asserted by Appellants, this Court simply 

does not have authority to entertain the appeal because it was not timely perfected 
9

and, therefore, must grant Appellees' motion to dismiss. See McDonald v. 

Newmyer, 775 S.W.2d 652, 653 (Tex. App.--Houston [1st Dist.] 1989, writ 

denied).

Restricted Notice of Appeal: In addition to their filing of a notice of 

appeal on October 27, 2014, the Appellants have now also filed a restricted notice 

of appeal. However, the restricted notice of appeal was required to be filed no later 

than 6 months after the default judgment was signed on September 12, 2014. Tex. 

R. Civ. P. 26.1(c). The six-month time limit is mandatory and jurisdictional. 

Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)1. The 

deadline for the filing of the restricted notice of appeal was March 12, 2015, six 

months after the date on which the judgment was signed on September 12, 2014. 

Appellants did not file their restricted notice of appeal until March 27, 2014. As 

such, regardless of the reversibility of the default judgment on the basis of any

other points of error, the Appellate Court does not have jurisdiction over this 

appeal and can do nothing but dismiss the appeal. McDonald v. Newmyer, 775 

S.W.2d at 653. Furthermore, Appellants were required to first abandon their 

ordinary appeal as both an ordinary appeal and restricted appeal may not be 

pursued simultaneously. Zepeda v. Giraud, 880 S.W.2d 833, 834 - 835 (Tex. App. 

 

1 This case concerned a writ of error proceeding filed in 1996 under the former Texas Rules of 

Appellate Procedure. “Writ of error” appeals have been replaced by “restricted” appeals under 

the current Texas Rules of Appellate Procedure. See Tex. R. App. P. 30.
10

San Antonio 1994) (An appeal by writ of error from a default judgment in a civil 

suit was dismissed for want of jurisdiction because appellant had previously 

perfected an ordinary appeal, which was dismissed by the court and not abandoned 

by appellant.) Because of the late notice of restricted appeal, even the 

abandonment of the ordinary appeal would not preserve this appeal.

Notice of Appeal: The timely filing of a notice of appeal is jurisdictional. A 

notice of appeal must be timely filed within thirty days after a judgment is signed 

unless the appellant files a motion for new trial, motion to modify the judgment, 

motion to reinstate, or request for findings of fact and conclusions of law. Tex. R. 

App. P. 26.1 (a). The Appellants did not file a post-judgment motion to extend the 

plenary power of the trial court.

The default judgment in this case was signed on September 12, 2014. CR 

50- 51. Because Appellants did not file a motion for new trial, the trial court’s 

plenary jurisdiction therefore ended on October 12, 2014 and their notice of appeal 

was due on October 12, 2014. Appellants filed their notice of appeal on October 

27, 2014. CR 60.

Texas Rules of Appellate Procedure. 4.2(a) (1) allows post-judgment 

deadlines to be extended if the requirements of Texas Rules of Civil Procedure 

306(a) are met. Rule 306(a)(5) provides that a party who did not have notice or 

knowledge of a judgment or order may be afforded 30 days from the date he 
11

acquired such notice or knowledge in order to invoke the trial court's plenary 

jurisdiction, provided that he can prove in the trial court, on sworn motion and 

notice, the date on which the party or his attorney first either received a notice of 

the judgment or acquired actual knowledge of the signing and that this date was 

more than twenty days after the judgment was signed. Tex. R. Civ. P. 306(a)(5). 

After hearing the motion, the trial court must sign a written order that certifies the 

date when the party or the party's attorney first either received notice or acquired 

actual knowledge the judgment was entered. Id.; see John v. Marshall Health 

Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001); see also Tex. R. App. P. 4.2(c). 

Appellants did not comply with the required Texas Rules of Appellate 

Procedure 4.2 that requires compliance with the Texas Rules of Civil Procedure 

306(a)(5) to extend the start of the appellate timetable. Id. Compliance with the 

provisions of rule 306a is a jurisdictional prerequisite. Mem’l Hosp. v. Gillis, 741 

S.W. 2d 364, 366 (Tex. 1987). “Rule 306a plainly requires that this proof be made 

in the trial court, not the court of appeals. [Italics added.]” Id. 

The record herein does not indicate that Appellants requested a rule 306a 

hearing nor does it contain a written order; consequently, Appellants are not 

entitled to receive an extension of time for perfecting an appeal under rule 4.2 of 

the Texas Rules of Appellate Procedure. See In re Bokeloh, 21 S.W.3d 784, 793 
12

(Tex. App. – Houston [14th Dist.] 2000, no pet.); Grondona v. Sutton, 991 S.W.2d 

90, 92 (Tex. App. – Austin 1998, pet. denied) (per curiam).

The Appellants also did not file a motion in the Appellate Court pursuant to 

Texas Rules of Appellate Procedure 26.3, to extend the 30-day period by the 15-

day grace period to file the notice of appeal. In order to benefit from the 15 day 

extension, a motion for extension of time must be filed; however, such motion will 

be “necessarily implied” when the appellant has filed the notice of appeal within 

that 15 day grace period. Verburgt v. Domer, 959 S.W.2d 615, 617-18 (1997). The 

motion must provide a “reasonable explanation” for the failure to file the notice of 

appeal. Id.

Appellants herein filed their notice of appeal within the 15-day grace period 

but failed to file the companion motion for extension. Following this Court’s denial 

of Appellees’ motion to strike the late-filed notice of appeal, this Court instructed 

Appellants to provide a “reasonable explanation” for why the notice was filed late. 

The Texas Supreme Court has defined "reasonable explanation" to mean 

"'any plausible statement of circumstance indicating that failure to file within the 

[required] period was not deliberate or intentional, but was the result of 

inadvertence, mistake, or mischance.'" Zhao v. Lone Star Engine Installation Ctr., 

No. 05-09-01055-CV, 2009 WL 3177578, at *1 (Tex. App.—Dallas Oct. 6, 2009, 
13

pet. denied) (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 

(Tex.1989)). 

Appellants acknowledge that their “reasonable explanation” for filing the 

notice of appeal after the 30-day period was because of the trial clerk’s failure to 

provide notice of the default judgment. See Response, pp. 2-3, 8 – 10, 17 – 19 and 

the Affidavits of Appellants attached to the Response.2 Appellants cannot rely as 

their “sufficient explanation” on their late notice of default because they failed to 

first file a motion in the trial court to certify the date of their actual notice of 

default judgment pursuant to Texas Rules of Civil Procedure 306(a)(5) and Texas 

Rules of Appellate Procedure 4.2. This was a jurisdictional prerequisite. 

Appellants improperly seek a second bite at the apple by their assertion of this 

explanation now in this Court, instead of the trial court3, which is prohibited.

Gilstrap v. Calley, 2004 WL 2812881 (Tex. App. Houston [14th Dist.] Dec. 9, 

2004). 

Appellants’ suggestion that their mistake should be excused because they are 

pro se litigants cannot overcome the jurisdictional prerequisite of complying with 

 

2 The absence on the clerk’s docket sheet of the required notice of a default judgment does not 

result in an inference of error and is not reversible error anyway. Ginn v. Forrester, 282 S.W.3d 

430 (Tex. 2009) (clerk’s notation in record indicating the inability to locate documents that 

notice was sent could not be construed as affirmative evidence that trial court failed to provide 

notice.) 

3 Not to mention their attempt for a third bite of the apple by filing the notice of restricted appeal, 

infra, on March 27, 2015.
14

Texas Rules of Civil Procedure 4.2 and Texas Rules of Civil Procedure 306(a)(5).

Appellees were entitled to offer controverting evidence of the date on which notice 

of the judgment was received by Appellants, i.e. an affidavit of the trial court clerk. 

Appellants’ attempt to bypass this hearing in the trial court ignores the clear 

jurisdiction in this Court. Pro se litigants are held to the same standards of licensed 

counsel. Id.; Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006). “To do 

otherwise would give a pro se litigant an unfair advantage over a litigant who is 

represented by counsel. McClain v. USA Today Newspaper, 2010 WL 2404651

(Tex. App. --Dallas June 17, 2010).

The Appellants’ wish to now cast themselves as inexperienced defendants 

who did not know what they were doing is quickly dispelled by their 

acknowledgement that they would have filed a post-judgment motion or a timely 

notice of appeal had they received notice of the default judgment within 30days of 

the judgment, the clear inference being that they would not have filed the requisite 

hearing in the trial court under Texas Rules of Appellate Procedure 4.2 and Texas 

Rules of Civil Procedure 306(a)(5) or a request for findings of fact. See Response 

Affidavits. 

The Court of Appeals has no choice but to dismiss for lack of subject matter 

jurisdiction based on the failure of Appellants to either timely file their notice of 

appeal or obtain a motion in the trial court to certify the date on which they 
15

acquired knowledge of the default judgment to extend the plenary power of the 

trial court and, hence, the time within which to file a notice of appeal.

SECOND ISSUE PRESENTED

THE ISSUANCE OF PROCESS, SERVICE OF PROCESS, AND RETURN OF 

SERVICE WERE VALID.

Appellees do not dispute the well-established requirement of strict 

compliance with the rules governing service of citation involving default 

judgments; however, strict compliance with the rules does not require 'obeisance to 

the minutest detail.' Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 

613 (Tex. App.--Corpus Christi 1996, writ denied). Further, as long as the record 

as a whole, including the petition, citation, and return, shows that the citation was 

served on the proper defendant in the suit, service of process will not be 

invalidated. Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus Christi 

1996, no writ); Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d at 613; 

Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.] 

1987,writ ref'd n.r.e.). Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App. 

Austin 2004, pet. denied) (There was no confusion about whether the correct party 

was actually served); see also Higginbotham v. General Life & Accident Ins. Co., 

796 S.W.2d 695, 696-97 (Tex. 1990) (although return did not recite method of 

service as required, record demonstrated strict compliance with valid method of 

service); Color Smart, Inc. v. Little, No. 04-00-00294-CV, 2001 WL 1230526, at 
16

*2 (Tex. App. – San Antonio, Oct. 17, 2001, no pet.) (not designated for 

publication) ("Spelling errors, too minor to raise any doubt that the correct person 

was served, are insufficient to invalidate service."); LEJ Dev. Corp. v. Sw. Bank, 

407 S.W.3d 863, 866 (Tex. App. – Fort Worth 2013, no pet.); Herbert v. Greater 

Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 

1995, no writ)). 

Notwithstanding this requirement of strict adherence to rules governing 

service, courts distinguish those cases holding that otherwise problematic service 

of process will not be invalidated so long as the citation and return show with 

reasonable certainty that citation was served on the proper defendant. See Cotton 

Patch Cafe, Inc. v. McCarty, 2006 WL 563307, at *6 (Tex. App. -- Fort Worth 

Mar. 9, 2006, no pet.); citing Regalado v. State, 934 S.W.2d at 854; Dezso v. 

Harwood, 926 S.W.2d 371, 374 (Tex. App.--Austin 1996, writ denied) (upholding 

default judgment even though wrong person was sued because record clearly 

showed proper defendant received service and knew she was intended defendant.) 

In Williams, supra, the court of appeals held that even though the citation 

omitted the name of the petitioner and was not directed to a sheriff or constable, 

clearly not minor omissions, it otherwise complied with the requirements for 

proper service of citation under Texas Rules of Civil Procedure 99(b). Williams v. 

Williams, 150 S.W.3d at 444-445. The Williams court of appeals based their 
17

holding on the appellant’s testimony at her motion for new trial that she had been 

served, that she had carefully read all of the papers served on her, and that, 

although she had drafted an answer, she had not mailed it until after the default 

judgment was rendered. Id. Because the appellant’s testimony left no question that 

the correct defendant had been properly served, the court of appeals held that the 

trial court did not err in assuming personal jurisdiction of appellant. Id. The court 

explained that the purpose of requiring strict adherence to the rules governing 

service of citation is to ensure that there is no question about whether the proper 

party has been served before a default judgment is rendered. Id. at 444. “As long 

as the record as a whole, including the petition, citation, and return, shows that the 

citation was served on the defendant in the suit, service of process will not be 

invalidated [italics added].” Id.

A similar review herein of the record, including the petition, citations, and 

returns, also leaves no question that before the default judgment was rendered, the 

proper party defendants had been served. Further, both Elishah Sawyer and Robin 

Sawyer acknowledge in their Affidavit that they “thought” they had timely e-filed 

an answer on August 4, 2014 for the three Appellants, the irrefutable inference 

being that Appellants, without stating in so many words, had been served and did 

not dispute the propriety of service of process on them:

“After I found out that Mark Carter and Sally Carter filed the Lawsuit 

through their attorney, Jaclyn D. Patton, I took steps to make sure that an 
18

answer was filed in the lawsuit for myself (Elishah Sawyers), Robin 

Sawyers, and Pax Crate & Freight, Inc. I formed the belief by reading the 

citation that the answer of Elishah Sawyers, Robin Sawyers and Pax Crate & 

Freight, Inc., was due to be filed with the Clerk of the Waller County 

District Court on or before August 4, 2014. [Para.] I believed that a pro se 

answer had been e-filed on behalf of Elishah Sawyers, Robin Sawyers and 

Pax Crate & Freight, Inc. in the lawsuit on August 4, 2014. . . .”

The Affidavits clearly establish that the proper Defendants were served with 

citation and thought they had filed a timely answer, albeit there is no record of an 

answer, hence the request for a default judgment. Appellants’ Affidavit testimony 

that “after [they] found out [that Appellees filed the petition], they took steps to 

make sure that an answer was filed [on August 4, 2014]” seems to be a 

disingenuous exercise to avoid stating the obvious, that the petition had been 

“served” on Appellants before they “attempted” to e-file an answer. Appellants’ 

testimony that they would have filed a motion for new trial within 30 days of 

receiving notice of the default judgment further reinforces their recognition of the 

service of process as proper and not defective. Therefore, this Court should 

overrule Appellants’ eight assertions of error (issues two through nine) because 

there is no question that the proper parties were served. 

Nevertheless, in the event that this Court disagrees with the foregoing 

argument for proper service, in the alternative, Appellees assert the following 

argument: Despite the various errors asserted in issues two through nine, a review 

of the record, citations, returns and petition show strict adherence to the 
19

requirements for proper service of citation under Texas Rules of Civil Procedure 

99(b), as follows: 

a. In the second issue, Appellants argue that error is apparent on the face 

of the record because of the absence of Elishah Sawyer’s signature on the 

certified mail return receipt. The record, including the petition and affidavits 

attached to the petition, establishes or raises a presumption that Appellant 

Robin Sawyers is Elishah Sawyers’ wife (CR 4 -25, 30) who signed, as his 

agent, the certified mail return receipt for the service of process and petition 

that were addressed to Elishah Sawyers at their last known address of 23658 

Margerstadt Road, Hockley, Texas 77447. CR 43. The signature box on the 

return indicated that Robin Sawyers was signing either as the “addressee” or 

“agent” of the addressee, depending on which box was checked. CR 34. 

Since Robin Sawyers is not the “addressee”, then it is reasonable that the 

trial court, not presented with controverting evidence, presumed that she 

intended to sign as her husband’s agent. Furthermore, nowhere in the record 

or in Appellant Elishah Sawyer’s Affidavit has he disputed his wife’s 

authority to sign as his authorized agent. Thus, this Court should overrule 

this second issue.

b. In the third issue, Appellants argue that error is apparent on the 

face of the record because the two returns of service addressed to Elishah 
20

Sawyers and Robin Sawyers fail to state the date and time that the process 

was received for service as required by Texas Rules of Civil Procedure 

107(b)(4). 

Rule 106 (a) (2) of the Texas Rules of Civil Procedure allows as a 

valid method service by certified mail, return receipt requested with a copy 

of the citation and petition attached. Rule 107(b) requires eleven items to be 

included in “the return, together with any documents to which it is attached

(italics added).” Tex. R. Civ. P. 107 b. A review of the record shows that 

the Appellees requested that citations be issued on July 9, 2014 and then 

again on July 10, 2014, both file-stamped by the Waller County District 

Clerk. The return of service together with the documents attached thereto 

indicate the date and time that the Waller County District Clerk’s office 

issued the process for service on July 11, 2014 and the date that the certified 

mail was served on Appellants on July 14, 2014, as indicated on the green 

cards (CR 30 – 34). It is irrefutable that the clerk delivered the service 

documents to the US Mail Service between July 11th and 14th. Therefore, 

based on the foregoing and the absence in Appellants’ brief of a denial that 

the clerk performed this step, the Appellate Court should overrule this issue.

c. In the fourth issue, Appellants argue that error is apparent on 

the face of the record because the citation issued to Appellant Pax Crate & 
21

Freight, Inc. omitted the “Inc.” in violation of Texas Rules of Civil 

Procedure 99(b)(8).

Because a review of the record, the citation, petition, and return of 

service shows that the correct name of the Appellant with the “Inc.” included 

has been served (CR 3 -4), the omission of “Inc.” after “Pax Crate & 

Freight” in the citation should not invalidate service of process. The purpose 

of citation of service is to give notice to a defendant that he has been sued, 

by whom, and for what so that due process may be effected and the 

defendant may appear and defend the claims against him. See Stephenson v. 

Corporate Servs., Inc., 650 S.W.2d 181, 182-183 (Tex. App. – Tyler 1983, 

writ ref’s n.r.e.) (“[O]mission of a corporate designation from the return of 

service did not invalidate service when the citation and attached petition 

both fully named the defendant with the proper designation.” Therefore, this 

issue should be overruled.

d. In the fifth issue, Appellants argue that error is apparent on the 

face of the record because the return of service addressed to Pax Crate & 

Freight was served on Elishah Sawyer and not on Pax Crate & Freight, Inc. 

Service was made on the Pax Freight & Crate, Inc.’s authorized agent, 

Elishah Sawyer, whose agency relationship with that entity is established in 

the petition. CR 3 - 4. “A recital in a petition that names a person or entity 
22

as the registered agent for service on the defendant is prima facie evidence 

of that fact [citations omitted].” Cont’l Cas. Co. v. Guzman, No 04-07-

00589-CV, 2009 WL 136926, at *5 (Tex. App. –San Antonio Jan. 21, 2009, 

pet. denied). 

Service on Appellant Pax Crate & Freight, Inc. was proper because 

the record, including the citation, petition and return, properly names the 

corporate Appellant and shows service upon its authorized agent: the 

petition properly names “Defendant Pax Crate & Freight, Inc. [that] may be 

served with citation in this cause by serving its registered agent for service, 

Elishah Sawyers”; the citation is directed to “Pax Crate & Freight, by 

serving its authorized agent Elishah Sawyer”, and the return names “Elishah 

Sawyer”. CR 3 - 4, 35. 

Appellants cited as authority Reed Elsevier, infra, in arguing improper 

service on Pax Crate & Freight based on the return indicating service only 

on “Elishah Sawyer”. However, that case is distinguishable. The record in 

the current case, unlike the record in Reed Elsevier, describes the 

relationship between Pax Crate & Freight, Inc. and the person served, 

“Elishah Sawyer”, as the registered agent for the corporation. CR 3 -4. See 

Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 
23

S.W.3d 903, 905-06 (Tex. App. – Dallas 2005, pet. denied). Therefore, the 

Appellate Court should overrule the fifth issues.

e. In the sixth issue, Appellants argue that error is apparent on the 

face of the record because the returns of service pertaining to Elishah and 

Robin Sawyers fail to correctly state the address served in violation of 

107(b)(6) because of an “(s)” that is randomly placed after the zip code of 

the address on the returns. The return receipts (the “green cards”) have the 

correct address. CR 34. Appellees assume that Appellants are referring to 

the “(s)” following the zip code on the “certificate of delivery by mail” 

located at the bottom of the same page as the citation. CR 32 – 33.

As stated above, strict compliance with the rules does not require 

'obeisance to the minutest detail.' Ortiz v. Avante Villa at Corpus Christi, 

Inc., 926 S.W.2d at 613 (omission of accent mark and of corporate 

designation and substitution of symbol " at " for word "at" are defects that do 

not invalidate service); see also Cockrell v. Estevez, 737 S.W.2d 138, 140 

(Tex. App.--San Antonio 1987, no writ) (misspelling of defendant's name in 

citation did not invalidate service); Payne & Keller Co. v. Word, 732 S.W.2d 

38, 41 (Tex. App. Houston [14th Dist.] 1987, writ ref’d. n.r.e.) (judgment 

upheld where petition and citation reflected registered agent as "Philippe 

Petitfrere," and return reflected "Philipee Petitfreere").
24

In another case involving service of process and a questionable zip 

code, the court of appeals held that service of citation was not defective 

based on an incorrect digit in the zip code on the return. Cotton Patch Cafe, 

Inc. v. McCarty, 2006 WL 563307 (Tex. App. Fort Worth Mar. 9, 2006, no 

pet.). “[T]he return clearly complies with the requirements of Rule 107, but 

simply contains an incorrect final numeral in the registered agent's zip code. 

The zip code in McCarty's petition correctly states that the registered agent's 

zip code is "75063," the citation contains the correct zip code on the same 

page as the officer's return, and Cotton Patch does not argue that it was not 

served.” Id.

Rule 107 (b) requires the eleven required items to be included in “the 

return, together with any documents to which it is attached (italics added).” 

Tex. R. Civ. P. 107 (b). A review of the record herein shows that but for the 

“(s)” after the zip code in the “certificate of delivery by mail”, the addresses 

of Appellants Elishah and Robin Sawyer are identical on the petition, 

citation, and return receipts, all which omit any “(s)” after the zip code. 

Similar to Cotton Patch, supra, the petition and citation state the correct zip 

code and there is a slight discrepancy in the address in a different section of 

the record. 
25

Appellants’ citation to Marquez v. Greig ex rel. Texas Stars 

Cheerleading, 2012 WL 3228710, No. 01-10-01118-CV, op. at 3 (Tex. App. 

–Houston [its Dist.] 2012, no pet.) (mem. op.) should be rejected as 

authority. That case is distinguishable. In addition to the presence of a minor 

discrepancy in the service address, the return was marked “unclaimed”. 

Thus, because Appellants do not claim in their brief that they did not 

receive service, and because the citation and petition show that citation was 

actually served on Appellants at the correct address with the correct zip 

code, the trial court should not be deprived of jurisdiction because of the 

minor discrepancy of the addition of the “(s)” after the zip code. 

f. In the seventh and eighth issues, Appellants argue that error is 

apparent on the face of the record because the returns of service and 

citations, respectively, fail to provide an accurate description of what 

pleading was served as required by Texas Rules of Civil Procedure 107(b) 

(3) and Texas Rules of Civil Procedure 99(b)(4). Rule 107(b) requires 

eleven items to be included in “the return, together with any documents to 

which it is attached (italics added).” Tex. R. Civ. P. 107 (b). A review of the 

record shows that the citation, return of service, and petition provide the 

required description of the pleading served as “Plaintiffs’ Original Petition 

and Request for Permanent Injunction”. The Supreme Court case submitted 
26

by Appellants is distinguishable because, unlike in the current case, the 

petition attached to the return was a prior version that had omitted the name 

of the defendant. Primate Construction, Inc. v. Silver, 884 S.W.2d151 (Tex. 

1994). The Appellate Court should overrule this eighth issue. 

g. In the ninth issue, Appellants assert as error that the returns of 

service do not indicate a clerk’s file mark indicating proof of service and, 

therefore, it is not possible to show that the proof of service was on file for 

ten days, exclusive of the day of filing and the day of judgment as required 

by Texas Rules of Civil Procedure 107(h). However, rule 107(h) provides 

that the proof of service that is required to be on file with the clerk of the 

court for the ten day period is to be “as ordered by the court in the event 

citation is executed by an alternative method under Rule 106.” The 

alternative method under Rule 106 (a) (2) refers to service by certified mail, 

as was done in this case. In the current case, the citation instructs that the 

return must be attached to the citation pursuant to Rule 106 (a) (2) and the 

return receipts that are attached as instructed show that Elishah and Robin 

Sawyer were served on July 14, 2014 (CR 33 – 34). Since the default 

judgment was granted almost two months later on September 12, 2014. CR 

50 – 51, the required 10-day period was met. See Lefton v. Griffith, 136 

S.W.3d 271 (Tex. App. San Antonio 2004, no pet.). The presumption that 
27

the procedure and method of service followed by the trial court clerk to 

deliver citation of service by certified mail was “as ordered by the court” has 

not been rebutted in Appellants’ brief. Accordingly, the return of service was 

on file for the ten day period required under Texas Rules of Civil Procedure

107(h) before the default judgment was granted. Therefore, the Court should 

overrule this issue.

THIRD ISSUE PRESENTED

THE JUDGMENT IS FINAL AND APPEALABLE, NOT 

INTERLOCUTORY.

"A judgment issued without a conventional trial on the merits is final for 

purposes of appeal if and only if either it actually disposes of all claims and parties 

then before the court, regardless of its language, or it states with unmistakable 

clarity that it is a final judgment as to all claims and parties. [Italics added.]"

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). “[It is necessary 

to] divine the intention of the trial court from the language of the decree and the 

record as a whole, aided on occasion by the conduct of the parties." In re Griffith, 

2003 WL 21508337, at *1 (Tex. App.--San Antonio July 2, 2003, mandamus 

denied). "An order can be a final judgment for appeal purposes even though it 

does not purport to be if it actually disposes of all claims still pending in the case." 

Lehmann v. Har-Con Corp., 39 S.W.3d at 204. The absence of a Mother Hubbard 

recital is not determinative. Id. at 199-200. “The standard Mother Hubbard clause 
28

is used in interlocutory orders so frequently that it cannot be taken as any indicator 

of finality.” Id. at 204; Zamarripa v. Sfuentes, 929 S.W.2d 655, 657 (Tex. App.-

San Antonio 1996, no writ). 

A review of the record in this case when considered in conjunction with the 

conduct of the parties confirms the finality of the judgment because it disposes of 

all claims – in effect, the judgment has a “distinct stamp of finality.” See In re 

Griffith, 2003 WL 21508337 at *4. Contrary to Appellants’ claim that the default 

judgment failed to dispose of the request for prejudgment interest and injunctive 

relief, Appellees’ request for prejudgment interest was abandoned and the 

judgment disposes of the request for injunctive relief.

Pre-judgment Interest: Appellants cite to Rosedale Partners v. 131st 

Judicial Dist. Court, 869 S.W.2d 643, 648 (Tex. App. San Antonio 1994) for 

authority for their claim that the absence of an award for prejudgment interest 

renders the default judgment an interlocutory judgment. In fact, this case 

additionally serves as authority for the Appellees’ claim that they abandoned their 

claim for prejudgment interest. The appeals court in Rosedale, supra, held that the 

judgment was interlocutory, in part, because the default judgment failed to include 

an award of prejudgment interest. The Rosedale court of appeals stated that “it 

[was] crucial for us to know when Rosedale decided to abandon or waive its 

remaining requests [for prejudgment interest].” Id. Because nothing in the record 
29

indicated the date on which the claim was abandoned, the court was unable to 

consider whether or not the claim for prejudgment interest was abandoned. Id., see 

also Jones v. Griege, 803 S.W.2d 486, 487-88 (Tex. App.--Dallas 1991, no writ) 

(“Griege's notice to the appellate court of his decision to waive the request for 

punitive damages established that the judgment was now final and the appellate 

court had jurisdiction over the appeal.” )

Unlike Rosedale, supra, in the current case, there is a date on which the 

claim was abandoned – September 23, 2014, the date on which the trial clerk 

prepared abstracts of judgment upon the implied request of the Appellees. CR 52 -

55.4 Therefore, the absence of an award of prejudgment interest does not negate 

the finality of the default judgment.

Injunctive Relief: As to Appellants’ claim that the judgment is interlocutory 

because it did not dispose of the request for injunctive relief, their argument has no 

merit. In an appeal from a permanent injunction, the standard of review is whether 

the trial court committed a clear abuse of discretion. Priest v. Texas Animal Health 

Comm'n, 780 S.W.2d 874, 875 (Tex. App.-Dallas 1989, no writ).

 

4 The other two cases cited to by Appellants on the issue of the award of prejudgment 

interest are also distinguishable from the current case: in Hunt Oil Co. v. Moore, 639 S.W.2d 459 

(Tex. 1982), there was no argument presented for the abandonment of the claim for prejudgment 

interest; in Sheik Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP, 2011 WL 3964573

(Tex. App. Dallas Sept. 9, 2011), the appellant had been requested to brief the issue of the 

finality of the judgment from the standpoint of the pending claim of prejudgment interest, but 

appellants addressed a different issue instead, omitting to brief the issue of finality, leaving the 

court no choice but to dismiss as an interlocutory judgment.
30

Texas Rules of Civil Procedure 683 requires that every order granting an 

injunction shall do the following: (1) set forth the reasons for its issuance, (2) be 

specific in terms, (3) describe in reasonable detail and not by reference to the 

complaint or other document, the act or acts sought to be restrained, (4) be binding 

only on the parties to the actions and their agents and those persons in active 

concert or participation with them who receive actual notice of the order. See Tex. 

R. Civ. P. 683; see also Adjust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex. 

App.-Corpus Christi 1999, no pet.) (If a plaintiff seeks injunctive relief that is 

ancillary to other relief sought, Rule 683 applies to permanent injunctions.) "It is 

not essential that the judgment in express terms specifically dispose of each issue. 

That it does dispose of a particular issue may be inferred from other provisions 

thereof, provided such an inference follows as a necessary implication." Davis v. 

McCray Refrigerator Sales Corp., 150 S.W.2d 377, 377-78 (Tex. 1941).

In this case, the injunction language in the default judgment complies with 

Texas Rules of Civil Procedure 683 or that compliance may be inferred from other 

provisions in the default judgment that follow as a necessary implication. The first 

order of injunctive relief is an “injunction against unreasonable and excessive noise 

and dust created by the riding of large dirt bikes on Defendants' property”. CR 50 

– 51. The second order of injunctive relief is an “injunction against moving 
31

Defendants' crating business, Pax Crate and Freight, Inc., to Defendants' 

Margerstadt Road property”. CR 50 – 51.

Regarding the first injunction, the reason for its issuance is incorporated in 

the injunction itself – to wit, “the unreasonable and excessive noise and dust 

created by the riding of large dirt bikes”. CR 50 – 51. The specificity of the 

“property” may be inferred from reading both injunctions together that the 

“property” referred to in the first injunction is the property of Elishah and Robin 

Sawyers on Margerstadt Road; the injunction language describes in reasonable 

detail the activity sought to be restrained - the riding of large dirt bikes on the 

Defendants Sawyers’ Margerstadt property, and it is clear that the restricted 

activity is binding on Defendants Sawyers and anyone on their Margerstadt Road 

property. CR 50 – 51. The second injunction is also in compliance as the required 

information is either clear or can be naturally implied that Defendant Pax Crate 

and Freight, Inc. is prohibited from being moved to the Margerstadt property of 

Defendants Elishah and Robin Sawyers. CR 50 – 51. As the two injunctions are in

compliance with Texas Rules of Civil Procedure 683, the trial court did not abuse 

its discretion in disposing of the request for injunctive relief. CR 50 – 51. 

Appellants now would have this Court treat the judgment as interlocutory 

despite their treatment of the default judgment as final by filing a notice of appeal, 

albeit untimely. CR 60 – 61. A further indicator of their recognition of the 
32

judgment as final is found in the Affidavits where they acknowledge that had they 

acquired actual notice of the default judgment within 30 days of the signing of the 

default judgment, they would have filed a motion for new trial, the irrefutable 

inference being that they would have treated the default judgment as a final 

judgment. And, lastly, they also filed the notice of appeal indicating their treatment 

of the judgment as final. CR 60 – 61. See also Fluor Daniel, Inc. v. H.B. Zachary 

Co., Inc., 2005 WL 2559773, *3 (Tex. App. – Corpus Christi Oct 13, 2005, pet. 

denied) (mem. op.) (citing Lehmann v. Har-Con Corp., 39 S.W.3d at 203); see also 

Jones v. Rabson & Broocks, LLC, 2003 WL 302439, at *3 (Tex. App. – Houston 

[1sst Dist.] Feb. 13, 2003, no pet.)(mem. op.) (The appellate court considered the 

defendant’s treatment of the judgment as final by the filing of a motion for new 

trial and notice of appeal in its decision to confirm the lower court summary 

judgment as a final judgment.) 

In addition to the foregoing, the following indicators reinforce the finality of 

the default judgment: (1) the judgment awarded court costs and postjudgment 

interest which, by definition, cannot begin to accrue until after a final judgment; 

(2) when construed with the award of postjudgment interest and costs, and the 

disposition of all claims and parties as shown hereinabove, the judgment’s 

recitation that the judgment is available for execution, although not determinative, 

reinforces the court’s intent that the judgment is final; (3) the absence of a Mother 
33

Hubbard clause is not determinative; and (4) the trial court clerk recognized the 

judgment as final based on her issuance of abstracts of judgment and the 

preparation of a writ of execution. CR 50 – 51.

It is patently clear from the judgment and conduct of the trial court and the 

parties that the default judgment is final and appealable. Even if, arguendo, the 

default judgment awards more relief that that to which Appellees are entitled, the 

judgment is still final, not interlocutory as argued by Appellants. See Lehmann v. 

Har-Con Corp., 39 S.W.3d at 204 (“Granting more relief than the movant is 

entitled to makes the judgment reversible, but not interlocutory [citations 

omitted].”) 

Based on the foregoing argument and authorities, the errors asserted by 

Appellants regarding whether or not the default judgment is final and appealable 

should be overruled. A review of the record, the judgment itself, the actions of the 

district trial clerk, the treatment of the default judgment as final by the Appellants, 

and the indication of abandonment of the request for prejudgment interest by 

Appellants all lend a “distinct mark of finality” to the default judgment. 

However, in the alternative, should this Court be uncertain about the trial 

court's intent as to the finality of the judgment, the Court may "abate the appeal to 

permit clarification by the trial court." Id. at 206; see also Fresh Coat, Inc. v. Life 

Forms, Inc., 125 S.W.3d 765, 768 (Tex. App. – Houston [1st Dist.] 2003, no pet.)
34

(“[T]he Texas Supreme Court has suggested that, in a case in which we are 

uncertain about the trial court's intent in signing a judgment, we may abate the 

appeal to permit clarification by the trial court."). 

FOURTH ISSUE PRESENTED

FACTUAL AND LEGAL SUFFICIENCY SUPPORTS THE 

AWARD OF ATTORNEY’S FEES AND MONETARY DAMAGES.

In Appellants’ tenth point of error, they contend that the trial court erred by 

awarding unliquidated damages without an evidentiary hearing. However, this 

Court should overrule Appellants’ point of error because Appellees’ claims for 

attorney’s fees and damages were properly pled and probative admissible evidence 

in the form of affidavit testimony was properly considered by the trial court. 

When a no-answer default judgment is entered against a party on an 

unliquidated claim, the non-answering party is deemed to have admitted all facts 

properly pleaded, except for the amount of damages. Texas Commerce Bank, Nat'l 

Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999); Holt Atherton Indus., Inc. v. Heine, 

835 S.W.2d 80, 83 (Tex. 1992); Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.). "After a default judgment occurs, 

unliquidated damages must be proven to the trial court." Lucas v. Clark, 347 

S.W.3d 800, 803 (Tex. App.—Austin 2011, pet. denied). Unliquidated damages

can be proved up to the trial court through an evidentiary hearing or with affidavits. 
35

Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d at 515 - 517 (A trial court 

does not err when it considers affidavits in rendering a default judgment.) 

Attorney’s Fees: “An uncontested affidavit that establishes a prima facie 

case for attorney's fees is legally sufficient to support an attorney's fees award.” 

Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d at 515. Clear, direct, and 

uncontroverted evidence of attorney's fees is taken as true as a matter of law, 

particularly when the opposing party does not rebut the evidence. See Ragsdale v. 

Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990).

In this case, Appellees’ attorney submitted an affidavit of necessary and 

reasonable attorney’s fees that serves as admissible evidence and was before the 

trial court. She testified that she is a duly licensed attorney who is familiar with 

the usual and customary attorney’s fees in Waller County, and that $10,000.00 was 

a reasonable and customary fee for prosecuting this claim based on her knowledge 

of the services rendered to the Carters in this case. Texas Commerce Bank, Nat'l 

Ass'n v. New, 3 S.W.3d at 515 - 518. Appellees’ attorney’s uncontroverted 

affidavit is sufficient to support the award of attorney's fees. CR 45 – 48.

Appellants also do not dispute the reasonableness and necessity in their 

Brief; they merely oppose the absence of an oral hearing. However, an oral 

hearing is not mandatory where affidavit testimony is before the court, as in the 

current case. Id. And, "[t]he court may take judicial notice of the usual and 
36

customary attorney's fees and the contents of the case file without receiving further 

evidence in ... a proceeding before the court." See Tex. Civ. Prac. & Rem § 

38.004; Lefton v. Griffin, 136 S.W.3d, 271, 279 – 80 (Tex. App.-San Antonio 

2004, no pet.) (holding in a nonjury case that an appellate court may presume that 

the trial court took judicial notice even if the judge did not announce that he was

doing so). Thus, the judgment for attorney's fees herein finds support factually and 

legally.

Monetary damages: In this case, the court granted damages without 

identifying the theory of liability on which the damages were granted. CR 51.

However, it is not necessary for a judgment to identify on which theory it granted 

damages, particularly in a default context where liability has already been 

established on all theories of recovery. See Gardner v. U.S. Imaging, Inc. 274 

S.W.3d 669, 671 (Tex. 2008); Lehmann v. Har-Con Corp., 39 S.W.3d at 204 

("Granting more relief than that to which a movant is entitled makes the order 

reversible, but not interlocutory.") 

In a nuisance action, a plaintiff may recover damages for a personal injury 

caused by the nuisance, such as discomfort, annoyance, and injury to health, in 

addition to damages to property.5 Day v. Tripp, 1999 WL 546869 (Tex. App. 

Austin July 29, 1999); see also Daniel v. Fort Worth & Rio Grande Ry. Co., 72 

 

5 The plaintiff may recover damages for discomfort and annoyance even absent depreciation of 

the real property caused by the nuisance. Day v. Tripp, 1999 WL 546869.
37

S.W.578 (Tex. 1902). The measure of damages for discomfort and annoyance is 

the amount of money necessary to provide the plaintiff reasonable and fair 

compensation for such personal injury. Id. at 579. 

Appellees’ affidavits constitute sufficient uncontroverted evidence of 

personal injury caused by the nuisance that is sufficient factually and legally to 

support the award of damages. It is error for a trial court to not consider the 

affidavits. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 811(Tex. App. 

Waco 2007, no pet.). Hearsay is even admissible to support a default judgment for 

attorney’s fees and damages. Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 

at 517, citing Irlbeck v. John Deere Co., 714 S.W.2d 54 (Tex. App. Amarillo 1986, 

no writ).

When challenging the legal sufficiency of the evidence on an issue, the party 

without the burden of proof on that issue must show that there is “no evidence” in 

support of the default judgment. Sutton v. Hisaw & Assocs. Gen. Contrs., Inc., 65 

S.W.3d 281, 284 (Tex. App. Dallas 2001, pet. denied). The court considers only 

the evidence and inferences tending to support the trial court's finding, and 

disregards all evidence and inferences to the contrary. Southwestern Bell Mobile 

Sys. v. Franco, 971 S.W.2d 52, 54 (Tex. 1997) (per curiam). If more than a 

scintilla of evidence supports the judgment, the judgment will be upheld. Sutton v. 

Hisaw & Assocs. Gen. Contrs., Inc., 65 S.W.3d at 284. 
38

The testimony of Appellees is probative on their personal injury damages 

and more than a scintilla of evidence has been presented by the affidavits that they 

suffered personal and property damages as a result of the private nuisance created 

by Appellants. CR 2 – 18. The affidavits of Appellees (CR 8 – 18) are factually 

and legally sufficient to support the trial court’s findings that the monetary 

damages of Appellees are reasonable and fair compensation to Appellees. CR 8 –

18. If, arguendo, this Court finds otherwise, the Court may remand the issue of 

damages to the trial court. 

PRAYER

Based on the foregoing, Appellees Mark and Sally Carter pray that the 

Appellate Court dismiss this appeal for lack of subject matter jurisdiction. In the 

alternative, Appellees pray that this Court confirms the default judgment. In the 

event this Court seeks further clarification regarding the finality of the judgment,

Appellees pray that this Court abate the appeal to seek clarification in the trial 

court as to the finality of the default judgment. In the event this Court finds error 

regarding the award of attorney’s fees and damages, Appellees pray that this Court 

remand the issue of damages to the trial court.
39

Respectfully submitted,

TOUGH LAW FIRM, PLLC

 /s/ Bruce C. Tough 

Bruce C. Tough

btough@toughlawfirm.net email

State Bar No. 20151500

819 Crossbridge Drive

Spring, Texas 77373

(281) 681-0808 telephone

(281) 681-0809 telecopy

Lead Counsel for Appellees

Mark Carter and Sally Carter

Certificate of Compliance

Based upon the word counting function of Windows, this Brief of Appellees 

contains 9,106 words excluding the portions of the brief excluded in Texas Rule of 

Appellate Procedure 9.4(i)(1).
40

Certificate of Service

I hereby certify that a true and correct copy of the foregoing document has 

been forwarded by e-filing and e-service to all lead counsel of record, on this 8th

day of April, 2015, as follows:

Scott Rothenberg

LAW OFFICES OF SCOTT ROTHENBERG

2777 Allen Parkway, Suite 1000

Houston, Texas 77019-2165

(713) 667-0052 telecopier

scott@rothenberglaw.com email 

Counsel for Appellants

Elishah Sawyers; Pax Freight & 

Crate, Inc.; and Robin Sawyers

 /s/ Bruce C. Tough 

Bruce C. Tough
| | Positive

As of: April 7, 2015 5:29 PM EDT

Adust Video v. Nueces County

Court of Appeals of Texas, Thirteenth District, Corpus Christi

May 20, 1999, Delivered ; May 20, 1999, Filed

NUMBER 13-95-239-CV

Reporter

996 S.W.2d 245; 1999 Tex. App. LEXIS 3790

ADUST VIDEO, Appellant, v. NUECES COUNTY,

TEXAS, Appellee.

Prior History: [**1] On appeal from the 105th District

Court of Nueces County, Texas.

Disposition: As modified, AFFIRMED.

Core Terms

injunction, premises, inspection, sexual activity, patrons,

theater, nuisance, warning, booths, conditions,

warrantless, issuance, disease, notice, rights, sexual,

permanent injunction, restrained, adult, unsanitary

condition, public health, requires, violates, safety code,

trial court, peep show, restrictions, visibility, operators,

temporary

Case Summary

Procedural Posture

Appellant sought review of judgment which issued an

injunction on the basis of a public nuisance under Tex.

Health & Safety Code Ann. §§ 341 and 343 (Vernon

1992 & Supp. 1999), in appellee's favor in the 105th

District Court of Nueces County (Texas).

Overview

Appellant adult store owner challenged an injunction

issued in appellee public health department's favor for a

public nuisance under Tex. Health & Safety Code Ann.

§§ 341 and 343 (Vernon 1992 & Supp. 1999). Appellee

contended that unsanitary conditions that occurred

through sexual activity on appellant's premises created

a public health nuisance. The court rejected the

argument that the injunction violated civil procedure by

failing to define what unsanitary conditions existed. The

court explained the detailed explanation provision did

not apply to a permanent injunction which was the sole

relief sought. The court further found that the injunction

was reasonably specific. The court determined that the

injunction did not violate appellant's patrons' free speech

rights when the time, place, and manner restrictions

imposed were justifiable without reference to the content

of regulated speech and were narrowly tailored and left

ample alternative communication channels. The court

struck the injunction provision that required patrons'

identification because it exerted an impermissible

inhibitory effect. The court also struck the entry receipt

requirement as unreasonable.

Outcome

The court affirmed as modified a permanent injunction

in appellee's favor, because the injunction was

reasonably specific and sought protection of the public

from a public health nuisance. The court struck

reporting, random inspection, patron entry receipt, and

identification requirements because they were not

reasonably related to the public health nuisance and

had an impermissible inhibitory affect upon patrons'

free speech.

LexisNexis® Headnotes

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Preservation for Review

HN1 The party who seeks appellate review of a

particular point is responsible for presenting a complete

record on that point because it has the burden of

proving error.

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

HN2 The court presumes the evidence supports

injunctive relief.
Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

HN3 Tex. R. Civ. P. 683, provides: every order granting

an injunction and every restraining order shall set forth

the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail and not by reference

to the complaint or other document, the act or acts

sought to be restrained.

Civil Procedure > Remedies > Injunctions > Preliminary &

Temporary Injunctions

HN4 The Tex. R. Civ. P., provision compelling a detailed

explanation of the reason for the injunction's issuance is

held only to apply to temporary injunctions or suits

requesting ancillary injunctive relief.

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

HN5 A permanent injunction should not be more

comprehensive or restrictive than justified by the

pleadings, evidence, and usages of equity.

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

HN6 An injunction decree must be as definite, clear,

and precise as possible and when practicable it should

inform the defendant of the acts he is restrained from

doing, without calling on him for inferences or

conclusions about which persons might well differ and

without leaving anything for further hearing.

Public Health & Welfare Law > Healthcare > Public Health

Security > Communicable Diseases

HN7 "Sanitary" is defined as a condition of good order

and cleanliness that precludes the probability of disease

transmission under Tex. Health & Safety Code Ann.

§341.001(7) (Vernon 1992).

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

HN8 When the purpose of an injunction is to protect the

public, the test of required specificity is reasonableness,

and in framing the decree, doubt should be resolved

against the violator.

Civil Procedure > ... > Justiciability > Standing > General

Overview

HN9 A party may only assert a violation of its own rights.

Civil Procedure > ... > Justiciability > Standing > General

Overview

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > General Overview

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Scope

HN10 In the U.S. Const. amend. I context, litigants are

permitted to challenge a statute not because their own

rights of free expression are violated, but because of a

judicial prediction or assumption that the statute's very

existence may cause others not before the court to

refrain from constitutionally protected speech or

expression.

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Scope

Constitutional Law > ... > Fundamental Freedoms > Judicial

& Legislative Restraints > Overbreadth & Vagueness of

Legislation

Constitutional Law > ... > Fundamental Freedoms > Judicial

& Legislative Restraints > Time, Place & Manner

Restrictions

HN11 Restrictions merely on the time, place, or manner

of exercise of free speech rights violate no constitutional

protections if sufficiently justified and narrowly enough

drawn.

Constitutional Law > ... > Fundamental Freedoms > Judicial

& Legislative Restraints > Time, Place & Manner

Restrictions

HN12 The government may impose reasonable

restrictions of the time, place, or manner of protected

speech, provided restrictions are [1] justified without

reference to the content of the regulated speech, that

they are [2] narrowly tailored to serve a significant

governmental interest, and that they [3] leave open

ample alternative channels for communication of the

information.

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

HN13 Where the acts of the parties are divisible

regarding lawful and unlawful conduct, an injunction

may not be framed so broadly so as to prohibit the

enjoyment of lawful rights.

Constitutional Law > ... > Fundamental Freedoms > Judicial

& Legislative Restraints > Time, Place & Manner

Restrictions

996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1

Page 2 of 10
HN14 A city has a substantial interest in regulating

sexually-oriented businesses.

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions

Civil Procedure > Appeals > Standards of Review > Abuse

of Discretion

Civil Procedure > ... > Standards of Review > Harmless &

Invited Errors > General Overview

Civil Procedure > Appeals > Standards of Review >

Prejudicial Errors

HN15 The standard of review when a trial court grants

or denies a permanent injunction is limited to whether

the trial court clearly abused its discretion.

Criminal Law & Procedure > ... > Sex Crimes > Obscenity >

General Overview

HN16 Sexual activity in public places is prohibited by

the Texas Penal Code. See Tex. Penal Code Ann.

§§21.07, 21.08 (Vernon 1994). Theaters and retail

shops open to the public are public places.

Constitutional Law > ... > Fundamental Rights > Search &

Seizure > Scope of Protection

HN17 Patrons of adult video theaters have no right to

anonymity in viewing films.

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Scope

HN18 The U.S. Const. amend. I also protects against

government inhibition as well as prohibition.

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Scope

HN19 An identification requirement exerts an inhibitory

effect and therefore raises U.S. Const. amend. I issues

comparable to those raised by direct government

imposed prohibitions.

Constitutional Law > ... > Fundamental Rights > Search &

Seizure > Warrants

Criminal Law & Procedure > Search & Seizure > Search

Warrants > General Overview

HN20 A warrant is generally required for authorities to

search portions of a commercial enterprise that are not

open to the public.

Criminal Law & Procedure > Search & Seizure >

Warrantless Searches > General Overview

HN21 A warrantless search of commercial premises

may be reasonable when the business is closely

regulated. In such a case the privacy interests of the

owner are weakened and the government interest in

regulating are higher.

Constitutional Law > ... > Fundamental Rights > Search &

Seizure > Scope of Protection

Criminal Law & Procedure > Search & Seizure >

Expectation of Privacy

HN22 The expectation of privacy that the owner of

commercial property enjoys may, in certain

circumstances, be adequately protected by regulatory

schemes authorizing warrantless inspections.

Constitutional Law > ... > Fundamental Rights > Search &

Seizure > Scope of Protection

Business & Corporate Compliance > ... > Occupational

Safety & Health > Administrative Proceedings > Citations

& Inspections

HN23 Where congress has authorized inspection but

made no rules governing the procedures that inspectors

must follow, the U.S. Const. amend. IV, and its various

restrictive rules apply.

Constitutional Law > ... > Fundamental Rights > Search &

Seizure > Warrants

Criminal Law & Procedure > Search & Seizure > Search

Warrants > General Overview

HN24 The regulatory statute must perform the two

basic functions of a warrant: it must advise the owner of

the commercial premises that the search is being made

pursuant to law and has a properly defined scope, and

it must limit the discretion of the inspecting officers.

Counsel: FORAPPELLANT: John J. Fahle, III,Attorney

at Law, San Antonio, TX.

FOR APPELLEE: Walter D. Bryan, Assistant County

Attorney, Sandra Huhn, Nueces County Attorney's

Office,Annette L. Smith,Assistant DistrictAttorney, Carl

Lewis, County Attorney, Corpus Christi, TX.

Judges: Before Chief Justice Seerden and Justices

Dorsey and Hinojosa. Opinion by Justice Dorsey.

Opinion by: J. BONNER DORSEY

996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1

Page 3 of 10
Opinion

[*248] OPINION

Opinion by Justice Dorsey

This action was initiated by the Nueces County Attorney

at the behest of the Nueces County Public Health

Department against Adust Video, appellant, for

violations of the Texas Health and Safety Code. 1

Following the issuance of a temporary restraining order

and an agreed temporary injunction, the County sought

and received a permanent injunction. The trial court

found a public health nuisance existed and issued an

injunction which, among other things, prohibits "sexual

activity" on the Adust Video premises. Adust appeals by

three points of error, challenging the lack of specificity of

the findings of fact, the injunction's failure to afford

notice of what specific acts it prohibits, and violation of

appellant's First Amendment right to free speech.

[**2] As there is no statement of facts, we rely on the

parties' briefs for the applicable facts. Adust Video owns

and operates an adult book and video store in Nueces

County. In addition to displays of adult literature and

video tapes for sale and rent, the store also offered its

patrons eight private, coin-operated viewing booths and

a sixteen-seat theater for on-site screening of adult

movies. During December 1994, Nina Sisley, an

inspector for the county heath agency, twice inspected

appellant's business premises and, on both occasions,

discovered conditions she described as "unsanitary."

Specifically, Sisley found urine and seminal fluid on the

seats, floor, and walls of the restroom, booths, and

theater. The County asserts these conditions create a

high risk for the transmission of diseases, including

sexually transmitted diseases such as syphilis,

gonorrhea, and AIDS.

The health department notified Adust of its findings and

afforded Adust an opportunity to clean up the premises.

The County concluded Adust made no effort to correct

these conditions so, pursuant to health and safety code

sections 341.012 and 343.013, sought and obtained a

temporary restraining order, followed by [**3] a

temporary [*249] injunction, and finally, after a trial

before the court, a permanent injunction.

The trial court's order, in the name of abating a public

health nuisance, enjoined "sexual activity" on Adust's

premises. In addition to provisions requiring a general

increase in lighting throughout the establishment, the

order required verbal and written notices and posted

signs warning all who entered that sexual activity was

strictly forbidden within. The trial court ordered that any

person desiring entry into a booth or the theater must

sign an individualized written warning which must

include their printed name, phone number, address,

and driver's license number. Adust is required to

maintain the original of these receipts for random,

warrantless inspection by the County. The management

must refuse entry to the booths or theater to any person

refusing to sign and, if they enter anyway, must call the

police to report the trespass. "Sexual activity," when

discovered, must be halted and reported to the police.

Adust was also required to modify the building so that

the staff would "have a clear view at all times of all

events occurring within the premises." If the court's

intentions were [**4] in any way unclear, the order went

on to permanently enjoin Adust from permitting sexual

activity within its premises by any person; from

maintaining an unsanitary condition; from tolerating a

nuisance; from refusing to comply with the injunction; or

from refusing to consent to random warrantless

inspections by the State.

Our review of appellant's arguments is seriously limited

because there is no statement of facts. See Brockette v.

Sosa, 675 S.W.2d 807, 809 (Tex. App.--Corpus Christi

1984, no writ). HN1 The party who seeks appellate

review of a particular point is responsible for presenting

a complete record on that point because it has the

burden of proving error. Simon v. York Crane & Rigging

Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Brockette,

675 S.W.2d at 809. HN2 We presume the evidence

supports injunctive relief.

I. THE RULES GOVERNING INJUNCTIONS

In its first point of error, Adust contends the trial court's

order violates the rules of civil procedure because it

does not define what unsanitary conditions exist on

appellant's premises.

HN3 Rule of civil procedure 683 provides:

Every order granting an injunction and every restraining

order shall set forth the reasons [**5] for its issuance;

shall be specific in terms; shall describe in reasonable

detail and not by reference to the complaint or other

1

TEX. HEALTH & SAFETY CODE ANN. §§ 341, 343 (Vernon 1992 & Supp. 1999).

996 S.W.2d 245, *245; 1999 Tex. App. LEXIS 3790, **1

Page 4 of 10
document, the act or acts sought to be restrained . . . .

TEX. R. CIV. P. 683.

Though the rule on its face applies to every order

granting an injunction, HN4 the provision compelling a

detailed explanation of the reason for the injunction's

issuance has been held only to apply to temporary

injunctions or suits requesting ancillary injunctive relief.

City of Houston v. Morgan Guar. Intern. Bank, 666

S.W.2d 524, 536 (Tex. App.--Houston [1st Dist.] 1983,

writ ref'd n.r.e.); Gasperson v. Madill Nat'l Bank, 455

S.W.2d 381, 398 (Tex. Civ. App.--Fort Worth 1970, writ

ref'd n.r.e.); Texas Liquor Control Bd. v. Bacon, 443

S.W.2d 312, 317 (Tex. Civ. App.--Austin 1969), rev'd on

other grounds, 456 S.W.2d 891 (Tex. 1970); Alexander

Schroeder Lumber Co. v. Corona, 288 S.W.2d 829, 835

(Tex. Civ. App.--Galveston 1956, writ ref'd n.r.e.). We

are persuaded that rule 683's requirement for detailed

explanations of reasons for the issuance of the injunction

does not apply to a permanent injunction that is the sole

relief sought by the action. The [**6] rule does apply to

injunctive relief that is ancillary to other relief sought in

the action. In Schroeder, the Galveston court expressly

held: "We reach the conclusion that [rule 683] applies

only to ancillary injunctive relief and not to final

judgments in suits, the sole object of which is to obtain

a perpetual injunction." Schroeder, 288 S.W.2d at 835.

[*250] The Schroeder rule was applied in Gasperson:

"such rule [683] only applies to ancillary injunctive relief

and not to final judgments." Gasperson, 455 S.W.2d at

398. The rule was also applied, although modified, in

Bacon (in affirming the issuance of a permanent

injunction) where the court said, "It has been held that

Rule 683 . . . does not apply to permanent injunctions

insofar as it provides that the order shall state reasons

for its issuance." Bacon, 443 S.W.2d at 317. We likewise

hold that where the injunction is not ancillary to other

relief sought, rule 683's provision requiring the injunction

to state the reasons for its issuance in specific terms

does not apply. 2

[**7] However, even should that provision of rule 683

apply, we hold that the order sufficiently apprized Adust

of the reason for its issuance. The order prohibits

appellant from permitting itself to operate as a public

health nuisance. Specifically, the trial court found that

Adust permitted its patrons to engage in sexual activity

which resulted in an unsanitary condition constituting a

public health nuisance. We hold the order satisfactorily

states the reasons for its issuance. Appellant's first

point of error is overruled.

Adust also attacks the trial court's order by way of rule

683 in its second point of error, claiming the order does

not sufficiently specify what appellant is restrained from

doing. Specifically, Adust challenges the order's

language that it is prohibited from "maintaining an

unsanitary condition," and from "tolerating a nuisance

to occur within its premises."

Rule 683's requirement that orders be specific in terms

and describe in reasonable detail the acts to be

restrained applies to permanent injunctions. HN5 A

permanent injunction should not be more

comprehensive or restrictive than justified by the

pleadings, evidence, and usages of equity. Thompson

v. Thompson [**8] Air Conditioning & Heating, Inc., 884

S.W.2d 555, 559 (Tex. App.--Texarkana 1994, no writ).

The Texas Supreme Court held:

HN6 An injunction decree must be as definite, clear and

precise as possible and when practicable it should

inform the defendant of the acts he is restrained from

doing, without calling on him for inferences or

conclusions about which persons might well differ and

without leaving anything for further hearing. (Citation

omitted). But obviously the injunction must be in broad

enough terms to prevent repetition of the evil sought to

be stopped, whether the repetition be in form identical

to that employed prior to the injunction or (what is far

more likely) in somewhat different form calculated to

circumvent the injunction as written.

San Antonio Bar Ass'n v. Guardian Abstract & Title Co.,

156 Tex. 7, 15, 291 S.W.2d 697, 702 (1956).

The order before us contains nine specific instructions

to appellant regarding lighting, signage, and its duties

regarding patrons wishing to use the theater and booths.

Following these nine detailed instructions are five

general instructions that are apparently intended to

anticipate repetition of the behavior lending itself to [**9]

2 State v. Cook United, Inc., 464 S.W.2d 105, 107 (Tex. 1971), held that it was not necessary to state in a temporary injunction

why the applicant would be endangered by probable injury, holding that the statute itself declares the injury, by making sales

on Saturday and Sunday a public nuisance. Chief Justice Calvert concurred, but stated the requirement of Rule 683 was

mandatory. He was recognizing an exception in cases involving injunctive orders restraining statutorily declared public

nuisances.

996 S.W.2d 245, *249; 1999 Tex. App. LEXIS 3790, **5

Page 5 of 10
creation of a public health nuisance in, as the supreme

court observed, "somewhat different form calculated to

circumvent the injunction." Id.

Adust's complaint focuses on two of these general

instructions. Specifically, it cites orders number two and

three which prohibit Adust "from maintaining an

unsanitary condition within its premises at its [*251]

place of business" and from permitting "a nuisance to

occur on its premises."

The health and safety code defines HN7 "sanitary" as a

condition of good order and cleanliness that precludes

the probability of disease transmission." See TEX.

HEALTH & SAFETY CODE ANN. § 341.001(7) (Vernon

1992). Similarly, section 341.011 itemizes twelve

conditions that constitute public health nuisances,

including: (5) sewage, human excreta, . . . or other

organic wastes deposited . . . or exposed in such a way

as to be a potential instrument or medium in disease

transmission to a person or between persons; . . . and

(12) an object, place or condition that is possible and

probable medium of disease transmission to or between

humans." TEX. HEALTH & SAFETY CODE ANN. §

341.011 (Vernon 1992).

HN8 When the purpose of an injunction is to protect the

public, [**10] the test of required specificity is

reasonableness, and in framing the decree, doubt

should be resolved against the violator. Lloyd A. Fry

Roofing Co. v. State, 541 S.W.2d 639, 646 (Tex. Civ.

App.--Dallas 1976, writ ref'd n.r.e.); Davies v.

Unauthorized Practice Comm. of State Bar of Tex., 431

S.W.2d 590, 595 (Tex. Civ. App.--Tyler 1968, writ ref'd

n.r.e.). Given the definitions supplied by statute of

"nuisance" and "sanitary conditions," we hold the

injunction is reasonably specific.

We overrule appellant's second point of error.

II. CONSTITUTIONAL ATTACKS

In its third point of error, Adust challenges the injunction

as a violation of its right to free speech under the First

Amendment to the U.S. Constitution.

3

It argues that the

constraints imposed by the injunction have a "chilling

effect" both on its ability to convey its constitutionally

protected message and the right of its customers to

receive it. By so doing, Adust is asserting the First

Amendment rights of its customers to view adult films.

[**11] The general rule is that HN9 a party may only

assert a violation of its own rights. "However, HN10 in

the First Amendment context, 'litigants . . . are permitted

to challenge a statute not because their own rights of

free expression are violated, but because of a judicial

prediction or assumption that the statute's very

existence may cause others not before the court to

refrain from constitutionally protected speech or

expression.'" Virginia v. American Booksellers Ass'n,

484 U.S. 383, 394, 98 L. Ed. 2d 782, 108 S. Ct. 636

(1988) (quoting Secretary of State of Md. v. J.H. Munson

Co., 467 U.S. 947, 956-57, 81 L. Ed. 2d 786, 104 S. Ct.

2839 (1984)).

We review an injunction on First Amendment grounds

under the same rule as a statute. Adust may assert the

constitutionally protected rights of its patrons. 4

[**12] The State concedes, and we so presume for the

purposes of this opinion, that the materials appellant

seeks to exhibit are presumptively protected by the First

Amendment to the United States Constitution. [*252]

Appellant argues that the conditions imposed by the

trial court infringe upon its free speech rights and those

of its customers.

HN11 Restrictions merely on the time, place, or manner

of exercise of free speech rights violate no constitutional

protections if sufficiently justified and narrowly enough

drawn. The Supreme Court in Ward v. Rock Against

Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct.

2746 (1989), set out the appropriate standard for

reviewing restrictions on the time, place or manner of

speech:

3 Adust's brief refers to Article I, section 8 of the Texas Constitution, but its argument focuses solely on the First Amendment

of the United States Constitution. Consequently, we do not consider the extent to which Article I, section 8 provides an

independent basis for the protection of Adust's rights. See Tilton v. Moye, 869 S.W.2d 955, 958 n.2 (Tex. 1994). Points of error

not briefed are waived. Paramount Nat'l. Life Ins. Co. v. Williams, 772 S.W.2d 255, 263 (Tex. App.--Houston [14th Dist.] 1989,

writ denied); Parker v. TXO Prod. Corp., 716 S.W.2d 644, 648 (Tex. App.--Corpus Christi 1986, no writ).

4

The right to speak freely is meaningless without the corresponding right of a listener to hear what is spoken. The listener's

right to receive information is also protected by the First Amendment. See Kleindienst v. Mandel, 408 U.S. 753, 762, 33 L. Ed.

2d 683, 92 S. Ct. 2576 (1972); Red Lion Broad. v. F.C.C., 395 U.S. 367, 390, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969); Thomas

v. Collins, 323 U.S. 516, 534, 89 L. Ed. 430, 65 S. Ct. 315 (1945).

996 S.W.2d 245, *250; 1999 Tex. App. LEXIS 3790, **9

Page 6 of 10
HN12 The government may impose reasonable

restrictions of the time, place, or manner of protected

speech, provided restrictions "are [1] justified without

reference to the content of the regulated speech, that

they are [2] narrowly tailored to serve a significant

governmental interest, and that they [3] leave open

ample alternative channels for communication of the

information."

Id. at 791 (quoting Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 293, [**13] 82 L. Ed. 2d

221, 104 S. Ct. 3065 (1984)). Because the injunction

places restrictions on appellant's ability to display

presumptively protected materials to its customers, we

review the provisions of the injunction under that

analysis.

HN13 Where the acts of the parties are divisible

regarding lawful and unlawful conduct, an injunction

may not be framed so broadly so as to prohibit the

enjoyment of lawful rights. Kulkana v. Braeburn Valley

W. Civic Ass'n, 880 S.W.2d 277, 278 (Tex.

App.--Houston [14th Dist.] 1994, no writ). Since

appellant presumably has the guaranteed constitutional

right to exhibit these materials to adult patrons, the

injunction should not prohibit or unduly restrict

appellant's free enjoyment of that right.

In addition to the government's interest in sanitation, the

government has a significant interest in preventing the

spread of sexually-transmitted diseases. HN14 A city

has a substantial interest in regulating sexually-oriented

businesses. City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). The

State has a significant interest in preventing the spread

of sexually transmitted disease through sexual activity

on appellant's [**14] premises. See John Doe v. City of

Minneapolis, 898 F.2d 612, 617 (8th Cir. 1990) (holding

that the ordinance at issue in that case advanced the

significant governmental interest in combating the

spread of the AIDS virus).

HN15 The standard of review when a trial court grants

or denies a permanent injunction is limited to whether

the trial court clearly abused its discretion. Morris v.

Collins, 881 S.W.2d 138, 139-40 (Tex. App.--Houston

[1st Dist.] 1994, writ denied). We consider whether the

trial court could reasonably have reached only one

decision, and whether its decision was so arbitrary and

unreasonable as to amount to a clear and prejudicial

error of law. See Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992); AIG Risk Mgmt., Inc. v. Motel 6 Operating

L.P., 960 S.W.2d 301, 308 (Tex. App.--Corpus Christi

1997, no writ).

III. PARTICULAR PROVISIONS

A. Visibility and lighting

Adust complains about particular requirements of the

injunction that apply to visibility of activities on the

premises and the adequacy of lighting to assure visibility.

Those provisions are the following:

1. Any employee or agent of the Defendant operating or

managing [**15] the business shall have a clear view at

all times of all events occurring within the premises.

2. The theater shall have adequate lighting at all times

that said business is open to the public.

3. The business shall have adequate running lights on

the floor of the theater common to commercial theaters.

[*253] 4. The business shall have a lighting system of

appropriate degree to allow a sufficient measure of

visibility so that, if sexual activity occurs or is about to

occur within the premises, whether such activity is by a

person alone or with another, such conduct would be

obvious and visible to any person managing the

business.

The purpose of the injunction is to prevent the unsanitary

conditions that have been repeatedly found on the

premises. Those conditions are the result of sexual

activities throughout the business. By preventing sexual

contacts from occurring, it is hoped the areas will be

kept sanitary. This paragraph, requiring all areas to be

visible to management, is to prevent sexual activity

from occurring. Adust argues that sexual activity taking

place behind the closed doors of a room, however

small, is not illegal. Although that may be correct, such

is not speech protected [**16] by the First Amendment.

Adust has a right to exhibit films and sexually oriented

material under the Constitution, but such right is

unrelated to another person's right, if any, to engage in

sexual conduct.

HN16 Sexual activity in public places is prohibited by

the Texas Penal Code. See TEX. PENAL CODE ANN.

§§ 21.07, 21.08 (Vernon 1994). Peep show booths

have been held to be public places. Liebman v. State,

652 S.W.2d 942, 944-45 (Tex. Crim. App. 1983).

Theaters and retail shops open to the public are public

places.

996 S.W.2d 245, *252; 1999 Tex. App. LEXIS 3790, **12

Page 7 of 10
The United States Supreme Court has concluded HN17

patrons of adult video theaters have no right to

anonymity in viewing films. Paris Adult Theatre v. Slaton,

413 U.S. 49, 65, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973).

In cases dealing with substantially similar issues, similar

provisions have withstood challenge. See Bamon v.

City of Dayton, 923 F.2d 470, 473 (6th Cir. 1991);

FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.

1978). This requirement does not affect Adust's ability

to sell or lease its films nor its patrons' right to view

them. There is nothing improper in those portions of the

injunction.

B. Mandatory Warnings

The next three paragraphs [**17] deal with mandatory

warnings to Adust's patrons:

5. The management, including any operators and

employees of the Defendant, shall be under a continuing

obligation and duty to give verbal notice to any person

who enters the premises that any sexual activity,

whether by that person alone or with another, is

absolutely prohibited.

6. The management, including any operators and

employees of the Defendant, shall post and permanently

maintain notice in the following locations: on the exterior

of the entrance door, at the place where payment is

made, at the entrance area to the theater, at the entrance

to the peep show booth, on the interior wall of each

peep show booth, on each interior wall of the theater, on

each interior wall of the business, on the entrance door

to each restroom premises [sic], and on each interior

wall of each restroom; which shall state that no sexual

activity by any person, whether alone or with another, is

permitted, allowed or tolerated. The notice shall be

sufficient if it substantially states the following:

"WARNING!

No Sexual Activity By Any Person,

Whether Alone Or With Any Other Person,

Is Permitted, Allowed, or Tolerated In or About the

Premises.

[**18] Violators Will Be Removed From the Premises,

Will Be Denied Future Entry Onto the Premises And

Will Be Referred To The Police For Criminal

Prosecution."

Adust argues that such warnings are bound to have a

chilling effect on the [*254] store's patrons, particularly

the unsophisticated, and that the warnings do not

promote sanitary conditions. The purpose of the

injunction is to prohibit the unsanitary conditions that

resulted from sexual conduct on the Adust premises.

With a view towards eliminating the occasions for sexual

conduct, the warning advises the public that such

activities are prohibited. These notices do not affect

either the ability of Adust to sell or rent its materials or its

patrons to purchase them. We find the paragraphs are

reasonably designed to further the government's

legitimate health interests.

C. THE IDENTIFICATION ORDER

The next paragraph provides:

7. The management, including the operators and all

employees of the Defendant, shall give to each person

wanting to enter the theater or any peep show booth a

written notice that no sexual activity by any person,

whether alone or with another, is permitted, allowed or

tolerated.

. . .

ENTRY RECEIPT

[**19] I have received written notice of the above

Warning. I understand the warning.

The entry receipt requires the potential patron to sign

the notice, print his name, and divulge his address,

phone and driver's license number. Adust is to maintain

the originals on file for no-notice inspection by

"appropriate law enforcement authorities." No person is

to be allowed into the theater or peep show booth who

refuses to sign the entry receipt, and all who enter

without signing are to be advised they are committing a

trespass. Adust's management is ordered to

immediately call law enforcement authorities to enforce

the warning and receipt requirements.

While this order does not directly prohibit the exercise of

Adust's or its patrons' freedom of speech, HN18 the

First Amendment also protects against government

inhibition as well as prohibition. Lamont v. Postmaster

Gen., 381 U.S. 301, 309, 14 L. Ed. 2d 398, 85 S. Ct.

1493 (1965) (Brennan, J., concurring). HN19 An

identification requirement exerts an inhibitory effect,

Talley v. California, 362 U.S. 60, 64-65, 4 L. Ed. 2d 559,

996 S.W.2d 245, *253; 1999 Tex. App. LEXIS 3790, **16

Page 8 of 10
80 S. Ct. 536 (1960), and therefore raises First

Amendment issues comparable to those raised by direct

government imposed [**20] prohibitions. Fabulous

Assocs. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d

780, 785 (3d Cir. 1990).

The State cites Pollard v. Cockrell, 578 F.2d 1002,

1015-16 (5th Cir. 1978), for authority that obtaining and

keeping such permits is rationally related to protecting

public health, in that, if contaminants are found, it may

be necessary to locate and notify patrons of possible

exposure to disease. But Pollard involved a massage

parlor and the requirement that a detailed "appointment

book" be maintained. The aims of such a list is to keep

minors from using such establishments and in

preventing patrons from soliciting proscribed sexual

contacts. Id. at 1016.

The main purpose of such a requirement for Adust is to

inhibit potential customers from viewing the

sexually-oriented films by their loss of anonymity. The

requirement is not a reasonable restriction on Adust's

business and it has no rational relationship to the

prevention of disease, sexually transmitted or otherwise.

The County has not borne its heavy burden of

demonstrating that the compelling state interest could

not be served by restrictions that are less intrusive on

protected forms of expression. See Sable

Communications [**21] v. F.C.C., 492 U.S. 115, 126,

106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989).

Adust's point is sustained and we strike the requirement

that patrons complete an entry receipt, giving their

names, addresses, and other personal information, as

a condition of entry to the theater and peep show

booths.

[*255] Because we have stricken the requirement that

Adust collect patrons' identification information, we need

not consider Adust's complaint that the provision for

warrantless inspection of these receipts is improper.

D. Reporting Requirement

Adust next complains of the injunction's requirement

that:

9. The management, including any operators and

employees of the Defendant, upon suspecting or seeing

any sexual activity within the premises by any person,

whether alone or with another, shall immediately cause

the person or persons to stop, cease and desist such

activity, and shall immediately call law enforcement

authorities to report the commission of such activity.

Adust complains this language requires it to report

suspected sexual activity. We agree the paragraph as

written is confusing and, to the extent that it imposes a

requirement to report suspicions, overly broad. We find

the [**22] requirement to report violations of the

injunction's prohibitions appropriate, however, and

cannot conclude this paragraph is not reasonably

designed to further the County's interests.

Appellant's point is sustained. The first portion of the

paragraph is changed to read, "The management,

including any operators and employees of the

Defendant, upon detecting any sexual activity within the

premises by any person, . . . ."

E. Random Inspections

The order requires Adust to "consent to random

inspection by the appropriate law enforcement

authorities of the State." Adust challenges this provision

under the First and Fourth Amendments, to the extent

that it authorizes warrantless searches.

HN20 A warrant is generally required for authorities to

search portions of a commercial enterprise that are not

open to the public. See v. City of Seattle, 387 U.S. 541,

543, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967). HN21 A

warrantless search of commercial premises may be

reasonable when the business is "closely regulated." In

such a case the privacy interests of the owner are

weakened and the government interest in regulating

are higher. New York v. Burger, 482 U.S. 691, 700, 96 L.

Ed. 2d 601, [**23] 107 S. Ct. 2636 (1987). HN22 The

expectation of privacy that the owner of commercial

property enjoys may, in certain circumstances, be

adequately protected by regulatory schemes authorizing

warrantless inspections. United States v. Biswell, 406

U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972).

The Supreme Court has recognized this exception in

four industries. See Burger, 482 U.S. at 703-04

(automobile junkyards); Donovan v. Dewey, 452 U.S.

594, 598-99, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981)

(coal mining); Biswell, 406 U.S. at 316 (firearm and

ammunition sales); Colonnade Catering Corp. v. United

States, 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774

(1970) (liquor industry). Lower federal courts and some

996 S.W.2d 245, *254; 1999 Tex. App. LEXIS 3790, **19

Page 9 of 10
state courts have extended the exception to other

industries. 5

[**24] [*256] In Marshall v. Barlow's, Inc., 436 U.S. 307,

98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), the Court struck

down the administrative search provision of section

8(a) of the Occupational Safety and Health Act of 1970

because it failed to tailor the scope and frequency of the

inspections to the particular health and safety concerns

posed. Id. at 323. Also the Act did not provide any

standards to guide inspectors in the exercise of their

authority to search. Id. "HN23 Where Congress has

authorized inspection but made no rules governing the

procedures that inspectors must follow, the Fourth

Amendment and its various restrictive rules apply."

Colonnade, 397 U.S. at 77. In such cases, a warrant

may be necessary to protect the owner from the

"unbridled discretion [of] executive and administrative

officers," Barlow's, 436 U.S. at 323, by assuring him

that reasonable legislative or administrative standards

for conducting an inspection are satisfied with respect

to a particular establishment. Camara v. Municipal Ct.

of San Francisco, 387 U.S. 523, 538, 18 L. Ed. 2d 930,

87 S. Ct. 1727 (1967).

"HN24 The regulatory statute must perform the two

basic functions of a warrant: it must advise the owner of

the commercial [**25] premises that the search is being

made pursuant to law and has a properly defined scope,

and it must limit the discretion of the inspecting officers."

Burger, 482 U.S. at 703.

This provision of the injunction requires appellant to

"consent" to random inspections. The vagueness of the

order raises certain problems. The order does not limit

the "consent" to inspections to be conducted at any

time, the scope of the inspection, the area to be

inspected, whether the inspection is limited to the

business premises of appellant or could extend to other

places, or whether appellant's business records are to

be included. The absence of conditions on the

inspections violates the constitutional requirements for

such administrative searches. The injunction must have

"a properly defined scope, and it must limit the discretion

of the inspecting officers." Id. We conclude the provision

requiring appellant to consent to inspections by law

enforcement officers violates its Fourth Amendment

rights. That provision is stricken from the injunction.

Adust's point of error is sustained.

We sustain Adust's third point of error, MODIFY the

injunction and, as modified, AFFIRM.

J. BONNER DORSEY,

Justice

Opinion [**26] delivered and filed this 20th day of May,

1999.

5 Warrantless administrative searches have been upheld in the following contexts: commercial fishing, United States v. Raub,

637 F.2d 1205 (9th Cir. 1980); State v. Mach, 23 Wash. App. 113, 594 P.2d 1361 (1979); shipping, United States v.

Espinosa-Cerpa, 630 F.2d 328, 333-34 (5th Cir. 1980); pleasure boating, United States v. Whitmire, 595 F.2d 1303, 1312-13 &

n.22 (5th Cir. 1979), cert. denied, 448 U.S. 906, 65 L. Ed. 2d 1136, 100 S. Ct. 3048 (1980); but cf. United States v. Piner, 608

F.2d 358 (9th Cir. 1979) (Coast Guard's warrantless safety inspections of small pleasure vessels must be limited to daylight

hours unless there is articulable cause for nighttime boarding); water pollution-related activities, In re State Dep't of Envirl.

Protec., 177 N.J. Super. 304, 426 A.2d 534 (N.J. Super., App. Div. 1981); food and drug dealers, United States v. Schiffman,

572 F.2d 1137 (5th Cir. 1978); mining and mineral extraction, Marshall v. Texoline Co., 612 F.2d 935 (5th Cir. 1980); licensed

automobile dismantlers, used parts dealers, and second-hand goods dealers, People v. Woolsey, 90 Cal. App. 3d 994, 153 Cal.

Rptr. 746, 749-51 (4th Dist. 1979); State v. Barnett, 389 So. 2d 352 (La. 1980); People v. Tinneny, 99 Misc. 2d 962, 417 N.Y.S.2d

840, 845-46 (1979); taverns, State v. Williams, 84 N.J. 217, 417 A.2d 1046, 1048-50 (1980) (dictum); and massage parlors,

Pollard v. Cockrell, 578 F.2d 1002, 1014 (5th Cir. 1978).

Courts have struck down warrantless administrative inspections in the following contexts: trucking, United States v. Shaefer,

637 F.2d 200 (3d Cir. 1980); residential real estate, Hometown Co-Op. Apts. v. City of Hometown, 495 F. Supp. 55 (N.D. Ill.

1980) (point-of-sale inspection); adult book stores, State v. Huddleston, 412 A.2d 1148, 1156-57 (Del. Super. Ct. 1980); and

physicians' offices or clinics, Margaret S. v. Edwards, 488 F. Supp. 181, 214-17 (E.D. La. 1980); Hawaii Psychiatric Soc'y v.

Ariyoshi, 481 F. Supp. 1028, 1045-50 (D. Hawaii 1979).

996 S.W.2d 245, *255; 1999 Tex. App. LEXIS 3790, **23

Page 10 of 10
Page 1 

Caution 

As of: Mar 30, 2015 

Everett Cockrell, Appellant v. Jose Estevez, Appellee 

No. 04-87-00206-CV 

COURT OF APPEALS OF TEXAS, Fourth District, San Antonio 

737 S.W.2d 138; 1987 Tex. App. LEXIS 8440

September 16, 1987, Decided 

September 16, 1987, Filed 

PRIOR HISTORY: [**1] Appeal from the 

131st District Court of Bexar County, Trial Court No. 

86-CI-18182, Honorable Raul Rivera, Judge Presiding. 

COUNSEL: Lance E. Houghtling, Attorney for Appellant. 

Steven M. Gross, Attorney for Appellee. 

JUDGES: Rudy Esquivel, Associate Justice, Alfonso 

Chapa, Associate Justice, Shirley W. Butts, Associate 

Justice. 

OPINION BY: BUTTS 

OPINION 

 [*139] This is an appeal by writ of error from a 

default judgment in favor of plaintiff, Juan Estevez. The 

judgment granted specific performance on a contract to 

purchase real estate and awarded attorney's fees. In two 

points of error plaintiff challenges service of process and 

failure of the default judgment to conform to the pleadings. 

Plaintiff's petition misstated the name "Cockrell" as 

"Cockrall." The name "Cockrell" was properly spelled in 

the Earnest Money Contract being sued upon which was 

attached to the petition and incorporated in it by reference. The citation contains the same misspelling of defendant's name but was personally served on him with 

the petition attached. The defendant failed to answer or 

appear, and the default judgment was entered. 

The judgment referred to the Earnest Money Contract between the [**2] parties as "dated September 18, 

1986," when, in fact, the escrow agent dated the instrument on September 16, 1986, and the contract was executed on October 15, 1986. The pleadings of the plaintiff 

set out the date of execution as October 15, 1985. The 

default judgment also referred to and incorporated by 

reference the original Earnest Money Contract which has 

the agent's date as well as the correct date of execution. 

Almost four months after the judgment was originally signed, an order nunc pro tunc was granted on

plaintiff's motion to correct the spelling of the defendant's name. 

Plaintiff argues in his first point of error that the default judgment is invalid because the petition, citation 

and judgment misspelled defendant's name "Everett 

Cockrall," when the correct spelling is "Everett 

Cockrell." The second point is that error resulted because 

of non-conformity between the pleadings and the judgment and that the pleadings describe an earnest money 

contract dated October 15, 1985, while the judgment

describes an earnest money contract dated September 18, 

1986. 

A petition should serve its designed purpose "to define the issues at trial." Murray v. O & A Express, Inc. 

[**3] , 630 S.W.2d 633, 636 (Tex. 1982). In this case 

the earnest money contract is incorporated and attached 
Page 2 

737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, ** 

to the petition; it therefore accurately identifies the parties and provides the defendant "information sufficient to 

enable him to prepare a defense." Roark v. Allen, 633 

S.W.2d 804, 810 (Tex. 1982). In addition, we will apply 

the rule of idem sonans 1 because the two spellings 

[*140] of the name "Cockrell" appear to be nearly indistinguishable by their sounds when pronounced. 

1 The rule of idem sonans is that absolute accuracy in spelling a name is not required in a legal document or proceedings, either civil or 

criminal; that if a name, as spelled in the document, though different from the correct spelling 

thereof, conveys to the ear, when pronounced 

according to the commonly accepted method, a 

sound practically identical to the correct name as 

commonly pronounced the name thus given is a 

sufficient identification of the individual referred 

to, and no advantage can be taken of the clerical 

error. Dingler v. State, 705 S.W.2d 144, 145 

(Tex. Crim. App. 1984). 

 [**4] The Texas Supreme Court has approved in 

practice, the application of the rule of idem sonans in 

civil cases. Adams v. Grogan-Cochran Lumber Co., 

181 S.W.2d 582, 588-89 (Tex. Civ. App. -- Amarillo 

1944), aff'd, 186 S.W.2d 677, 143 Tex. 490 (1945). When 

an intended defendant is sued under an incorrect name, 

jurisdiction is proper after service on the defendant under 

the misnomer, but it must be clear that no one was misled. Orange Grove Independent School District v. Rivera, 679 S.W.2d 482, 483 (Tex. 1984), Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841 

(1939). 

A misnomer of a defendant does not render a judgment based on personal service, even one by default, 

void, provided the intention to sue the defendant actually 

served with citation is so evident from the pleadings and 

process that the defendant could not have been misled. R. 

McDONALD, TEX. CIV. PRACTICE § 6.04.1 (1982). 

It is significant that the defendant does not raise an 

issue of mistake in identity or lack of service or of improper service under the rules but raises only the claim 

that the improper spelling of his name voids the citation. 

The fact that defendant was personally [**5] served 

with citation distinguishes the case at hand from the cases relied upon by him. Two of those cases dealt not with 

personal citation but with citation by publication and 

citation by mail. Mega v. Anglo Iron & Metal Co. of 

Harlingen, 601 S.W.2d 501 (Tex. Civ. App. -- Corpus 

Christi 1980, no writ); Fleming v. Hernden, 564 S.W.2d 

157 (Tex. Civ. App. -- El Paso 1978, writ ref'd n.r.e.). In 

Nail v. Gene Biddle Feed Co., Inc., 347 S.W.2d 830

(Tex. Civ. App. -- Beaumont 1961, no writ), two different individuals were involved, a father and a son, the 

citation named the son but the father was served. Zimmerman v. First National Bank of Bowie, 235 S.W.2d 

720 (Tex. Civ. App. Fort Worth 1950, writ ref'd n.r.e.) 

concerned a writ of garnishment issued under a different 

name from the judgment upon which it was based. 

Again, substantially different situations from that of the 

present case. 

The purpose of citation is to give the court proper

jurisdiction of the parties and to provide notice to the 

defendant that he has been sued and by whom and for

what so that due process will be served and he will have 

an opportunity to appear and defend the action. 

Sgitcovich v. Sgitcovich [**6] , 150 Tex. 398, 241 

S.W.2d 142, 146 (1951), cert. denied, 342 U.S. 903, 72 S. 

Ct. 291, 96 L. Ed. 676 (1952), Stephenson v. Corporate 

Services, Inc., 650 S.W.2d 181, 184 (Tex. App. -- Tyler 

1983, writ ref'd n.r.e.), Bozeman v. Arlington Heights 

Sanitarium, 134 S.W.2d 350, 351-52 (Tex. Civ. App. -- 

Dallas 1939, writ ref'd). We hold that the misspelling of 

the defendant's name in the citation does not invalidate 

service of process. If defendant's misspelled name in the 

citation or return does not invalidate service of process, 

neither does such error require reversal of a default 

judgment. Salazar v. Tower, 683 S.W.2d 797, 799 (Tex. 

App. -- Corpus Christi 1984, no writ); Popkowsi v. 

Gramza, 671 S.W.2d 915, 917-18 (Tex. App. -- Houston 

[1st Dist.] 1984, no writ). 

As discussed above, there is no issue raised of lack 

of service of citation on the intended defendant "Everett 

Cockrell," nor does defendant claim he was misled by 

the misspelling of his name in this case. Since defendant 

was the proper one to be served with citation and was not 

misled by the error in the spelling of his name, the record 

does not reflect invalid service of process. Consolidated 

Underwriters, [**7] supra, 124 S.W.2d at 841. Appellant's first point of error is overruled. 

We find that the judgment in this case properly conforms to the pleadings, from which the court can determine the elements of plaintiff's cause of action and identify the relief sought. Mere formalities, minor defects, or 

technical insufficiencies will not invalidate a default 

judgment [*141] where the petition states a cause of 

action and gives "fair notice" to the opposing party of the 

relief sought. Stoner v. Thompson, 578 S.W.2d 679, 

682-83 (Tex. 1979). In a similar case it was held that 

discrepancies in dates were clerical errors and could not 

have surprised the defendant or prejudiced his rights. 

Pace Sports, Inc. v. Davis Brothers Publishing Co., 508 

S.W.2d 493, 494 (Tex. Civ. App. -- Waco 1974), aff'd, 

514 S.W.2d 247 (Tex. 1974). 

The earnest money contract for which specific performance was sought in this case was attached to plaintiff's petition and was incorporated in the petition and 
Page 3 

737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, ** 

also in the judgment by reference. When an inspection of 

an exhibit referred to in the pleadings shows facts contradictory to the pleadings, the exhibit, not the allegation 

of the pleadings, [**8] must control. Paul v. Houston 

Oil Co. of Texas, 211 S.W.2d 345, 353-54 (Tex. Civ. 

App. -- Waco 1948, writ ref'd n.r.e.). The agent's date on 

the earnest money contract, appears to be September 16, 

1986. It is obviously this date to which the judgment 

refers when describing the contract as dated on September 18, 1986. The same reasoning applies as to the discrepancy in the date of execution. Although the trial 

court did not act on the matter of the dates, the error is 

merely clerical and is subject to correction by the court at 

any time. See Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28 (Tex. 1971), Williams v. Pitts, 251 

S.W.2d 148, 151 Tex. 408 (1952). The court did enter an 

order nunc pro tunc correcting the spelling of the defendant's name almost four months after the original 

judgment. This was within the trial court's authority. 

Since both the petition and the judgment reference the 

earnest money contract, and since the petition seeks and 

the judgment orders specific performance on the contract 

and attorney's fees, there is no variance between the petition and the judgment. The second point of error is overruled. 

The judgment in the trial court is [**9] affirmed. 
Page 1 

2001 Tex. App. LEXIS 6913, * 

1 of 1 DOCUMENT 

Caution 

As of: Mar 30, 2015 

COLOR SMART, INC. and Rodrigo Garcia, Individually, Appellants v. Larry 

LITTLE, Jr., Appellee 

No. 04-00-00294-CV 

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO 

2001 Tex. App. LEXIS 6913

October 17, 2001, Delivered 

October 17, 2001, Filed 

NOTICE: [*1] PURSUANT TO THE TEXAS 

RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS 

AUTHORITY BY COUNSEL OR BY A COURT. 

PRIOR HISTORY: From County Court at Law No. 

3, Bexar County, Texas. Trial Court No. 254616. Honorable Irene Rios, Judge Presiding. 

DISPOSITION: Affirmed. 

CASE SUMMARY:

PROCEDURAL POSTURE: Appellants, a lessee and 

his company, filed a restricted appeal from a default 

judgment for $ 58,390 plus $ 4,000 attorney's fees rendered against them, arising out of a suit for breach of a 

lease agreement brought by appellee, lessor, in County 

Court at Law No. 3, Bexar County, Texas. 

OVERVIEW: The lessee contended the trial court erred 

in rendering a default judgment because (1) citation was 

not served by a person authorized under Tex. R. Civ. P. 

103; (2) the return of citation was defective because the 

verifications were defective; and (3) the return of citation 

was defective because his last name was misspelled on it. 

The parties did not dispute lessee's entitlement to bring a 

restricted appeal but disagreed regarding whether he was 

properly served. Because the list of authorized private 

process servers was on file with the clerks of the district 

and county courts, the appellate court took judicial notice 

of it and considered it to be part of the papers on file in 

the appeal. The returns were properly acknowledged 

before a notary public, thus they were not defective. The 

lessee's name was not actually misspelled, but the last 

letter was cut off. It was inconsequential. 

OUTCOME: The default judgment was affirmed. 

LexisNexis(R) Headnotes

Civil Procedure > Pretrial Judgments > Default > Default Judgments

Civil Procedure > Appeals > Records on Appeal

[HN1] A restricted appeal is a direct attack on a judgment. A direct attack on a judgment must: (1) be brought 

within six months after the trial court signs the judgment; 

(2) by a party to the suit; (3) who did not participate in 

the actual trial; and (4) the error complained of must be 

apparent from the face of the record. The face of the record consists of all the papers on file in the appeal, including the statement of facts. For a default judgment to 

withstand a direct attack, strict compliance with the Texas Rules of Civil Procedure regarding the issuance of 

citation, the manner and mode of service, and the return 

of process must be shown on the face of the record. No 

presumptions in favor of valid issuance, service, and 
Page 2 

2001 Tex. App. LEXIS 6913, * 

return are made, and the record must affirmatively show 

strict compliance with the rules. 

Civil Procedure > Pleading & Practice > Service of 

Process > General Overview

[HN2] Tex. R. Civ. P. 107 provides that the return of 

citation by an authorized person "shall be verified" but 

does not specify the manner of verification. "Verified" 

for purposes of rule 107 is defined as acknowledgment 

of the instrument before a notary public. 

Civil Procedure > Pleading & Practice > Service of 

Process > General Overview

[HN3] Strict compliance does not require "obeisance to 

the minutest detail." Spelling errors too minor to raise 

any doubt that the correct person was served are insufficient to invalidate service. 

COUNSEL: APPELLANT ATTORNEY: Kelly K. 

McKinnis, Attorney At Law, McAllen, TX. Ruben 

Ramirez, Law Office Of Ruben Ramirez, McAllen, TX. 

APPELLEE ATTORNEY: J. Philip Collier, Law Offices 

Of J. Philip Collier, San Antonio, TX. 

JUDGES: Opinion by: Catherine Stone, Justice. Sitting: 

Alma L. Lopez, Justice, Catherine Stone, Justice, Karen 

Angelini, Justice. 

OPINION BY: Catherine Stone 

OPINION 

This is a restricted appeal from a default judgment

for $ 58,390.61 plus $ 4,000 attorney's fees rendered 

against appellants Color Smart, Inc. and Rodrigo Garcia 

(collectively, Garcia) arising out of a suit for breach of a 

lease agreement brought by appellee Larry Little. 

[HN1] A restricted appeal is a direct attack on a 

judgment. Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex. 

App.--San Antonio 1999, no pet.). A direct attack on a 

judgment must: (1) be brought within six months after 

the trial court signs the judgment; (2) by a party to the 

suit; (3) who did not participate in the actual trial; and (4) 

the error complained of must be apparent from the face 

of the record. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). [*2] The 

face of the record consists of all the papers on file in the 

appeal, including the statement of facts. Id. For a default 

judgment to withstand a direct attack, strict compliance 

with the Texas Rules of Civil Procedure regarding the 

issuance of citation, the manner and mode of service, and 

the return of process must be shown on the face of the 

record. Bautista, 9 S.W.3d at 251. No presumptions in 

favor of valid issuance, service, and return are made, and 

the record must affirmatively show strict compliance 

with the rules. Id.

In three points of error, Garcia contends the trial

court erred in rendering a default judgment because (1) 

citation was not served by a person authorized under 

Rule 103 of the Rules of Civil Procedure; (2) the return 

of citation was defective because the verifications were 

defective; and (3) the return of citation on Rodrigo Garcia was defective because it shows citation was served on 

Rodrigo "Garci." The parties do not dispute Garcia's entitlement to bring a restricted appeal 1

 but disagree regarding whether he was properly served. 

1 It is evident from the record that Garcia is a 

party to the appeal, did not appear or file any motions, and brought the restricted appeal within six

months after the judgment was signed. 

 [*3] In point of error one, Garcia contends the 

person who served him was not authorized by law. Service is permitted by any person "authorized by law or by 

written order of the court who is not less than eighteen 

years of age." TEX. R. CIV. P. 103(2). He contends there 

is error on the face of the record because the record does 

not contain a written order authorizing Beatrice Cantu to 

serve process. Little refers this court to the approved list 

of process servers on file with the Bexar County District 

Clerk and Bexar County Clerk; Beatrice Cantu's name

appears on this list. Little contends there is no authority 

requiring that the record in each case must independently 

establish the authority of the private process server, and 

that Rule 103 does not require it. We agree, and decline 

to impose such a condition. Because the list of authorized private process servers is on file with the clerks of 

the district and county courts, we take judicial notice of it 

and consider it to be part of the papers "on file in the 

appeal." See Norman Communications, 955 S.W.2d at 

270. 

We overrule point of error one. 

In point of error two, Garcia challenges the manner

in which the returns [*4] of citation are verified, arguing they are defective because there is no basis to show 

how the person verifying the return has personal 

knowledge of its facts, nor is there any mention of the 

name of the person who is verifying the return. [HN2] 

Rule 107 provides that the return of citation by an authorized person "shall be verified" but does not specify 

the manner of verification. See TEX. R. CIV. P. 107. 

"Verified" for purposes of Rule 107 is defined as "acknowledgment of the instrument before a notary public." 

See Bautista, 9 S.W.3d at 251. The returns of service 
Page 3 

2001 Tex. App. LEXIS 6913, * 

here are properly acknowledged before a notary public, 

thus they are not defective in this regard. 

We overrule point of error two. 

In point of error three, Garcia contends that service 

was ineffective because one service was directed to "Rodrigo Garcia" but was served on "Color Smart, Inc. to 

registered agent Rodrigo Garcia" and the other was directed to "Rodrigo Garcia" but served on "Rodrigo Garci." The authority cited by Garcia is distinguishable because, unlike the case before us, the defendants were not 

personally served with citation. The petition served with 

the citation shows Color Smart, Inc. and [*5] Rodrigo 

Garcia as the defendants. We see no error in directing 

service to Color Smart's registered agent, Rodrigo Garcia, as was done here. We also see no error in the return 

showing personal service on Rodrigo "Garci." The margins of original papers are frequently cut off when copies 

are made; that appears to be what happened here--i.e., 

the final "a" in Garcia was cut off. Even if the original 

return actually shows "Garci" we are not persuaded this 

is error. Rodrigo Garcia's name is correctly spelled in the 

petition and in the notice of citation; it is only misspelled, if at all, in the return. [HN3] Strict compliance 

does not require "obeisance to the minutest detail." Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 

871 (Tex. App.--Houston [1st Dist.] 1995, no writ). 

Spelling errors too minor to raise any doubt that the correct person was served are insufficient to invalidate service. Ortiz v. Avante Villa at Corpus Christi, Inc., 926 

S.W.2d 608, 613 (Tex. App.--Corpus Christi 1996, writ 

denied); McDonough v. Williamson, 742 S.W.2d 737, 

740 (Tex. App.--Houston [14th Dist.] 1987, no writ). 

We overrule point of error [*6] three. 

We affirm the default judgment. 

Catherine Stone, Justice 
| | Neutral

As of: April 7, 2015 5:32 PM EDT

Cont'l Cas. Co. v. Guzman

Court of Appeals of Texas, Fourth District, San Antonio

January 21, 2009, Delivered; January 21, 2009, Filed

No. 04-07-00589-CV

Reporter

2009 Tex. App. LEXIS 338; 2009 WL 136926

CONTINENTAL CASUALTY COMPANY, Appellant v.

Rudolph GUZMAN, Appellee

Subsequent History: Petition for review denied by

Cont'l Cas. Co. v. Guzman, 2009 Tex. LEXIS 606 (Tex.,

Aug. 21, 2009)

Prior History: [*1] From the 45th Judicial District Court,

Bexar County, Texas. Trial Court No. 2006-CI-07475.

Honorable John D. Gabriel, Jr., Judge Presiding.

Disposition: AFFIRMED.

Core Terms

default judgment, bill of review, amended petition,

workers' compensation, original petition, face of the

record, registered agent, requirements, damages, pet,

trial court, jurisdictional, allegations, proceedings,

diligence, contends, notice

Case Summary

Procedural Posture

Appellant insurance carrier filed a restricted appeal to

challenge a decision from the 45th Judicial District

Court, Bexar County, Texas, which granted a bill of

review to appellee benefit claimant after a default

judgment was entered in favor of the carrier in a workers'

compensation case.

Overview

A no-answer default judgment reversed and set aside a

decision in a workers' compensation case. The claimant

then filed a petition for a bill of review, but no answer

was filed. A default judgment was entered, and the

carrier then filed a restricted appeal. In affirming, the

appellate court determined that there were four

elements that had to be met for a restricted appeal

under Tex. R. App. P. 30. There was no error on the face

of the record because service of an amended petition

was not required since no new causes of action were

pled. The claimant did not have to show the element of

due diligence in relation to his bill of review because he

was contending that substituted service was invalid.

There was sufficient proof in the record that the carrier

was served and that the trial court had jurisdiction. Also,

the claimant was required to file his bill of review petition

in the same court where the default judgment was

taken. The trial court did not err in failing to hear

evidence before granting a default in favor of the

claimant, and he was not required to comply with Tex.

Lab. Code Ann. §§ 410.258, 410.253(b) (2006). Finally,

the return of citation did not have to be verified.

Outcome

The decision was affirmed.

LexisNexis® Headnotes

Civil Procedure > Appeals > Notice of Appeal

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN1 In order to prevail in a restricted appeal, a party

must establish the following: (1) it filed notice of the

restricted appeal within six months after the final

judgment was signed; (2) it was a party to the underlying

litigation; (3) it did not participate in the underlying

proceedings and did not timely file any post-judgment

motions; and (4) error is apparent on the face of the

record. Tex. R. App. P. 26.1(c), 30.

Civil Procedure > ... > Pleadings > Amendment of

Pleadings > General Overview

Civil Procedure > ... > Pleadings > Service of Process >

General Overview
Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

HN2 In the context of a default judgment, Caprock

follows the general rule that only an amended petition

that seeks a more onerous judgment requires new

service.

Civil Procedure > Judgments > Relief From Judgments >

Bills of Review

HN3 In order to prevail on a bill of review, a petitioner

must prove (1) a meritorious defense (2) that he was

prevented from making by fraud, accident, or wrongful

act of the opposing party or official mistake (3) without

any fault or negligence of his own. However, a defendant

who is not served with process is entitled to a bill of

review without a further showing, because the

Constitution discharges the first element, and lack of

services establishes the second and third. And,

traditionally, a petitioner must also show he exercised

due diligence to pursue all adequate legal remedies

against a former judgment. But, while diligence is

required from properly served parties or those who

have appeared, those who have not been served have

no duty to act, diligently or otherwise.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

HN4 A default judgment on an unliquidated claim admits

all allegations of fact alleged in the petition except the

amount of damages.

Civil Procedure > Preliminary Considerations >

Jurisdiction > General Overview

Civil Procedure > ... > Service of Process > Proof of

Service > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Appeals > Record on Appeal

HN5 Jurisdictional facts must affirmatively appear on

the face of the record for a default judgment to withstand

scrutiny. For jurisdictional facts to affirmatively appear

on the face of the record, the record must show the

following: (1) the pleadings must allege facts that, if

true, would make the defendant responsible to answer;

and (2) there must be proof in the record that the

defendant was, in fact, served in the manner required

by statute. However, when a defendant has not

answered, a trial court acquires jurisdiction solely on

proof of proper service. Tex. R. Civ. P. 107 prohibits the

rendition of a default judgment unless proof of service

and return have been on file with clerk for ten days.

Further, the majority of courts of appeals have held that

a recital in a petition that names a person or entity as the

registered agent for service on the defendant is prima

facie evidence of that fact.

Civil Procedure > Preliminary Considerations > Venue >

Special Venue

Workers' Compensation & SSDI > Administrative

Proceedings > Judicial Review > General Overview

HN6 The statutory venue requirements set forth in the

Texas Workers' Compensation Act provide that suit for

judicial review of a Texas Workers Compensation

Commission decision must be filed in the county where

the employee resided at the time of injury. Tex. Lab.

Code Ann. § 410.252(b)(1) (2006).

Civil Procedure > Preliminary Considerations >

Jurisdiction > General Overview

Civil Procedure > Preliminary Considerations > Venue >

General Overview

Civil Procedure > Judgments > Relief From Judgments >

Bills of Review

HN7 A bill of review is a direct attack on a previous trial

court's judgment. And, a direct attack, which is brought

for the purpose of correcting a presumably incorrect

former judgment, may only be brought in the court

rendering the judgment. This is a jurisdictional

requirement, not merely a matter of venue.

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

HN8 Tex. R. Civ. P. 241 and 243 set forth the evidentiary

requirements for default judgment proceedings. Rule

241 provides that when a default judgment is rendered,

and the claim is liquidated and proved by an instrument

in writing, the court shall assess damages. There is no

requirement under Rule 241 for an evidentiary hearing

to be held. Rule 243 provides that when a cause of

action is unliquidated or not proved by an instrument in

writing, the court shall hear evidence as to damages.

Workers' Compensation & SSDI > Administrative

Proceedings > Judicial Review > General Overview

HN9 See Tex. Lab. Code Ann. § 410.258(a), (f) (2006).

2009 Tex. App. LEXIS 338, *1

Page 2 of 7
Workers' Compensation & SSDI > Administrative

Proceedings > Judicial Review > General Overview

HN10 Tex. Lab. Code Ann. § 410.258 states that the

Texas Workers Compensation Commission should

receive advance notice of the attack on its decision so

that the Commission may have thirty days to intervene

in the judicial proceedings. § 410.258(c).

Workers' Compensation & SSDI > Administrative

Proceedings > Judicial Review > General Overview

HN11 The Court of Appeals of Texas, Fourth District,

San Antonio, interprets Tex. Lab. Code Ann. § 410.258

to mean that only a party who has initiated a proceeding

under the Texas Labor Code is subject to its filing

requirements.

Evidence > Inferences & Presumptions > Presumptions

Governments > Legislation > Interpretation

HN12 In interpreting a statute, courts must look to its

plain and common meaning and presume that the

legislature intended the plain meaning of its words.

Workers' Compensation & SSDI > Administrative

Proceedings > Judicial Review > General Overview

HN13 See Tex. Lab. Code Ann. § 410.253.

Workers' Compensation & SSDI > Administrative

Proceedings > Judicial Review > General Overview

HN14 Tex. Lab. Code Ann. § 410.253 applies only to a

party seeking judicial review of a final Texas Workers

Compensation Commission decision.

Governments > Courts > Clerks of Court

Governments > Local Governments > Employees &

Officials

HN15 District clerks, like sheriffs and constables, are

considered "officers" -- persons who, by virtue of their

offices, are not required to verify returns.

Counsel: For APPELLANT: Deanne C. Ayers, Julie B.

Tebbets, Ayers & Ayers, Colleyville, TX.

For APPELLEE: Israel M. Reyna, Texas Riogrande

Legal Aid, Inc., Laredo, TX.

Judges: Opinion by: Karen Angelini, Justice. Sitting:

Karen Angelini, Justice Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice.

Opinion by: Karen Angelini

Opinion

MEMORANDUM OPINION

AFFIRMED

This is a restricted appeal arising out of a default

judgment that was entered in a bill of review case. We

affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Rudolph Guzman filed a workers' compensation claim,

asserting he had sustained an injury in the course of his

employment. After holding hearings, the Texas Workers

Compensation Commission ("TWCC") determined

Guzman had indeed sustained a compensable injury

for which Continental Casualty Company is liable.

Continental then appealed the TWCC decision to a

Bexar County district court. Continental then obtained a

no-answer default judgment against Guzman that

reversed and set aside the TWCC decision entitling

Guzman to workers' compensation benefits. After

[*2] discovering a default judgment had been taken

against him, Guzman filed an "Original Petition for Bill of

Review" in the Bexar County district court seeking to set

aside the default judgment against him. Guzman served

Continental through the CT Corporation, which Guzman

alleged in his original petition to be Continental's

registered agent for service. Continental did not file an

answer to the suit. Thereafter, Guzman filed a "First

Amended Original Petition for Bill of Review"; however,

he did not serve Continental with the amended petition.

Guzman then filed a motion for default judgment, which

was granted by the trial court based upon the amended

petition. Continental did not participate in the

proceedings, nor were the proceedings recorded by a

court reporter. Upon discovering that a default judgment

had been taken against it, Continental filed this restricted

appeal.

RESTRICTED APPEAL

A. Standard of Review

HN1 In order to prevail in its restricted appeal,

Continental must establish the following: (1) it filed

notice of the restricted appeal within six months after

the final judgment was signed; (2) it was a party to the

underlying litigation; (3) it did not participate in the

2009 Tex. App. LEXIS 338, *1

Page 3 of 7
underlying [*3] proceedings and did not timely file any

post-judgment motions; and (4) error is apparent on the

face of the record. TEX. R. APP. P. 26.1(c), 30;

Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848

(Tex. 2004). The only issue in this restricted appeal

concerns whether error is apparent on the face of the

record.

B. Service of Amended Petition

Continental contends that the failure of Guzman to

serve it with the amended petition amounts to error

apparent on the face of the record. To support this

contention, Continental relies on Caprock Construction

Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203

(Tex. App.--Dallas 1997, no writ). In Caprock, as in this

case, the plaintiff served the defendant with the original

petition, but did not serve the defendant with the

amended petition before taking a default judgment. Id.

at 204. The Dallas Court of Appeals concluded that, in

order for the default judgment to be upheld, the plaintiff

was required to serve the defendant with the amended

petition. Id. at 205. In so holding, the court noted that the

amended petition named an additional plaintiff, thus

exposing the defendant to additional liability. Id.

Later-decided cases have distinguished Caprock's

[*4] holding and refused to set aside default judgments

where the amended petition did not expose the

defendant to additional liability. In Rose v. Rose, 117

S.W.3d 84, 91 (Tex. App.--Waco 2003, no pet.), the

Waco Court of Appeals noted that HN2 Caprock

followed the general rule that only an amended petition

that seeks a more onerous judgment requires new

service. And, in Palomin v. Zarsky Lumber Co., 26

S.W.3d 690, 694 (Tex. App.--Corpus Christi 2000, pet.

denied), the Corpus Christi Court of Appeals similarly

distinguished Caprock, by explaining that service was

held to be improper in Caprock because the amended

pleading exposed the defendant to additional liability.

In this case, Continental argues that Guzman's

amended petition adds allegations of extrinsic fraud,

failure to execute official duties, and lack of adequate

legal remedy. Although the amended petition did, in

fact, contain these additional factual allegations, no

new causes of action were pled. Thus, the amended

petition did not seek a more onerous judgment than the

original petition. Both the original petition and the

amended petition requested that the trial court grant the

petition for bill of review, order a new trial, and [*5] set

aside the default judgment against Guzman. Therefore,

Guzman was not required to serve the amended petition

on Continental before taking the default judgment.

C. Bill of Review Elements

Continental argues that Guzman did not meet all

elements of a bill of review. More particularly,

Continental contends the record does not show Guzman

exercised due diligence.

HN3 In order to prevail on a bill of review, a petitioner

must prove (1) a meritorious defense (2) that he was

prevented from making by fraud, accident, or wrongful

act of the opposing party or official mistake (3) without

any fault or negligence of his own. Ross v. Nat'l Ctr. for

the Employment of the Disabled, 197 S.W.3d 795, 797

(Tex. 2006). However, "a defendant who is not served

with process is entitled to a bill of review without a

further showing, because the Constitution discharges

the first element, and lack of services establishes the

second and third." Id. And, traditionally, a petitioner

must also show he exercised due diligence to pursue all

adequate legal remedies against a former judgment.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751

(Tex. 2003). But, while diligence is required from

properly served parties or those [*6] who have

appeared, those who have not been served have no

duty to act, diligently or otherwise. Ross, 197 S.W.3d at

798.

HN4 A default judgment on an unliquidated claim admits

all allegations of fact alleged in the petition except the

amount of damages. Morgan v. Compugraphic Corp.,

675 S.W.2d 729, 731 (Tex. 1984). Because Continental

failed to answer the bill of review petition and Guzman

was awarded a default judgment, all assertions made in

the petition are thus admitted as fact. Guzman pled in

the bill of review proceeding that the substituted service

in the underlying workers' compensation suit filed by

Continental violated his right to constitutional due

process because he was not properly served. Guzman

also alleged that he was not properly served because

Continental either fraudulently or mistakenly

misinformed the court regarding Guzman's street

addresses for the purpose of serving him in the

underlying suit. Thus, the substituted service was

invalid, and Guzman's default judgment on his amended

petition stands without proof of the other elements of

the bill of review. See id. And, because the record

shows that Guzman did not know of the suit or the

default judgment in time to [*7] file an answer, a motion

for new trial, or an appeal, he had no duty to act

2009 Tex. App. LEXIS 338, *2

Page 4 of 7
diligently. See Ross, 197 S.W.3d at 798.

D. Jurisdiction

Continental alleges jurisdiction is not shown because

Guzman's original petition did not plead that Continental

is the workers' compensation carrier for Guzman or that

it engaged in business in Texas. Continental also

complains that there was no evidence that C.T.

Corporation was the registered agent for service for

Continental or that C.T. Corporation forwarded the

service to Continental.

HN5 Jurisdictional facts must affirmatively appear on

the face of the record for a default judgment to withstand

scrutiny. McKanna v. Edgar, 388 S.W.2d 927, 929-30

(Tex. 1965). For jurisdictional facts to affirmatively

appear on the face of the record, the record must show

the following: (1) the pleadings must allege facts that, if

true, would make the defendant responsible to answer;

and (2) there must be proof in the record that the

defendant was, in fact, served in the manner required

by statute. Whitney v. L & L Realty Corp., 500 S.W.2d

94, 95-96 (Tex. 1973). However, when a defendant has

not answered, a trial court acquires jurisdiction solely

on proof of proper service. [*8] Furst v. Smith, 176

S.W.3d 864, 868 (Tex. App.--Houston [1st Dist.] 2005,

no pet.); see TEX. R. CIV. P. 107 (prohibiting rendition

of default judgment unless proof of service and return

have been on file with clerk for ten days). Further, the

majority of courts of appeals have held that a recital in a

petition that names a person or entity as the registered

agent for service on the defendant is prima facie

evidence of that fact. See, e.g., Conseco Fin. Servicing

v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 672 (Tex.

App.--Houston [14th Dist.] 2002, no pet.); K-Mart

Apparel Fashions Corp. v. Ramsey, 695 S.W.2d 243,

246 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd

n.r.e.); Cox Mktg. v. Adams, 688 S.W.2d 215, 218 (Tex.

App.--El Paso 1985, no writ).

We find sufficient proof in the record that Continental

was served properly and that the court had jurisdiction.

In his original petition for bill of review, Guzman alleged

that Continental "is a corporation authorized to engage

in the business of workers compensation insurance as

defined by the Texas Workers' Compensation Act and

as allowed by the State Agency." And, Guzman alleged

that Continental had filed suit in Bexar County against

him, [*9] claiming the TWCC's final decision that he, a

workers' compensation claimant, was entitled to

workers' compensation benefits should be reversed.

Further, Guzman pled that an improper default judgment

had been taken against him. Guzman also set forth that

Continental "may be served with process by serving its

registered agent as follows: CT Corporation System,

350 North St. Paul Street, Dallas, Texas 75201."

The record contains a notice and citation, with

accompanying petition for bill of review, issued by the

Bexar County District Clerk, that was directed to CT

Corporation System as registered agent of Continental.

The record further shows that the notice and citation

were served on Continental through its registered agent,

CT Corporation System, by certified mail, return receipt

requested. The officer's return indicates the citation was

executed. We conclude that Guzman's allegations and

the proof of service contained in the record are sufficient

to satisfy the jurisdictional requirements.

E. Venue

Continental contends that Guzman was required to

comply with HN6 the statutory venue requirements set

forth in the Texas Workers' Compensation Act, which

provide that suit for judicial review [*10] of a TWCC

decision must be filed in the county where the employee

resided at the time of injury. See TEX. LAB. CODE

ANN. § 410.252(b)(1) (Vernon 2006). And, according to

Continental, because the face of the record does not

establish that Guzman resided in Bexar County at the

time of injury, the bill of review default judgment should

be reversed.

HN7 A bill of review, however, is a direct attack on a

previous trial court's judgment. Pursley v. Ussery, 937

S.W.2d 566, 567 (Tex. App.--San Antonio 1996, no

writ). And, a direct attack, which is brought for the

purpose of correcting a presumably incorrect former

judgment, may only be brought in the court rendering

the judgment. Id. at 567-68. This is a jurisdictional

requirement, not merely a matter of venue. Id. at 568.

Significantly, we note that the initial suit involving this

workers' compensation claim, which was an appeal of

the TWCC decision in Guzman's favor, was filed by

Continental in Bexar County. Because, as a jurisdictional

matter, Guzman was required to file his bill of review of

petition in the same court in which the default judgment

was taken, there is no need for the face of the record to

reflect Guzman's county of residence [*11] at the time of

the injury.

F. Sufficiency of the Record

2009 Tex. App. LEXIS 338, *7

Page 5 of 7
Continental also argues that the record from the bill of

review proceeding is incomplete and, therefore,

amounts to reversible error. Specifically, Continental

complains that no reporter's record was taken during

the proceeding, and the clerk's record contains no

affidavits or evidence supporting the granting of

Guzman's bill of review.

HN8 Texas Rules of Civil Procedure 241 and 243 set

forth the evidentiary requirements for default judgment

proceedings. See TEX. R. CIV. P. 241, 243. Rule 241

provides that when a default judgment is rendered, and

the claim is liquidated and proved by an instrument in

writing, the court shall assess damages. TEX. R. CIV. P.

241. There is no requirement under Rule 241 for an

evidentiary hearing to be held. Rule 243 provides that

when a cause of action is unliquidated or not proved by

an instrument in writing, the court shall hear evidence

as to damages. See TEX. R. CIV. P. 243. Guzman's

petition did not seek relief for damages, but rather

requested that the default judgment rendered against

him be set aside and vacated and that a new trial be

granted. The judgment entered in Guzman's favor

granted the [*12] relief requested. Thus, this case is

akin to a suit for liquidated damages as opposed to

unliquidated damages for which an evidentiary hearing

would be required; therefore, the trial court did not err in

failing to hear evidence before granting default judgment

in Guzman's favor.

G. Compliance with Labor Code

Continental argues that Guzman's failure to produce

evidence of compliance with Section 410.258 of the

Texas Labor Code renders the trial court's judgment

granting the bill of review void. Section 410.258

provides, in part, the following:

HN9 (a) The party who initiated a proceeding

under this subchapter or Subchapter G must

file any proposed judgment . . ., including a

proposed default judgment, with the division

not later than the 30th day before the date on

which the court is scheduled to enter the

judgment . . . .

(f) A judgment entered . . . without complying

with the requirements of this section is void.

TEX. LAB. CODE ANN. § 410.258(a),(f) (Vernon 2006)

(emphasis added). HN10 Section 410.258 also states

that the TWCC should receive advance notice of the

attack on its decision so that the commission may have

thirty days to intervene in the judicial proceedings. Id. §

410.258(c); see Casillas v. State Office of Risk Mgmt.,

146 S.W.3d 735, 738 (Tex. App.--El Paso 2004, no pet.)

[*13] .

HN11 We interpret Section 410.258 to mean that only a

party who has initiated a proceeding under the Labor

Code is subject to its filing requirements. See Nat'l Liab.

& Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)

(holding that HN12 in interpreting a statute, courts must

look to its "plain and common meaning" and "presume

that the Legislature intended the plain meaning of its

words."). Here, it was Continental, not Guzman, that

"initiated a proceeding" under the statute when it filed its

appeal of the TWCC decision in the district court. There

is nothing in the statute requiring a party seeking review

of a default judgment in a bill of review proceeding to

notify the TWCC of the attack on the trial court's action.

Guzman's bill of review does not attack the TWCC

decision, but rather requests that the default judgment

entered in favor of Continental be set aside so the

parties may return to the trial court to resolve

Continental's initial appeal of the TWCC decision. Thus,

Guzman's bill of review was not an initiation of a

proceeding under the Labor Code, and he was not

required to comply with Section 410.258.

Similarly, [*14] Continental contends the trial court

lacked jurisdiction to enter the default judgment against

it in the bill of review proceeding because Guzman

failed to comply with Section 410.253 of the Texas

Labor Code. That section provides the following:

HN13 A party may not seek judicial review

under Section 410.251 unless the party has

provided written notice of the suit to the division

as required by this section.

TEX. LAB. CODE ANN. § 410.253(b) (Vernon 2006).

We again interpret HN14 section 410.253 to apply only

to a party seeking judicial review of a final TWCC

decision. Because it was Continental, not Guzman,

seeking judicial review, Guzman was not required to

comply with Section 410.253(b) of the Texas Labor

Code.

H. Validity of Service of Process

Finally, Continental contends service of citation is

defective because the return of citation is not verified as

required by Rule 107 of the Texas Rules of Civil

Procedure. Verification, however, was not required in

2009 Tex. App. LEXIS 338, *11

Page 6 of 7
this instance. Service was accomplished by certified

mail, and the return was signed by the district clerk.

HN15 District clerks, like sheriffs and constables, are

considered "'officers' -- persons who, by virtue of their

offices, are not required [*15] to verify returns." Ins. Co.

v. Lejeune, 261 S.W.3d 852, 859 (Tex. App.--Texarkana

2008, pet. filed). Thus, Continental's assertion is without

merit.

CONCLUSION

We find no error in the trial court's granting of Guzman's

bill of review. We, therefore, affirm the trial court's

judgment.

Karen Angelini, Justice

2009 Tex. App. LEXIS 338, *14

Page 7 of 7
Page 1 

1 of 1 DOCUMENT 

Cited 

As of: Mar 30, 2015 

COTTON PATCH CAFE, INC., APPELLANT v. CARL McCARTY, APPELLEE 

NO. 2-05-082-CV 

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH 

2006 Tex. App. LEXIS 1833

March 9, 2006, Delivered 

PRIOR HISTORY: [*1] FROM THE 67TH 

DISTRICT COURT OF TARRANT COUNTY. 

CASE SUMMARY:

PROCEDURAL POSTURE: In a restricted appeal, 

appellant restaurant challenged a judgment of the 67th 

District Court of Tarrant County (Texas), which entered 

a no-answer default judgment against it in a suit brought 

by appellee patron for injuries sustained in a trip and fall 

accident. 

OVERVIEW: Although the trial court indicated that it 

was awarding the patron $ 50,000 for past and future 

medical expenses and $ 100,000 for past and future pain 

and suffering, physical impairment, and mental anguish, 

it did not thereafter itemize the latter award. The court 

held that the evidence was legally insufficient to support 

the award for past and future medical expenses because 

the patron neither offered an affidavit in compliance with 

Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (1997) nor 

proved that his medical expenses were reasonable and 

necessary through expert testimony. However, the 

patron's undisputed testimony, including that he fell and 

injured his knee, that he had sharp pain in his lower back 

and legs, that his foot swelled when he walked, that he 

now used a walker to move around his home, and that he 

was unable to have surgery to address his injuries resulting from the fall, constituted legally sufficient evidence 

to support the trial court's award of some monetary

damages for pain and suffering, physical impairment, 

and mental anguish, as well as factually sufficient evidence to support the trial court's award; thus, the award 

of $ 100,000 was not excessive. 

OUTCOME: The court affirmed the trial court's award 

of $ 100,000 for past and future pain and suffering, 

physical impairment, and mental anguish damages, but 

reversed the award of $ 50,000 for past and future medical expenses. The court suggested a remittitur of $

50,000. Unless a voluntary remittitur was filed, the court 

reversed the trial court's judgment and remanded the case 

to the trial court for a new trial on the issue of unliquidated damages. 

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Reviewability > General

Overview

Civil Procedure > Appeals > Standards of Review > 

Substantial Evidence > Sufficiency of Evidence

[HN1] A restricted appeal is a direct attack on a trial 

court's judgment that affords an appellant the same scope 

of review as an ordinary appeal, that is, review of the 

entire case. A direct attack on a judgment by restricted 

appeal must (1) be brought within six months after the 

trial court signs the judgment (2) by a party to the suit (3) 

who did not participate in the actual trial, and (4) the 

error complained of is apparent from the face of the rec-
Page 2 

2006 Tex. App. LEXIS 1833, * 

ord. Tex. R. App. P. 30. The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the reporter's record. 

Appellate review thus covers legal and factual sufficiency claims. 

Civil Procedure > Remedies > Damages > General 

Overview

Civil Procedure > Appeals > Standards of Review > 

Substantial Evidence > Sufficiency of Evidence

[HN2] In deciding a legal sufficiency challenge, an appellate court considers only the evidence and inferences 

which, when viewed in the light most favorable to the 

judgment, tend to support the judgment; the court disregards all evidence and inferences to the contrary and will 

overrule the challenge if more than a scintilla of evidence 

supports the finding. An assertion that the evidence is 

factually insufficient to support a fact finding means that 

the evidence supporting the finding is so weak or the 

evidence to the contrary is so overwhelming that the 

answer should be set aside and a new trial ordered. The 

court is required to consider all of the evidence in the 

case in making this determination, not just the evidence 

that supports the finding. In determining whether damages are excessive, the court applies the same test as for 

any factual insufficiency question, examining all the evidence in the record to determine whether sufficient evidence supports the damage award, remitting only if some 

portion is so factually insufficient or so against the great 

weight and preponderance of the evidence as to be manifestly unjust. 

Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments

Civil Procedure > Appeals > Standards of Review > 

Substantial Evidence > Sufficiency of Evidence

Evidence > Testimony > Lay Witnesses > General 

Overview

[HN3] A default judgment that is taken against a nonanswering defendant on an unliquidated claim operates 

as an admission of all facts set out in the plaintiff's petition except for the amount of damages. A causal nexus 

between the defendant's conduct and the event sued upon, or liability, is thus established in such a case, but 

proof of a causal nexus between the event sued upon and 

the plaintiff's injuries is still required. A challenge to the 

legal and factual sufficiency of the evidence to show this 

causal nexus is examined using the same standards applicable to any sufficiency challenge. Lay testimony is 

adequate to prove causation in those cases in which general experience and common sense will enable a layman 

to determine, with reasonable probability, the causal relationship between the event and the condition. 

Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments

Civil Procedure > Remedies > Damages > General 

Overview

[HN4] When a trial court does not itemize damages in its 

default judgment, it is impossible to determine what portion of the damages were ascribed to each ground of recovery claimed by a plaintiff. 

Civil Procedure > Appeals > Standards of Review > 

Substantial Evidence > Sufficiency of Evidence

Evidence > Procedural Considerations > Burdens of 

Proof > General Overview

Torts > Damages > Compensatory Damages > Medical 

Expenses

[HN5] A claim for medical expenses must be supported 

by evidence that such expenses were reasonably necessary for the plaintiff to incur as a result of her injuries. A 

plaintiff may prove that medical expenses are reasonable 

and necessary (1) by presenting expert testimony on the 

issues of reasonableness and necessity or (2) by presenting an affidavit prepared and filed in compliance with 

Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (1997). 

Proof of amounts charged or paid is not proof of reasonableness, and evidence that medical expenses are reasonable and customary is no evidence that the medical 

expenses were reasonably necessary. Section 18.001

provides in part that, unless a controverting affidavit is 

filed as provided by § 18.001, an affidavit that the 

amount a person charged for a service was reasonable at 

the time and place that the service was provided and that 

the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount 

charged was reasonable or that the service was necessary. 

Civil Procedure > Pretrial Judgments > Default > Relief From Default

Civil Procedure > Remedies > Damages > General 

Overview

Civil Procedure > Appeals > Remands

[HN6] When an appellate court sustains a no evidence 

point after an uncontested hearing on unliquidated damages following a no-answer default judgment, the appropriate disposition is a remand for a new trial on the issue 

of unliquidated damages. But the court may also suggest 

a voluntary remittitur of this amount. Tex. R. App. P. 

46.5. If the court finds that part of a damages verdict

lacks sufficient evidentiary support, its proper course is 

to suggest a remittitur of that part of the damages. 
Page 3 

2006 Tex. App. LEXIS 1833, * 

Torts > Damages > Compensatory Damages > Pain & 

Suffering > Award Calculations

[HN7] The process of awarding damages for amorphous, 

discretionary injuries such as pain and suffering or mental anguish is inherently difficult because the alleged 

injury is a subjective, unliquidated, nonpecuniary loss. 

The presence or absence of pain, either physical or mental, is an inherently subjective question because the process is not readily susceptible to objective analysis. Accordingly, the trier of fact is given broad discretion when 

determining such damages. 

Torts > Damages > Compensatory Damages > Pain & 

Suffering > Emotional & Mental Distress > Evidence

[HN8] An award for mental anguish damages must be 

supported either by direct evidence of the nature, duration, and severity of the plaintiff's mental anguish, 

thereby establishing a substantial interruption in the 

plaintiff's daily routine, or by circumstantial evidence of 

a high degree of mental pain and distress that is greater 

than mere worry, anxiety, vexation, embarrassment, or 

anger. Damages for future mental anguish are recoverable if there is a reasonable probability that they will be 

suffered in the future. 

Evidence > Procedural Considerations > Burdens of 

Proof > General Overview

Torts > Damages > Compensatory Damages > Pain & 

Suffering > Loss of Enjoyment

[HN9] In order to recover for physical impairment, a 

plaintiff must show that the effect of the physical impairment is substantial and extends beyond any pain, 

suffering, mental anguish, lost wages, or earning capacity. Damages for physical impairment are meant to compensate a plaintiff for an impairment of the capacity to 

enjoy life. 

Torts > Damages > Compensatory Damages > Pain & 

Suffering > Award Calculations

[HN10] Once the existence of some pain, mental anguish, and impairment has been established, there is no 

objective way to measure the adequacy of the amount

awarded as compensation, which is generally left to the 

discretion of the fact-finder. The process of awarding 

damages for amorphous; discretionary injuries such as 

pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary 

loss. The amounts awarded for such damages are necessarily speculative, and each case must be judged on its 

own facts. Even though each case must be judged on its 

own unique facts, it is proper to consider other approved 

awards in similar cases to determine if an award for pain 

and suffering is excessive. 

Civil Procedure > Pleading & Practice > Service of 

Process > Summons > Content & Form

Civil Procedure > Pretrial Judgments > Default > Relief From Default

[HN11] Strict compliance with the rules of service of 

citation must affirmatively appear in the record in order 

for a default judgment to withstand a direct attack. When 

the attempted service of process is invalid, the trial court 

acquires no personal jurisdiction over the defendant, and 

the default judgment is void. There are no presumptions 

in favor of valid issuance, service, and return of citation 

in the face of a direct attack on a default judgment, but 

strict compliance does not require obeisance to the

minutest detail. Tex. R. Civ. P. 107 requires a return to 

state when the citation was served, to state the manner of 

service, to be signed by the officer officially or by the 

authorized person, and to be verified if the return is by an 

authorized person. Tex. R. Civ. P. 107. 

COUNSEL: For APPELLANT: Paul A. Bezney, Tracy 

L. Stoker, ADKERSON, HAUDER & BEZNEY, P.C., 

Dallas, TX. 

For APPELLEE: Scott Nichol, MAUERHAN & ASSOCIATES, P.C., Azle, TX. 

JUDGES: PANEL B: LIVINGSTON, GARDNER, and 

WALKER, JJ. 

OPINION BY: SUE WALKER 

OPINION 

MEMORANDUM OPINION 

1

 

1 See TEX. R. APP. P. 47.4. 

I. INTRODUCTION 

The trial court entered a no-answer default judgment 

against Appellant Cotton Patch Cafe, Inc. (Cotton Patch) 

in a suit brought by Appellee Carl McCarty for injuries 

sustained in a trip and fall accident. Cotton Patch brings 

this restricted appeal and complains in two points that the 

evidence is legally and factually insufficient to show a 

causal nexus between McCarty's trip and fall and his 

injuries and damages, that the evidence is insufficient to 

support the awards for past and future medical expenses, 

pain and suffering, physical impairment, and mental anguish, and that the trial court lacked jurisdiction because 

of an error on the return of citation. We will affirm [*2] 
Page 4 

2006 Tex. App. LEXIS 1833, * 

in part and reverse and remand in part, subject to a voluntary remittitur. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

McCarty sued Cotton Patch on June 7, 2004, alleging that he suffered injuries and incurred damages caused 

by Cotton Patch's negligence. McCarty served Cotton

Patch on June 23, 2004, but Cotton Patch did not file an 

answer. On August 27, 2004, the trial court held a hearing on McCarty's request for a default judgment. A portion of the evidence at the default judgment hearing 

shows that McCarty and his wife entered the Cotton 

Patch Restaurant in Lake Worth on July 5, 2003. As the 

hostess was leading them to a table, McCarty tripped 

over a dustpan and fell on his right knee. McCarty went 

to a hospital the next day, received X-rays, and was referred back to his family physician. A subsequent MRI 

indicated that McCarty had a torn meniscus in his knee, 

and McCarty's doctor recommended that he have surgery 

on his knee and lower back. Through medical invoices, 

McCarty offered evidence that he has incurred medical 

expenses up until the time of the default judgment hearing totaling about $ 7,000. McCarty also offered evidence in the form of an estimate from a medical [*3] 

office indicating that the cost of future surgery for his 

knee would total about $ 14,677. McCarty testified that 

the back surgery would could cost about $ 25,000 and 

that he would likely need physical therapy after his knee 

surgery, which would cost "anywhere from several hundred dollars up." McCarty also described the extent to 

which the accident and injuries have affected him, which 

we detail in our sufficiency analysis below. 

The trial court ultimately entered an August 27, 

2004 final default judgment awarding McCarty $ 50,000 

for past and future medical expenses; $ 100,000 for past 

and future pain and suffering, physical impairment, and 

mental anguish; prejudgment and postjudgment interest; 

and costs. Cotton Patch filed a supersedeas bond on January 18, 2005, and a notice of restricted appeal on February 25, 2005. 

III. RESTRICTED APPEAL 

[HN1] A restricted appeal is a direct attack on the

trial court's judgment that affords an appellant the same 

scope of review as an ordinary appeal, that is, review of 

the entire case. In re E.K.N., 24 S.W.3d 586, 590 (Tex. 

App.--Fort Worth 2000, no pet.). A direct attack on a 

judgment by restricted appeal must (1) be brought [*4] 

within six months after the trial court signs the judgment 

(2) by a party to the suit (3) who did not participate in the 

actual trial, and (4) the error complained of is apparent 

from the face of the record. See TEX. R. APP. P. 30; 

Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 

269, 270, 41 Tex. Sup. Ct. J. 83 (Tex. 1997); E.K.N., 24 

S.W.3d at 590. The face of the record, for purposes of 

restricted appeal review, consists of all the papers on file 

in the appeal, including the reporter's record. Norman 

Commc'ns, 955 S.W.2d at 270. Our review thus covers 

legal and factual sufficiency claims, including the

amount of damages awarded and Cotton Patch's causal

nexus claim. See id.; Morgan v. Compugraphic Corp., 

675 S.W.2d 729, 731-32, 27 Tex. Sup. Ct. J. 501 (Tex. 

1984). Cotton Patch meets the first three requirements 

for a restricted appeal; only the fourth requirement is at 

issue--whether Cotton Patch demonstrated on the face of 

the record that the trial court erroneously entered a default judgment against it. 

IV. Sufficiency Challenges 

In its first issue, Cotton Patch argues that the evidence is legally and factually insufficient [*5] (1) to 

show a causal nexus between McCarty's trip and fall and 

his injuries and damages and (2) to support the trial 

court's award for unliquidated damages. 

A. Standards of Review 

[HN2] In deciding a legal sufficiency challenge, we

consider only the evidence and inferences which, when 

viewed in the light most favorable to the judgment, tend 

to support the judgment; we disregard all evidence and 

inferences to the contrary and will overrule the challenge 

if more than a scintilla of evidence supports the finding. 

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84, 

35 Tex. Sup. Ct. J. 881 (Tex. 1992). An assertion that the 

evidence is factually insufficient to support a fact finding 

means that the evidence supporting the finding is so 

weak or the evidence to the contrary is so overwhelming 

that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823, 9 Tex. 

Sup. Ct. J. 76 (Tex. 1965). We are required to consider 

all of the evidence in the case in making this determination, not just the evidence that supports the finding. 

Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07, 

41 Tex. Sup. Ct. J. 683 (Tex.), cert. denied, 525 U.S. 

1017, 142 L. Ed. 2d 450, 119 S. Ct. 541 (1998). [*6] In 

determining whether damages are excessive, we apply

the same test as for any factual insufficiency question, 

examining all the evidence in the record to determine 

whether sufficient evidence supports the damage award, 

remitting only if some portion is so factually insufficient 

or so against the great weight and preponderance of the 

evidence as to be manifestly unjust. Torrington Co. v. 

Stutzman, 46 S.W.3d 829, 851, 44 Tex. Sup. Ct. J. 225 

(Tex. 2000); Larson v. Cactus Util. Co., 730 S.W.2d 

640, 641, 30 Tex. Sup. Ct. J. 331 (Tex. 1987); Pope v. 

Moore, 711 S.W.2d 622, 624, 29 Tex. Sup. Ct. J. 412

(Tex. 1986). 

B. Causal Nexus 
Page 5 

2006 Tex. App. LEXIS 1833, * 

Generally, [HN3] a default judgment that is taken 

against a nonanswering defendant on an unliquidated

claim operates as an admission of all facts set out in the 

plaintiff's petition except for the amount of damages. 

Heine, 835 S.W.2d at 83; see also Argyle Mechanical, 

Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. 

App.--Dallas 2005, no pet.). A causal nexus between the 

defendant's conduct and the event sued upon, or liability, 

is thus established in such a case, but proof of a causal 

nexus between the event sued upon and the plaintiff's 

injuries [*7] is still required. 2 Morgan, 675 S.W.2d at 

731- 32; Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. 

App.--Houston [14th Dist.] 2002, no pet.). A challenge to 

the legal and factual sufficiency of the evidence to show 

this causal nexus is examined using the same standards 

applicable to any sufficiency challenge. Jackson, 77 

S.W.3d at 902. "Lay testimony is adequate to prove causation in those cases in which general experience and 

common sense will enable a layman to determine, with 

reasonable probability, the causal relationship between 

the event and the condition." Morgan, 675 S.W.2d at 

733. 

2 In Morgan, the supreme court stated, 

 

 The causal nexus between the 

event sued upon and the plaintiff's 

injuries is strictly referable to the 

damages portion of the plaintiff's 

cause of action. Even if the defendant's liability has been established, proof of this causal nexus 

is necessary to ascertain the 

amount of damages to which the 

plaintiff is entitled. This is true 

because the plaintiff is entitled to 

recover damages only for those 

injuries caused by the event made 

the basis of suit; that the defendant 

has defaulted does not give the 

plaintiff the right to recover for 

damages which did not arise from 

his cause of action. 

 

 Morgan, 675 S.W.2d at 732 

 [*8] Here, Cotton Patch contends that McCarty's 

testimony at the default judgment hearing did not establish that his knee and lower back injuries were "caused 

by" or "a result of" the trip and fall. McCarty's petition 

states that he "suffered severe injuries as a proximate 

result of [Cotton Patch's] negligence" and that "as a result of [McCarty's] injuries, [he] suffered . . . damages." 

McCarty testified that he never had any "knee problems" 

before the accident and that he had only a "minor back 

problem" twenty-five years earlier that required therapy, 

not surgery. McCarty testified that he fell and injured his 

knee and lower back. He testified that "as a result of [the 

trip and fall]," he went to the hospital, he received 

X-rays, he underwent an MRI of his knee and back, he 

needs surgery on his knee and back, he now uses a walker to help move about his house, and he has pain (back 

and both legs) from his injures that affect his "state of 

mind." We hold that the evidence is legally and factually 

sufficient to establish a causal nexus between McCarty's 

trip and fall (the event sued upon) and his injuries and 

damages. See Morgan, 675 S.W.2d at 731-32; Jackson, 77 S.W.3d at 902. [*9] 

C. Unliquidated Damages 

Although the trial court indicated at the conclusion 

of the default judgment hearing that it was awarding 

McCarty $ 50,000 for past and future medical expenses 

and $ 100,000 for past and future pain and suffering, 

physical impairment, and mental anguish, it did not

thereafter itemize the latter award. [HN4] When the trial 

court does not itemize damages in its default judgment, it 

is impossible to determine what portion of the damages 

were ascribed to each ground of recovery claimed by the 

plaintiff. Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex. 

App.--Fort Worth 2003, no pet.). We will therefore examine the record to determine whether legally sufficient 

evidence exists to establish each element of damage and 

whether the amount--a $ 100,000 global award for the 

total of all of these elements of damage--is excessive. 

Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex. App.--San 

Antonio 2004, no pet.) (recognizing that when trial court 

awards lump sum damage award, appellants are limited 

to challenging damage award as a whole); Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 80 (Tex. App.--1992, 

writ denied). 

1. Legal [*10] Sufficiency

A. Medical Expenses 

[HN5] A claim for medical expenses must be supported by evidence that such expenses were reasonably 

necessary for the plaintiff to incur as a result of her injuries. Jackson, 77 S.W.3d at 902; see also Walker v. 

Ricks, 101 S.W.3d 740, 746 (Tex. App.--Corpus Christi 

2003, no pet.). A plaintiff may prove that medical expenses are reasonable and necessary (1) by presenting 

expert testimony on the issues of reasonableness and 

necessity or (2) by presenting an affidavit prepared and 

filed in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. 

3

 Jackson, 77 S.W.3d at 

902; Rodriguez- Narrea v. Ridinger, 19 S.W.3d 531, 

532 (Tex. App.--Fort Worth 2000, no pet.). Proof of 

amounts charged or paid is not proof of reasonableness, 

and evidence that medical expenses are reasonable and 

customary is no evidence that the medical expenses were 
Page 6 

2006 Tex. App. LEXIS 1833, * 

reasonably necessary. Jackson, 77 S.W.3d at 902; Rodriguez-Narrea, 19 S.W.3d at 532. 

3 Section 18.001 provides in relevant part: 

 

 (b) Unless a controverting affidavit is filed as provided by this 

section, an affidavit that the 

amount a person charged for a 

service was reasonable at the time 

and place that the service was provided and that the service was 

necessary is sufficient evidence to 

support a finding of fact by judge 

or jury that the amount charged 

was reasonable or that the service 

was necessary. 

 

TEX. CIV. PRAC. & REM. CODE ANN. § 18.001

(Vernon 1997). 

 [*11] Here, the trial court awarded McCarty $ 

50,000 for past and future medical expenses, but 

McCarty neither offered an affidavit in compliance with 

civil practice and remedies code section 18.001 nor 

proved that his medical expenses were reasonable and 

necessary through expert testimony. The trial court admitted invoices indicating that McCarty had incurred $ 

7,000 in medical expenses and an estimate from a medical office showing that surgery on McCarty's knee would 

cost over $ 14,000, and McCarty testified that back surgery would cost about $ 25,000. This evidence is not 

proof of the reasonableness of these charges. See Smith 

v. Sw. Bell Tel. Co., 101 S.W.3d 698, 703 (Tex. 

App.--Fort Worth 2003, no pet.) (reasoning that medical 

bill records do not establish that medical expenses listed 

therein were reasonable). No evidence exists that 

McCarty's past medical expenses were reasonable or that 

the estimates for the suggested future surgeries were 

reasonable. Accordingly, we sustain Cotton Patch's first 

issue to the extent it argues that the evidence is legally 

insufficient to support the trial court's award for past and 

future medical expenses. 

The supreme court has instructed [*12] that [HN6] 

"when an appellate court sustains a no evidence point 

after an uncontested hearing on unliquidated damages 

following a no-answer default judgment, the appropriate 

disposition is a remand for a new trial on the issue of 

unliquidated damages." Heine, 835 S.W.2d at 86; see 

also Lefton v. Griffith, 136 S.W.3d 271, 280 (Tex.

App.--San Antonio 2004, no pet.) (remanding for new 

trial on economic damages and mental anguish damages, 

but affirming attorney fee award). But we may also suggest a voluntary remittitur of this amount. TEX. R. APP. 

P. 46.5; Formosa Plastics Corp. v. Presidio Eng'rs, 960 

S.W.2d 41, 51, 41 Tex. Sup. Ct. J. 289 (Tex. 1998) (recognizing two means by which a remittitur may be effected on appeal, including by suggestion by a court of 

appeals in lieu of ordering a new trial). If we find that 

part of a damages verdict lacks sufficient evidentiary 

support, our proper course is to suggest a remittitur of 

that part of the damages. Larson, 730 S.W.2d at 641; 

Pope, 711 S.W.2d at 624. Accordingly, we suggest a 

remittitur of $ 50,000, the amount the trial court awarded 

for past and future medical [*13] expenses. 

B. Pain and Suffering 

[HN7] The process of awarding damages for amorphous, discretionary injuries such as pain and suffering 

or mental anguish is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary 

loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. 

App.--Texarkana 2002, no pet.). The presence or absence 

of pain, either physical or mental, is an inherently subjective question because the process is not readily susceptible to objective analysis. Dawson, 107 S.W.3d at 

751. Accordingly, the trier of fact is given broad discretion when determining such damages. Sw. Tex. Coors, 

Inc. v. Morales, 948 S.W.2d 948, 951-52 (Tex. App.--San 

Antonio 1997, no writ). In this case, McCarty testified 

that he never had knee problems in the past and that he 

had only one episode of back problems twenty-five years 

ago. He testified that he fell on his right knee, causing 

injury to his knee and lower back. After the fall and a 

subsequent visit to the hospital and his family physician, 

an MRI of McCarty's knee indicated that he had a torn 

meniscus, and his doctor recommended that he have 

surgery on his knee [*14] and back and indicated that 

physical therapy after surgery would be required. 

McCarty further testified that he has a needle-like pain 

that extends from his lower back down both of his legs, 

almost to his knees. At the conclusion of the default 

judgment hearing, McCarty requested that the trial court 

award him $ 100,000 for his non-medical-expense damages. Based on McCarty's undisputed testimony, we hold 

that the evidence is legally sufficient to support the trial 

court's award of some monetary damages for past and

future pain and suffering. 

C. Mental Anguish 

[HN8] An award for mental anguish damages must 

be supported either by direct evidence of the nature, duration, and severity of the plaintiff's mental anguish, 

thereby establishing a substantial interruption in the 

plaintiff's daily routine, or by circumstantial evidence of 

a high degree of mental pain and distress that is greater 

than mere worry, anxiety, vexation, embarrassment, or 

anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444, 

38 Tex. Sup. Ct. J. 828 (Tex. 1995). Damages for future 
Page 7 

2006 Tex. App. LEXIS 1833, * 

mental anguish are recoverable "if there is a reasonable 

probability that they will be suffered in the future." 

Lubbock County v. Strube, 953 S.W.2d 847, 857 [*15] 

(Tex. App.--Austin 1997, pet. denied) (op. on reh'g). 

Here, McCarty testified that he has "AR stenosis" and 

"severe lung problems," that he is being treated for his 

lung condition, and that he is unable to have heart surgery because his oxygen level is "so bad." Because of 

these prior conditions (unrelated to the accident at the 

Cotton Patch restaurant), McCarty is unable to have the 

recommended surgery on his knee and back and resolve 

the pain (needle-like pain) and injuries associated therewith. McCarty testified that he would "definitely" have 

the surgeries on his knee and back if he were able to resolve his other health problems because he "can't live 

like this." McCarty further testified that his injuries have 

affected his state of mind because he is "taking so much 

medication" and that "it has a lot to do with my home 

life." He continued, "They give me Celebrex, viagra and 

stuff like that to help me, but it doesn't work. So the 

urologist is trying to talk me into some sort of pump 

now, so . . . ." Based on McCarty's undisputed testimony, 

which also indicated a reasonable probability of continued mental anguish in the future, we hold that the evidence is legally sufficient to [*16] support the trial 

court's award of some monetary damages for past and

future mental anguish. 

D. Physical Impairment 

[HN9] In order to recover for physical impairment, 

the plaintiff must show that the effect of the physical 

impairment is substantial and extends beyond any pain, 

suffering, mental anguish, lost wages, or earning capacity. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 772, 46 Tex. Sup. Ct. J. 1133 (Tex. 2003). Damages 

for physical impairment are meant to compensate a 

plaintiff for an impairment of the capacity to enjoy life. 

Santa Rosa Med. Ctr. v. Robinson, 560 S.W.2d 751, 762 

(Tex. Civ. App.--San Antonio 1977, no writ). McCarty, 

who is seventy-six and retired, testified that he is no 

longer able to work on his pool, that his foot swells up 

when he walks and "steps off a curb or something like 

that," and that he has to use a walker to move about his 

home, which he never used before. Based on McCarty's 

undisputed testimony, we hold that the evidence is legally sufficient to support the trial court's award of some 

monetary damages for past and future physical impairment. 

2. Factual Sufficiency 

Having determined that the evidence is legally sufficient [*17] to support the trial court's award for past 

and future pain and suffering, mental anguish, and physical impairment, we must now determine whether the 

evidence concerning these elements of damage is so factually insufficient that it is against the great weight and 

preponderance of the evidence as to be manifestly unjust. 

Pope, 711 S.W.2d at 624; Pentes, 840 S.W.2d at 80-81. 

However, [HN10] once the existence of some pain, 

mental anguish, and impairment has been established, 

there is no objective way to measure the adequacy of the 

amount awarded as compensation, which is generally left 

to the discretion of the fact-finder. Dawson, 107 S.W.3d 

at 751. The process of awarding damages for amorphous, 

discretionary injuries such as pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Id. The amounts 

awarded for such damages are necessarily speculative, 

and each case must be judged on its own facts. Id. 

Even though each case must be judged on its own 

unique facts, it is proper to consider other approved 

awards in similar cases to determine if an award for pain 

and suffering [*18] is excessive. HCRA of Texas, Inc. 

v. Johnston, 178 S.W.3d 861, 872 (Tex. App.--Fort Worth 

2005, no pet.). In HCRA, this court determined that an 

award of $ 75,000 was not excessive to compensate a

nursing home resident for physical pain and mental anguish suffered from decubitis ulcers and malnutrition. Id. 

In Sunbridge Healthcare Corp., the court held that an 

award of one million dollars was not excessive to compensate the plaintiff for physical pain and mental anguish 

suffered from injuries sustained in falls. Sunbridge 

Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex. 

App.--Texarkana 2005, no pet.). In Cresthaven Nursing 

Residence v. Freeman, the court held that an award of 

one million dollars--remitted down from four million 

dollars--was not excessive to compensate the plaintiff for 

physical pain and mental anguish suffered from two 

broken legs sustained in a fall. 134 S.W.3d 214, 

228-232 (Tex. App.--Amarillo 2003, no pet.). In Guzman 

v. Guajardo, the court held that an award of $ 600,000 

was not excessive to compensate a young boy who endured fifteen minutes of pain sustained in a car accident 

before dying. [*19] 761 S.W.2d 506, 512 (Tex. 

App.--Corpus Christi 1988, writ denied). 

In the instant case, McCarty's testimony, including

that he fell and injured his knee, that he has sharp pain in 

his lower back and legs, that his foot swells when he 

walks, that he now uses a walker to move around his

home, and that he is unable to have surgery in order to 

address his injuries resulting from the fall, constitutes 

factually sufficient evidence to support the trial court's 

award; the award of $ 100,000 is not excessive. Accordingly, we overrule Cotton Patch's first issue to the extent 

it argues that the evidence is legally and factually insufficient to support the trial court's awards for past and 

future pain and suffering, mental anguish, and physical 

impairment. 
Page 8 

2006 Tex. App. LEXIS 1833, * 

V. Service of Citation 

In its second issue, Cotton Patch argues that error is 

apparent on the face of the record because the return of 

citation contains an incorrect numeral which, consequently, precluded the trial court from acquiring jurisdiction over it. [HN11] Strict compliance with the rules of 

service of citation must affirmatively appear in the record in order for a default judgment to withstand a direct 

attack. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 

152, 37 Tex. Sup. Ct. J. 1216 (Tex. 1994). [*20] When 

the attempted service of process is invalid, the trial court 

acquires no personal jurisdiction over the defendant, and 

the default judgment is void. Westcliffe, Inc. v. Bear 

Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. 

App.--Dallas 2003, no pet.). There are no presumptions 

in favor of valid issuance, service, and return of citation 

in the face of a direct attack on a default judgment, but 

strict compliance does not require "obeisance to the 

minutest detail." Uvalde Country Club v. Martin Linen 

Supply Co., 690 S.W.2d 884, 885, 28 Tex. Sup. Ct. J. 423 

(Tex. 1985); Herbert v. Greater Gulf Coast Enters., 915 

S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995, 

no writ). 

The officer's return of citation states that service was 

made upon Cotton Patch's registered agent at "4825 W. 

Royal Ln, Irving, TX 75062" [Emphasis added.]. 

McCarty's petition and the citation, however, identify the 

registered agent's address as 4825 West Royal Lane, Irving, Texas "75063." [Emphasis added.]. Cotton Patch 

argues that this numerical discrepancy occurring only on 

the return of citation--the citation and the petition contain 

the correct digit--constitutes [*21] error on the face of 

the record. We cannot agree. Rule 107 of the Texas Rules 

of Civil Procedure requires the return to state when the 

citation was served, to state the manner of service, to be 

signed by the officer officially or by the authorized person, and to be verified if the return is by an authorized 

person. TEX. R. CIV. P. 107. The return clearly complies 

with the requirements of Rule 107, but simply contains 

an incorrect final numeral in the registered agent's zip 

code. The zip code in McCarty's petition correctly states 

that the registered agent's zip code is "75063," the citation contains the correct zip code on the same page as the 

officer's return, and Cotton Patch does not argue that it 

was not served. At the conclusion of the default judgment hearing, the trial court found that Cotton Patch had 

been served with citation and with a copy of McCarty's 

petition. Thus, because the return of citation complies 

with Rule 107, because Cotton Patch does not claim that 

it did not receive service, and because the citation and 

return show that citation was actually served on Cotton 

Patch's registered agent, we hold that the service [*22] 

was not defective so as to deprive the trial court of jurisdiction over Cotton Patch. See Regalado v. State, 934 

S.W.2d 852, 854 (Tex. App.--Corpus Christi 1996, no

writ) (reasoning that service of process will not be invalidated so long as the citation and return show with reasonable certainty that citation was served on defendant). 

We overrule Cotton Patch's second issue. 

VI. Conclusion 

We affirm the trial court's award of $ 100,000 for 

past and future pain and suffering, physical impairment, 

and mental anguish damages, but we reverse the trial 

court's award of $ 50,000 for past and future medical 

expenses. We suggest a remittitur of $ 50,000, the 

amount of the trial court's past and future medical expenses award. If, within fifteen days of the date of this 

opinion, McCarty files in this court a remittitur of $ 

50,000, then our subsequent judgment will reform the 

trial court's judgment in accordance with the remittitur 

and, as reformed, affirm that judgment. See TEX. R. 

APP. P. 46.5. Unless a voluntary remittitur is filed, we 

reverse the trial court's judgment and remand the case to 

the trial court for a new trial on the issue [*23] of 

unliquidated damages. 

SUE WALKER 

JUSTICE 
| | Caution

As of: April 7, 2015 5:35 PM EDT

Daniel v. Ft. Worth & R. G. R. Co.

Supreme Court of Texas

March 9, 1903, Decided

No. 1162

Reporter

96 Tex. 327; 72 S.W. 578; 1903 Tex. LEXIS 139

J. L. Daniel v. Fort Worth & Rio Grande Railway

Company

Prior History: [***1] Error to the Court of Civil Appeals

for the Second District, in an appeal from Erath County.

Disposition: Reversed and remanded.

Core Terms

damages, coal, depreciation, discomfort, property value,

railroad, noise, enjoyment, hoist

Case Summary

Procedural Posture

Plaintiff in error, the owner of a residential property,

sought review of an order from the Court of CivilAppeals

for the Second District (Texas), which affirmed a trial

court's judgment in favor of defendant in error, a railroad,

on the owner's action for the depreciation to the value of

his property caused by the railroad's coal hoist and

noise and coal dust that interfered with the owner's

enjoyment of his home.

Overview

The owner's house was located near the railroad's

tracks. The railroad constructed a platform and the coal

hoist adjacent to the tracks and the owner's property.

The owner filed an action for damages to his property

value and his family's discomfort, asserting that the dust

from the hoist entered his house and that noise from the

hoist kept his family awake at night. The trial court

instructed the jury on the reduction of property value but

refused the owner's instruction on damages for

discomfort. The jury delivered a verdict for the railroad,

and the owner appealed the refusal of his instruction on

discomfort damages. The appellate court affirmed, and

the owner appealed. The court reversed, holding that

the owner was not restricted to an instruction that

limited his recovery to damages for the reduction in

property value or discomfort. Although the jury found no

loss of property value, it could have found that the

owner was entitled to nuisance damages for the dust

and noise. The court relied on prior jurisprudence in

holding that the owner was entitled to an instruction on

both types of damages. The action for reduction

damages was not the owner's exclusive remedy.

Outcome

The court reversed the appellate court's decision. The

court remanded the owner's action for a new trial. The

court ordered the railroad to pay appellate costs.

LexisNexis® Headnotes

Real Property Law > Encumbrances > Adjoining

Landowners > General Overview

Real Property Law > Torts > General Overview

Real Property Law > Torts > Nuisance > General Overview

Real Property Law > ... > Nuisance > Remedies > General

Overview

Real Property Law > ... > Nuisance > Types of Nuisances >

Permanent Nuisances

Torts > ... > Types of Losses > Pain & Suffering > General

Overview

Torts > ... > Types of Damages > Property Damages >

General Overview

HN1 If a structure, permanent in character, is a nuisance

from which injury results to adjacent property, and by

which nuisance the health of the occupants is impaired

or the comfortable enjoyment of it is destroyed, the

injured party is not limited to compensation for the

impairment of the value of the property. To the contrary,

it is a rule of Texas law that full compensation may be
awarded in one suit to the owner for all damages

sustained from the same cause, and a party damaged

in the value of his property and in his health or the

enjoyment of the property, should be denied the right to

recover for either or both wrongs. The existence of a

permanent nuisance may cause injury by destroying

the comfort of a home and not cause loss in the market

value of the property, or it may cause injury to both,

hence adequate compensation must embrace all the

damage done and no more.

Headnotes/Syllabus

Headnotes

Railway -- Nuisance -- Coal Hoist Near Residence --

Damages.

The damages recoverable for the creation of a nuisance

near plaintiff's residence (the dust, noise, etc., from the

construction of a coal hoist and the supplying locomotive

engines with coal) are not limited to depreciation in the

market value of his property, but may include, along

with such depreciation, compensation for the personal

annoyance and discomfort suffered by plaintiff and his

wife in the use of their home.

Railway -- Cases Distinguished.

Rosenthal v. Railway Co., 79 Texas, 325; Baugh v.

Railway Co., 80 Texas, 56; Gainesville, H. & W. Railway

Co. v. Hall, 78 Texas, 169, and Denison & P. S. Railway

Co. v. O'Malley, 18 Texas Civ. App., 200, distinguished

from the present case.

Syllabus

Daniel sued the railway company and appealed from a

judgment for defendant. On its affirmance he obtained

writ of error.

Counsel: J. W. Parker, W. T. Carlton, and J. B. Keith,

for plaintiff in error. -- In an action by one against a

railroad for maintaining a nuisance near [***2] his

residence, the damages are not limited to the

depreciation of the property, but may include damages

for discomfort to the inhabitants of such house.

Baltimore & P. Railway Co. v. Fifth Baptist Church, 108

U.S., 317; Lahr v. Metropolitan El. Railway Co., 104 N.

Y., 268; Fifth National Bank v. N. Y. El. Railway Co., 118

U.S., 608; Pennsylvania Railway Co. v. Angel, 41 N. J.

Eq., 316; Illinois Cen. Railway Co. v. Grabill, 50 Ill., 241;

Hockaday v. Wortham, 22 Texas Civ. App., 419.

West, Chapman & West, for appellee. -- The court

charged the jury the proper measure of damages, and

did not err in refusing appellant's first special request.

Hockaday v. Wortham, 22 Texas Civ. App., 419;

Gainesville, H. & W. Railway Co. v. Hall, 78 Texas, 169;

Rosenthal v. T. B. & H. Railway Co., 79 Texas, 325; City

of San Antonio v. Mackey, 36 S. W. Rep., 760; Denison

& P. S. Railway Co. v. O'Malley, 18 Texas Civ. App., 200.

Judges: Brown, Associate Justice.

Opinion by: BROWN

Opinion

[*328] [**579] The Court of Civil Appeals made no

findings of fact in this case, but we have referred to the

record from which we make the following statement:

Defendant in error was operating a railroad through

[***3] the town of Stephenville, in Erath County, and J.

T. Daniel purchased a lot in said town, about 250 feet

west of the railroad track, on which he had resided for

some years when the defendant in error built a platform,

300 feet long, between the main track and plaintiff's

residence, between the two side tracks which were on

the west side of the main track. The railroad company

also erected near the platform a hoist, about twentyfive

feet high, by which the coal was raised from the platform

in iron buckets and dumped into the tenders of engines.

There was evidence which tended to prove, that the

coal dust from coal thus placed in the tender was

carried by the wind to and into plaintiff's residence and

settled upon his furniture, the walls, and upon the

outside of the house so as to produce discomfort to the

plaintiff and his family. The evidence also tended to

show that the noise caused by operating the hoist and

buckets, and the noise caused by the engines while

taking coal, prevented the plaintiff and his wife from

sleeping at night and disturbed and annoyed them in

their enjoyment of their home.

Plaintiff brought this suit against the railroad company

to recover the damages occasioned [***4] to him by the

depreciation of his property on account of the facts

before stated, which were alleged in the petition with

sufficient certainty and particularity, and the petition

also contained the following allegation: "That by reason

of the things hereinbefore alleged, plaintiff and his wife

96 Tex. 327, *327; 72 S.W. 578, **578; 1903 Tex. LEXIS 139, ***1

Page 2 of 4
have experienced and have been subjected to

continually, both day and night, great physical and

mental discomfort, and been vexed, harassed and

annoyed to a degree almost insupportable, to their

great and irreparable injury, and have been thereby

damaged to the further sum of $ 500." The court charged

the jury upon the right of the plaintiff to recover for the

depreciation in the value of his property, but refused to

submit to the jury the following special charge by the

plaintiff: "If you believe from a preponderance of the

evidence in this case that the plaintiff J. T. Daniel and his

wife have been personally annoyed and discomforted

in the use and enjoyment of their home by smoke or

coal dust, or by vibrating, grating or disagreeable noises

coming from defendant's coal yards and coal hoist into

or on the house and premises of plaintiff, then you will

find for plaintiff and award to him by [***5] your verdict

such damages as in your judgment will reasonably and

fairly compensate him for such annoyance or

discomfiture suffered by himself and wife, not to exceed

the amount sued for for annoyance." There was a

verdict and a judgment for the defendant, which was

affirmed by the Court of Civil Appeals.

The trial court committed error in refusing the special

charge requested by the plaintiff. If the plaintiff was

entitled to recover upon the evidence the right of

recovery is not limited to the depreciation in [*329] the

value of the property, but he may recover damages for

the discomfort of himself and family in the use of the

home caused by the erection and use of the coal hoists.

Baltimore & P. Railway Co. v. Fifth Baptist Church, 108

U.S., 317; Randolph v. Bloomfield, 77 Iowa, 52; Illinois

C. Railway Co. v. Grabill, 50 Ill., 241; Pierce v. Wagner,

29 Minn., 355; Brown v. Chicago & A. Railway Co., 80

Mo., 457; Pennsylvania Railway Co. v. Angel, 41 N. J.

Eq., 316.

In Baltimore & Potomac Railway Co. v. Fifth Baptist

Church, above cited, the Supreme Court of the United

States expresses the rule in this explicit language: "The

instruction of the court as to the estimate [***6] of

damages was correct. Mere depreciation of the property

was not the only element for consideration. That might,

indeed, be entirely disregarded. The plaintiff was entitled

to recover because of the inconvenience and discomfort

caused to the congregation assembled, thus necessarily

tending to destroy the use of the building for the

purposes for which it was erected and dedicated. The

property might not be depreciated in its salable or

market value, if the building had been entirely closed for

those purposes by the noise, smoke, and odors of the

defendant's shops. It might then, perhaps, have brought

in the market as great a price to be used for some other

purpose. But, as the court below very properly said to

the jury, the congregation had the same right to the

comfortable enjoyment of its house for church purposes

that a private gentleman has to the comfortable

enjoyment of his own house, and it is the discomfort and

annoyance in its use for those purposes which is the

primary consideration in allowing damages. As with a

blow on the face, there may be no arithmetical rule for

the estimate of damages. There is, however, an injury,

the extent of which the jury may measure." [***7] This

clear statement of the proposition renders argument in

its application to this case unnecessary. We have found

but one case that holds the contrary doctrine, --

Kempner and Wife v. Louisville, 14 Bush, 87, -- in which

the Court ofAppeals of Kentucky incidentally stated that

the plaintiffs in the case were not entitled to recover "for

loss of time on the part of the occupants on account of

sickness caused by the stagnant water, etc;" but the

question does not seem to have elicited discussion

from that court and no reason is assigned nor authority

cited in support of the decision.

In support of its opinion, the Court of Civil [**580]

Appeals cites: Rosenthal v. Railway Co., 79 Texas, 325;

Baugh v. Railway Co., 80 Texas, 56; Railway Co. v.

Hall., 78 Texas, 169, and Railway Co. v. O'Malley, 18

Texas Civ. App., 200.

In Rosenthal v. Railway Company, the right of recovery

for personal inconvenience on account of the noises

complained of was not in issue, but the plaintiff claimed

damages to the property because of faulty construction

of the roadbed and on account of noise, smoke, etc.,

and the court simply held that under the facts of that

case the depreciation in the value [***8] of the property

was the safest measure of damages.

In Baugh v. Railway Company, the plaintiff alleged

depreciation in [*330] the value of his property, but in

support of his claim set up matters of a character which

would have sustained an action for personal discomfort,

showing that the nuisance was temporary, and the court

held that under such allegations the plaintiff could not

recover for loss in the value of the property.

In Railway Company v. Hall, the action was for

depreciation in the value of property arising from smoke,

noise, etc. The railroad was constructed near to but not

on the land. The question arose under art. 1, sec. 17, of

the Constitution, it being claimed by the railroad

96 Tex. 327, *328; 72 S.W. 578, **579; 1903 Tex. LEXIS 139, ***4

Page 3 of 4
company, that the damage to the property could not be

recovered, there being no taking of it, but our Supreme

Court held that it could be recovered.

Railway Company v. O'Malley was a suit for damages

on account of the location of stock pens near the home

of plaintiff, and claim was made for the difference

between the value of the property before and after the

construction of the pens, upon the allegation that the

pens rendered the property uncomfortable for the

occupants as a home. [***9] There was no claim of

damages for personal discomfort, and the court held

that under the facts the damages to the property were

recoverable.

No case decided by this court justifies the conclusion

that, HN1 if a structure, permanent in character, is a

nuisance from which injury results to adjacent property,

and by which nuisance the health of the occupants is

impaired or the comfortable enjoyment of it is destroyed,

the injured party is limited to compensation for the

impairment of the value of the property. To the contrary,

it is a rule of our law that full compensation may be

awarded in one suit to the owner for all damages

sustained from the same cause, and we see no reason

why a party damaged in the value of his property and in

his health or the enjoyment of the property, should be

denied the right to recover for either or both wrongs.

The existence of a permanent nuisance may cause

injury by destroying the comfort of a home and not

cause loss in the market value of the property, or it may

cause injury to both, hence adequate compensation

must embrace all the damage done and no more.

The pleadings and evidence in this case do not present

any question of excuse for the railroad [***10] company

upon the ground that it was reasonably necessary that

the coal hoist should be located at that particular place,

we therefore do not pass upon that question.

It is ordered that the judgments of the District Court and

of the Court of Civil Appeals be reversed and that this

cause be remanded, and that the defendant in error pay

the costs of the Court of Civil Appeals and of this court.

Reversed and remanded.

96 Tex. 327, *330; 72 S.W. 578, **580; 1903 Tex. LEXIS 139, ***8

Page 4 of 4
Page 1 

Caution 

As of: Mar 30, 2015 

M. V. DAVIS V. McCRAY REFRIGERATOR SALES CORPORATION. 

No. 7801 

SUPREME COURT OF TEXAS 

136 Tex. 296; 150 S.W.2d 377; 1941 Tex. LEXIS 334

April 9, 1941 

SUBSEQUENT HISTORY: [***1] Rehearing 

Overruled May 7, 1941 

PRIOR HISTORY: Error to the Court of Civil Appeals for the Second District, in an appeal from Tarrant 

County. 

Suit by the McCray Refrigerator Sales Corporation 

against M. V. Davis upon a note and a contract for the 

purchase of a refrigerator from the plaintiff. Defendant 

filed a plea in abatement upon the grounds that plaintiff 

was a foreign corporation and had no permit to operate in 

the State. He also filed a cross action asking that the 

debt and lien be cancelled, for a return of the money paid 

on said refrigerator, and for damages for merchandise 

lost because of improper refrigeration. After hearing the 

plea of privilege and the merits of the case together, the 

court sustained the plea of privilege and dismissed the 

suit, without taking any action on the defendant's cross 

action. The Court of Civil Appeals reversed this judgment and rendered judgment for the refrigerator company for the balance of the note with interest and attorney's 

fee and for foreclosure of chattel mortgage, 140 S.W. 

(2d) 477, and defendant has brought error to the Supreme 

Court. 

Judgment of the Court of Civil Appeals is reversed 

and the appeal is dismissed. 

COUNSEL: Graves & Collins, [***2] of Fort Worth, 

for plaintiff in error. 

As the judgment does not dispose of defendant's cross 

action or any of the affirmative prayers of the defendant, 

it is not a final judgment and will not support an appeal. 

Chambers v. Jones, 101 S.W. (2d) 936; Clary Lbr. Co. v. 

Patterson, 28 S.W. (2d) 825; Kosse Natl. Bank v. Derden, 

36 S.W. (2d) 295. 

Greathouse & Swanger, of Fort worth, for defendant in 

error. 

In sustaining a plea in abatement that plaintiff was a foreign corporation and did not have a permit to do business 

in Texas was a judgment dismissing the cause and not 

one that plaintiff take nothing, and the court having tried 

the cause on its merits, the verdict of the jury entitled 

plaintiff to its debt and foreclosure. S.W. Smyth Co. v. 

Fort Worth Glass & Sand Co., 142 S.W. 1157; Ragness 

v. Oliver, 26 S.W. (2d) 357; W. W. Kimball Co. v. Parsons, 49 S.W. (2d) 821. 

OPINION BY: ALEXANDER 

OPINION 

 [**377] [*297] MR. CHIEF JUSTICE ALEXANDER delivered the opinion of the Court. 

Plaintiff sued defendant for the balance of the purchase price of a refrigerator and to foreclose a lien 

thereon. The defendant filed a plea in abatement to 

plaintiff's suit, on the ground that plaintiff [***3] was a 

foreign corporation without a permit to do business in 

Texas. The defendant also filed a cross-action to cancel 
Page 2 

136 Tex. 296, *; 150 S.W.2d 377, **; 

1941 Tex. LEXIS 334, *** 

plaintiff's debt and lien, and for judgment for the sum of 

$469.62, representing that part of the purchase price of 

the refrigerator previously paid by him, and the sum of 

$59.78 damages for merchandise lost for lack of proper 

refrigeration. The trial judge announced that he would 

hear the plea in abatement and the merits of the case together. After the jury had returned its verdict the court 

sustained the plea in abatement and dismissed plaintiff's 

suit. The judgment in no wise referred to or attempted 

to dispose of defendant's cross-action. Plaintiff appealed. 

It is a well settled rule in Texas, with certain statutory exceptions not here involved, that an appeal will lie 

only from a final judgment, and that a judgment in order 

to be final must dispose of all parties and of all issues 

involved in the suit. [**378] 3 Tex. Jur. 114. It is 

not essential that the judgment in express [*298] terms 

specifically dispose of each issue. That it does dispose 

of a particular issue may be inferred from other provisions thereof, provided such an inference follows [***4] 

as a necessary implication. Trammell v. Rosen, 106 Texas 132, 157 S.W. 1161. The judgment in this case does 

not expressly dispose of the defendant's cross-action, nor 

does it do so by necessary implication. The mere dismissal of plaintiff's suit did not have the effect of dismissing 

or otherwise disposing of the defendant's cross-action. 

Barrier v. Lowery, 118 Texas 227, 13 S.W. (2d) 688, par. 

1; Texas & P.R. Co. v. Fort Worth Street Ry. co., 75 

Texas 82, 12 S.W. 977; Jasper v. Mays Manufacturing 

Co., 139 S.W. (2d) 895; Jungbecker v. Huber, 101 Texas 

148, 105 S.W. 487; 15 Tex. Jur. 291. This is so because 

if the court had intended to merely sustain the plea in 

abatement and dismiss plaintiff's suit, and had intended 

to retain the defendant's cross-action for further consideration, it would have entered the very judgment that was 

entered in this case. The mere failure of the judgment to 

refer to defendant's cross-action was not sufficient in 

itself to raise an infrerence that it was thereby intended to 

dispose of the cross-action. In other words, where the 

court dismisses plaintiff's suit, and does not refer to or 

mention the defendant's cross-action, the judgment does 

not dispose [***5] of the cross-action expressly or by 

implication, and is therefore not such a final judgment as 

will authorize an appeal therefrom. 3 Tex. Jur., p. 121, 

sec. 58; 4 C.J.S., p. 190, sec. 95; Southern Trading Co. of 

Texas v. Feldman (Com. App.), 259 S.W., p. 566, par. 2; 

American Road-Mach. Co. v. City of Crockett, 49 S.W. 

251; Anderson, Evans & Evans v. Smith, 167 S.W. 765; 

Minnock v. Garrison, 144 S.W. (2d) 328; National Radio 

Exchange v. Calhoun, 52 S.W. (2d) 946; Kosse National 

Bank v. Derden, 36 S.W. (2d) 295; Rouser v. Hogue, 189 

S.W. 349; Nunez v. McElroy, 184 S.W. 531; Partridge v. 

Wooton, 137 S.W. 412; Brown v. Wofford, 167 S.W. 764; 

Nalle v. Harrell, 118 Texas 149, 12 S.W. (2d) 550. 

The appeal in this case was from an order entered on 

July 26, 1939. We find among the papers in the case a 

supplemental transcript in which it is recited that on November 6, 1939, at a subsequent term of court, the court 

entered a nunc pro tunc order in which the previous

judgment of date July 26, 1939, was withdrawn and a

new judgment entered dismissing plaintiff's suit and 

denying defendant any recovery on his cross-action.

However, the appeal in this case was not from the nunc 

pro tunc order [***6] of date November 6, 1939. The 

appeal bond was filed on August 17, 1939, long before 

the entry of the nunc pro [*299] tunc order, and recites 

that the appeal was taken from the judgment of date July 

26, 1939. 

It is well settled in this State that when a judgment is 

pronounced at one term and not entered of record at that 

term but is entered nunc pro tunc at the succeeding term, 

the right of appeal from such nunc pro tunc order dates 

from the entry thereof. Peurifoy v. Wiebusch, 125 Texas 

207, 82 S.W. (2d), p. 624, par. 1, and authorities there 

cited; Partridge v. Wooton, 137 S.W. 412, 414. It is also 

well settled that an appeal bond field at a previous term 

of court, and prior to the entry of the nunc pro tunc order 

at a subsequent term of court, is premature and ineffective to perfect an appeal from such nunc pro tunc order. 

Cooper v. Carter, 233 S.W. 1020; Burnette v. Miracle, 

295 S.W. 214; Gilmore v. Ladell, 34 S.W. (2d) 919; Stinnett v. Dudley, 277 S.W. 801; Shields v. Amicable Life 

Insurance Co., 287 S.W. 293; Panhandle Construction 

Co. v. Lindsey, 123 Texas 613, 72 S.W. (2d) 1068; Texas 

& N.O.R. Co. v. Texas Tram & Lumber Co., 110 S.W., p. 

140, par. 1. Consequently it [***7] cannot be said that 

the appeal in this case was from the nunc pro tunc order 

of date November 6th, in which the defendant's 

cross-action was for the first time disposed of. 

Since the judgment sought to be appealed from did 

not dispose of the defendant's cross-action, and was 

therefore not a final judgment, the Court of Civil Appeals acquired no jurisdiction of the appeal. 

The judgment of the Court of Civil Appeals is reversed, and the appeal is dismissed. 

Opinion delivered April 9, 1941. 
| | Neutral

As of: April 7, 2015 5:38 PM EDT

Day v. Tripp

Court of Appeals of Texas, Third District, Austin

July 29, 1999, Filed

NO. 03-97-00480-CV

Reporter

1999 Tex. App. LEXIS 5550; 1999 WL 546869

Jim and Delores Day, Appellants v. Mary Tripp, Fred

Jones, Lloyd Adams, David Ward and Catherine Ward,

Appellees

Notice: [*1] PURSUANT TO THE TEXAS RULES OF

APPELLATE PROCEDURE, UNPUBLISHED

OPINIONS SHALL NOT BE CITED AS AUTHORITY

BY COUNSEL OR BY A COURT.

Subsequent History: Motion to Increase Depoist in

Lieu of Supersedeas Bond Dismissed as Moot March 9,

2000.

Prior History: FROM THE DISTRICT COURT OF

TRAVIS COUNTY, 167TH JUDICIAL DISTRICT. NO.

94-00122, HONORABLE SUZANNE COVINGTON,

JUDGE PRESIDING.

Disposition: Affirmed in Part; Reversed and Rendered

in Part.

Core Terms

appellees, Days, damages, nuisance, trespass,

invasion, trial court, privacy, discomfort, measure of

damages, cause of action, market value, annoyance,

shooting range, noise, permanent injunction, injury to

property, use and enjoyment, personal injury, property

damage, no evidence, properties, complain, amounts

Case Summary

Procedural Posture

Appellants sought review of a judgment from the District

Court of Travis County, 167th Judicial District (Texas),

in favor of appellees in appellees' action for creating a

private nuisance, trespass, and invasion of privacy.

Appellees brought a cross-point.

Overview

Because appellants were operating a rifle range,

appellee neighbors brought suit for creation of a private

nuisance, trespass, and invasion of privacy. A jury

awarded appellees damages, and the trial court denied

remittitur. On appeal by appellants and one cross-point

by appellees, the court affirmed with respect to the

damages for operating a private nuisance because the

charge submitted to the jury included personal injury as

well as property damage. The court reversed with

respect to the trespass damages because there was no

evidence conforming to the proper measure of these

damages. The court reversed with respect to the

damage award for the invasion of privacy claim to avoid

double recovery with the private nuisance award. The

trial court did not abuse its discretion in denying remittitur

to appellants or in denying appellees a permanent

injunction. Appellees were not entitled to an injunction

merely because the rifle range amounted to a nuisance.

Appellees' claims for nuisance and invasion of privacy

were not barred by Tex. Gov't Code Ann. § 250.001(c),

because the bar was predicated on the existence of a

local government ordinance, not on the non-existence

of an ordinance.

Outcome

The court reversed the trial court's judgment insofar as

it awarded damages for trespass and invasion of privacy

because appellees presented no evidence of the

measure of damages for trespass and the nuisance

damages encompassed the invasion of privacy

damages. The court overruled appellees' cross-point

because the trial court did not abuse its discretion by

refusing their application for a permanent injunction.

LexisNexis® Headnotes

Real Property Law > Torts > Nuisance > General Overview

Real Property Law > ... > Nuisance > Types of Nuisances >

Private Nuisances
HN2 A private nuisance is a nontrespassory invasion of

another's interest in the private use or enjoyment of

land. If the invasion is unintentional, it is actionable if

caused by conduct that is negligent or reckless, or

results from other conduct that is culpable because

abnormal and out of place in its surroundings. If the

invasion is intentional, liability depends upon whether

the invasion is unreasonable. An invasion is intentional

if (1) the actor acts for the purpose of causing it, or (2)

the actor knows that it is resulting or is substantially

certain to result from his conduct.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Real Property Law > Torts > General Overview

Real Property Law > Torts > Nuisance > General Overview

Real Property Law > ... > Remedies > Damages > General

Overview

Real Property Law > ... > Remedies > Damages >

Measurement of Damages

Real Property Law > ... > Nuisance > Types of Nuisances >

Private Nuisances

Torts > Remedies > Damages > General Overview

Torts > ... > Types of Damages > Property Damages >

Measurements

HN1 On a cause of action for private nuisance, a

plaintiff is entitled to recover damages, if proved, for

either or both of two kinds of injury. The first is a

plaintiff's right to recover damages for any interference

with the owner's use and enjoyment of the property

caused by the nuisance. In legal contemplation, this

amounts to an injury to the plaintiff's property. The

attendant measure of damages is the depreciation, if

any, in the market value of the plaintiff's property caused

by the nuisance. This is determined ordinarily by the

difference in market values immediately before and

immediately after the injury occurred, if the injury is

permanent, considering any use that may be made of

the land. Such an injury to the plaintiff's use and

enjoyment of the property is not itself a personal injury.

Real Property Law > Torts > General Overview

Real Property Law > Torts > Nuisance > General Overview

Real Property Law > Torts > Nuisance > Elements

Real Property Law > ... > Nuisance > Remedies > General

Overview

Real Property Law > ... > Remedies > Damages > General

Overview

Real Property Law > ... > Remedies > Damages >

Measurement of Damages

Real Property Law > ... > Damages > Types of Damages >

Compensatory Damages

Torts > ... > Types of Damages > Property Damages >

Measurements

HN3 In a nuisance action, a plaintiff may allege, prove,

and recover damages for a personal injury caused by

the nuisance, such as discomfort, annoyance, and injury

to health. The plaintiff may recover damages for

discomfort and annoyance even absent depreciation of

the real property caused by the nuisance. The measure

of damages for discomfort and annoyance is the amount

of money necessary to provide the plaintiff reasonable

and fair compensation for such personal injury.

Civil Procedure > ... > Jury Trials > Jury Instructions >

General Overview

Torts > Remedies > Damages > General Overview

HN4 Concerning damages, the trial court is authorized

to submit to the jury only those elements of damages for

which evidence was introduced.

Real Property Law > Torts > Trespass to Real Property

Torts > Premises & Property Liability > Trespass to Real

Property > General Overview

Torts > Premises & Property Liability > Trespass to Real

Property > Elements

HN5 The elements of a cause of action for trespass are:

(1) an intentional (2) entry on land (3) in the possession

of another.

Real Property Law > Torts > General Overview

Real Property Law > Torts > Trespass to Real Property

Torts > Remedies > Damages > General Overview

Torts > ... > Compensatory Damages > Types of Losses >

Permanent Injuries

Torts > Premises & Property Liability > Trespass to Real

Property > General Overview

Torts > ... > Trespass to Real Property > Remedies >

General Overview

Torts > ... > Remedies > Damages > General Overview

Torts > ... > Remedies > Damages > Measurement of

Damages

HN6 The damages recoverable for trespass are various,

but where the suit is for permanent injury to land, the

1999 Tex. App. LEXIS 5550, *1

Page 2 of 8
measure of damages is the difference in market value

of the land immediately before and immediately after

the trespass.

Governments > Local Governments > Claims By & Against

Real Property Law > Torts > Nuisance > General Overview

HN7 Tex. Gov't Code Ann. § 250.001(c) declares as

follows: A person may not bring a nuisance or similar

cause of action against a sport shooting range based on

noise if the sport shooting range is in compliance with all

applicable municipal and county ordinances, orders,

and rules regulating noise.

Real Property Law > Torts > Nuisance > General Overview

HN8 By its express terms, the statutory bar of Tex. Gov't

CodeAnn. § 250.001(c) is predicated on the applicability

and, therefore, the existence of a local-government

ordinance, order, or rule, rather than the non-existence

of such an enactment.

Judges: Before Chief Justice Aboussie, Justices Kidd

and Powers *

Opinion by: MARILYN ABOUSSIE

Opinion

Jim Day and Delores Day appeal from a judgment

recovered against them by appellees Mary Tripp, Fred

Jones, Lloyd Adams, 1 David Ward, and Catherine

Ward. We will reverse the judgment in part, render

judgment in the part reversed, and affirm the balance of

the judgment.

THE CONTROVERSY

[*2] The Days have, since December 1993, owned and

operated a rifle and pistol range on seventeen acres

adjacent to tracts of land owned by appellees and upon

which they have built homes. Contending that daily

gunfire on the range shook the walls and windows of

their homes, that hundreds of bullets from the range

entered their properties, and that they were otherwise

affected adversely by the Days' operation of the range,

appellees sued the Days on various causes of action

discussed below. Following a jury trial, appellees

recovered judgment on the verdict in the following

amounts and on the actions indicated:

Appellee Nuisance Trespass Invasion of Totals

Privacy

Fred Jones $ 25,000 $ 500 $ 500 $ 26,000

Lloyd Adams 30,000 -0- 1,000 31,000

Mary Tripp 10,000 -0- -0- 10,000

David and Catherine

Ward 16,000 4,000 500 20,500

Totals $ 81,000 $ 4,500 $ 2,000 $ 87,500

The Days appeal on the issues discussed hereafter.

NUISANCE

The appellees alleged and recovered judgment on their

pleadings that the Days' operation of the range

amounted to a private nuisance. 2 HN1 On that cause of

action, appellees were entitled to recover damages,

[*3] if proved, for either or both of two kinds of injury.

The first is a plaintiff's right to recover damages for any

interference with the owner's use and enjoyment of the

property caused by the nuisance. In legal contemplation,

this amounts to an injury to the plaintiff's property. The

attendant measure of damages is the depreciation, if

* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. §

74.003(b) (West 1998).

1

Lloyd Adams died after the appeal was perfected. We will "adjudicate the appeal as if all parties were alive." Tex. R. App.

P. 7.1(a).

2 HN2 A private nuisance is a nontrespassory invasion of another's interest in the private use or enjoyment of land. If the

invasion is unintentional, it is actionable if caused by conduct that is negligent or reckless, or results from other conduct that is

culpable because abnormal and out of place in its surroundings. If the invasion is intentional, liability depends upon whether the

invasion is unreasonable. An invasion is intentional if (1) the actor acts for the purpose of causing it, or (2) the actor knows that

it is resulting or is substantially certain to result from his conduct. See City of Princeton v. Abbott, 792 S.W.2d 161, 166 (Tex.

App.--Dallas 1990, writ denied) (op. on reh'g); City of Texarkana v. Taylor, 490 S.W.2d 191, 194 (Tex. Civ. App.--Texarkana

1972, writ ref'd n.r.e.); Restatement (Second) of Torts § 825 (1965).

1999 Tex. App. LEXIS 5550, *1

Page 3 of 8
any, in the market value of the plaintiff's property caused

by the nuisance. This is determined ordinarily by the

difference in market values immediately before and

immediately after the injury occurred, if the injury is

permanent, considering any use that may be made of

the land. Such an injury to the plaintiff's use and

enjoyment of the property is not itself a "personal injury."

See Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984);

Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978); City

of Abilene v. Downs, 367 S.W.2d 153, 160-61 (Tex.

1963); Vestal v. Gulf Oil Corp., 149 Tex. 487, 235

S.W.2d 440, 441-42 (Tex. 1951).

[*4] HN3

In the same nuisance action, however, the plaintiff may

also allege, prove, and recover damages for a personal

injury caused by the nuisance, such as discomfort,

annoyance, and injury to health. See, e.g., Vann v.

Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 563

(Tex. 1936) ("impairment of health and bodily

discomfort"); Daniel v. Fort Worth & Rio Grande Ry. Co.,

96 Tex. 327, 72 S.W. 578, 579 (Tex. 1903) ("personally

annoyed and discomforted"); Cain v. Rust Indus.

Cleaning Servs., 969 S.W.2d 464, 470 (Tex.

App.--Texarkana 1998, pet. denied) ("annoyance and

discomfiture"); Lacy Feed Co. v. Parrish, 517 S.W.2d

845, 850 (Tex. Civ. App.--Waco 1974, writ ref'd n.r.e.)

("offensive, discomforting and annoying to persons of

ordinary sensibilities"). See generally Batemen,

Annotation, Nuisance As Entitling Owner Occupant Of

Real Estate To Recover Damages For Personal

Inconvenience, Discomfort, Annoyance, Anguish, Or

Sickness, Distinct From Or In Addition To, Damages for

Depreciation In Value Of Property Or Its Use, 25 A.L.R.

5th 568 (1994). The plaintiff may recover damages for

discomfort and annoyance [*5] even absent

depreciation of the real property caused by the

nuisance. See Vann, 90 S.W.2d at 563; Chandler v. City

of Olney, 126 Tex. 230, 87 S.W.2d 250, 251 (Tex.

1935); Daniel, 72 S.W. at 579. The measure of damages

for discomfort and annoyance is the amount of money

necessary to provide the plaintiff reasonable and fair

compensation for such personal injury. Daniel, 72 S.W.

at 579.

In their first issue on appeal, the Days contend the

evidence is legally or factually insufficient to support the

nuisance damages found by the jury in answer to Jury

Question Number Two. The Days argue a theory that

Jury Question Number Two submitted only the issue of

property damage, measurable by the difference in

market values immediately before and after the injury

caused by the nuisance; and because the evidence is

legally or factually insufficient to establish such market

values, the nuisance damages found in response to

Jury Question Number Two must be set aside. It appears

to be undisputed that such market values are not shown

in the evidence. We disagree, however, with the Days'

predicate that Jury Question Number Two [*6] submitted

only the issue of property damage.

Jury Question Number Two may be understood only in

light of Jury Question Number One. The jury was asked

and responded as follows regarding the two questions:

JURY QUESTION NO. 1

Do you find that the shooting range is a "nuisance?"

Answer: Yes or No. [The jury answered "yes."]

You are instructed that a "Nuisance" is a condition that

substantially interferes with the use and enjoyment of

land by causing unreasonable discomfort or annoyance

to persons of ordinary sensibilities attempting to use

and enjoy it.

* * *

JURY QUESTION NO. 2

What sum of money, if paid now in cash, . . . would fairly

and reasonably compensate the following for his or her

losses, if any, resulting from the nuisance from the date

of December 17, 1993 to present:

Fred Jones [$ 25,000]

Lloyd Adams [$ 30,000]

Mary Tripp [$ 10,000]

David Ward and Catherine Ward [$ 16,000]

You are instructed that damage to the property of

Plaintiffs includes reduction in value as well as loss of

the use and enjoyment of the property.

(Emphasis added.) On the face of the foregoing, it is

obvious that appellees' allegations of [*7] discomfort

and annoyance--or personal injury--were incorporated

in the definition of "nuisance" given in Jury Question

Number One, together with the allegation of interference

with their use and enjoyment of their property--or injury

to property.And Jury Question Number Two, conditioned

1999 Tex. App. LEXIS 5550, *3

Page 4 of 8
on a "yes" answer to Jury Question Number One, asked

the jury to determine the amount of money necessary to

fairly and reasonably compensate the appellees for

both kinds of injury, if any, caused by the nuisance. This

is an accepted method for submitting to the jury both

kinds of injury--personal injury and injury to property.

See Lacy Feed Co., 517 S.W.2d at 850-51; Meat

Producers, Inc. v. McFarland, 476 S.W.2d 406, 410-11

(Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.).

We should add that the trial court was obliged to submit

to the jury the questions, instructions, and definitions

raised by the evidence. Tex. R. Civ. P. 278. HN4

Concerning damages, the trial court was authorized to

submit only those elements of damages for which

evidence was introduced. See 4 Texas Civil Practice §

22:33[b], at 241-42 (Diane M. Allen et al. eds., 1992

ed.). Thus, the [*8] Days' theory is inherently doubtful

because it argues that the trial court in the present case

submitted a single element of damages for which no

evidence was introduced (property damage) while

neglecting to submit the only element for which evidence

was introduced (personal-injury damages). In any event,

the Days did not object to Jury Question Number Two

on the ground that it was not justified by the evidence.

We therefore reject the Days' contention that the charge

submitted to the jury only the issue of property damages.

The Days do not contend that the evidence supporting

personal-injury damages is legally or factually

insufficient; and, as pointed out above, these are

recoverable irrespective of any injury to property.

Presumably then, the amounts found by the jury in Jury

Question Number Two are based on evidence of

personal injury. The contrary is not shown.

We hold accordingly and overrule the Days' first

assignment of error.

TRESPASS

The Days direct two assignments of error at the award

of damages for trespass. 3

In the first, they complain

there was no evidence to support the jury's affirmative

answer to Jury Question Number Three, which asked

[*9] the jury whether Jim Day or Delores Day

trespassed on the property of Fred Jones and David

and Catherine Ward. We need not discuss the point

because we will sustain the Days' second assignment

of error concerning the award of damages for trespass.

Therein, they point out correctly that there is no evidence

conforming to the measure of damages that governed

the issue.

[*10] In Jury Question Number Four, the jury was asked

and responded as follows:

JURY QUESTION NO. 4

What sum of money paid now in cash, do you find would

fairly and reasonably compensate the following for

his/her losses, if any, resulting from Defendants'

trespass:

Fred Jones [$ 500]

Mary Tripp [- 0 -]

David and Catherine Ward [$ 4,000]

You are instructed that:

the measure of damages is the difference in the market

value of the land before and after the trespass.

In our discussion of appellees' cause of action for

nuisance, we pointed out that it is undisputed that the

appellees' introduced no evidence tending to prove the

market value of their properties immediately before and

immediately after any injury to property.

The appellees point to evidence introduced by them

which tended to prove the differing market values of the

property with and without the nuisance, the measure of

damages for temporary injury to property. See Sherman

Gas & Elec. Co. v. Belden, 103 Tex. 59, 123 S.W. 119,

121 (Tex. 1909); Meat Producers, 476 S.W.2d at 413.

We therefore do not understand the applicability of

these decisions. Appellees did not object to the [*11]

3 HN5 The elements of a cause of action for trespass are: (1) an intentional (2) entry on land (3) in the possession of another.

Restatement (Second) of Torts § 158 (1965). See First City Nat'l Bank v. Japhet, 390 S.W.2d 70, 74-75 (Tex. Civ. App.--Houston

1965, writ denied). HN6 The damages recoverable for trespass are various, but where the suit is for permanent injury to land,

the measure of damages is the difference in market value of the land immediately before and immediately after the trespass.

See Uvalde County v. Barrier, 710 S.W.2d 740, 743-44 (Tex. App.--San Antonio 1986, no writ).

Here, the entry of appellees' properties was alleged to be effected by bullets coming to rest on their properties. The resulting

injury was alleged to be an interference with the appellees' use and enjoyment of their properties.

1999 Tex. App. LEXIS 5550, *7

Page 5 of 8
instruction fixing the measure of damages for trespass,

given in Jury Question Number Four. This instruction

fixed the measure of damages as the difference in

market value before and after the trespass. However

erroneous this may be in light of the evidence and

pleadings, the jury was bound by the instruction. We are

required to judge the sufficiency of the evidence by that

measure, and we find no evidence of such values. See

Tex. R. App. P. 33.1; 4 Texas Civil Practice § 22.22[b], at

275.

We will therefore reverse the judgment insofar as it

awards damages for trespass and render judgment that

the appellees take nothing by that cause of action.

INVASION OF PRIVACY

In answer to Jury Question Number Five, the jury found

that Jim Day or Delores Day had "intruded upon the

privacy of" Fred Jones, Lloyd Adams, and Catherine

Ward. The question was submitted with the following

instruction:

It is an "Intrusion upon a person's privacy" if another

person wrongfully intrudes into the private activities of

such person in a manner which would outrage or cause

mental suffering, shame, or humiliation to a person of

ordinary sensibilities. Mental suffering is more than

[*12] disappointment, anger, resentment, or

embarrassment, although it may include all of these

elements. It includes a mental sensation of pain resulting

from such painful emotion as grief, severe

disappointment, indignation, wounded pride, shame,

despair and/or public humiliation.

Appellees did not object to the instruction.

In Jury Question Number Six, the jury was asked and

responded as follows:

What sum of money would fairly and reasonably

compensate the following for the damages suffered due

to the intrusion of [sic] privacy? In answering this

question you shall take into account the following

elements of damage and none other: (1) mental

suffering; and (2) physical pain.

Fred Jones [$ 500]

Lloyd Adams [$ 1,000]

Mary Tripp [- 0 - ]

David Ward [- 0 - ]

Catherine Ward [$ 500]

Appellees did not object to the form of submission of

Jury Question Number Six.

The Days contend the evidence is legally or factually

insufficient to support the jury findings in response to

Jury Questions Number Five and Six. We will

summarize the relevant evidence.

Fred Jones testified that the constant discharge of

large-caliber rifles at the shooting range [*13] interfered

with his ability to carry on a conversation on his patio

and with his ability to hear his television set while inside

his home. LloydAdams testified that the shooting began

about eight or ten o'clock in the morning and continued

until nine o'clock at night, although he occasionally

heard shooting until midnight or after, and that the noise

interfered with his sleeping. Catherine Ward testified

that the shooting occurred seven days a week and

interfered with her ability to carry on a conversation or

hear the television set inside her home. All three

concluded that the noise invaded their privacy.

We believe the foregoing evidence may not be

considered in judging the sufficiency of the evidence

with regard to the appellees' action for invasion of

privacy. Any injuries implicit in such evidence were, in

our view, encompassed in the jury's award of

personal-injury damages in answer to Jury Question

Number Two and would amount to a double recovery

for the same injuries if allowed also under Jury Question

Number Six. We do not see how the described effects of

the invasion of appellees' privacy are distinguishable

from the annoyance and discomfort resulting from the

nuisance. [*14] Without other evidence, the body of

evidence will not support the jury award of damages for

invasion of privacy found in Jury Question Number Six.

We hold accordingly.

We therefore reverse the judgment insofar as it awards

damages for invasion of privacy. We render judgment

that the appellees take nothing by that action.

EXCESSIVE DAMAGES

The Days assign as error the trial court's refusal to order

a remittitur based on their contention that certain

amounts awarded by the jury were grossly excessive.

We conclude the trial court did not abuse its discretion

for the reasons that follow.

1999 Tex. App. LEXIS 5550, *11

Page 6 of 8
The Days complain first that the $ 30,000 awarded Fred

Jones for injury to his land, by reason of the nuisance,

exceeded the $ 28,645 fixed by appellees'

property-appraisal witness as the amount of his

damages. We overrule the contention because the

entire $ 30,000 could permissibly include under the

charge sums awarded for personal injury as discussed

above. This element of damages, as pointed out

previously, is not assailed on appeal.

The Days complain next that the $ 1,000 awarded Fred

Jones for trespass and invasion-of-privacy damages,

and the $ 4,500 awarded David and Catherine Ward for

[*15] the same torts, are excessive because they are

not supported by the evidence and were fully

encompassed within the damages awarded for

nuisance. We have previously reversed these awards

and need not consider this aspect of the Days' complaint

of excessive damages.

STATUTORY BAR

In their sixth issue, the Days complain that the trial court

erred in failing to hold the appellees' nuisance and

invasion-of-privacy actions barred by reason of Texas

Local Government Code section 250.001(c). HN7 The

statute declares as follows:

A person may not bring a nuisance or similar cause of

action against a sport shooting range based on noise if

the sport shooting range is in compliance with all

applicable municipal and county ordinances, orders,

and rules regulating noise.

Tex. Gov't Code Ann. § 250.001(c) (West Supp. 1999)

(emphasis added). Because no municipal or county

ordinance, order, or rule regulating noise applied to the

Days' shooting range, the trial court evidently

determined that the statute did not constitute a bar to

the appellees' causes of action.

The Days argue that the trial court misconstrued the

statute--if [*16] a municipality or county decides not to

regulate noise, then a shooting range is necessarily in

compliance with that decision. The statutory language

will not reasonably bear the Days' interpretation. HN8

By its express terms, the statutory bar is predicated on

the applicability and therefore the existence of a

local-government ordinance, order, or rule, rather than

the non-existence of such an enactment. Moreover, the

Days' reasoning is unacceptable: the absence of such

an enactment does not necessarily reflect a decision; it

reflects only inaction. We overrule the Days' contention.

CROSS APPEAL

In a single cross-point, appellees complain that the trial

court abused its discretion by refusing their application

for a permanent injunction against future shooting on

the Days' range. 4

[*17] After the verdict in July 1996, which determined

that the Days' operation of the range amounted to a

private nuisance, the trial court issued on the appellees'

application a temporary restraining order prohibiting the

discharge of firearms at the range. Thereafter, the trial

court held a hearing on appellees' application for a

permanent injunction, and denied such relief in the

court's final judgment signed April 14, 1997. We cannot

tell from the record whether an evidentiary hearing was

held on the application for permanent injunction. The

appellees have not informed us in that regard; the Days

contend that a hearing of that kind was held. In all

events, no transcript of such a hearing appears in the

appellate record.

The appellees were not entitled to a permanent

injunction as a matter of right based simply on a

judgment which establishes that the Days' operation of

the range amounts to a nuisance. See Storey v. Central

Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615,

618 (Tex. 1950). And in the absence of a record

demonstrating that the trial court abused its discretion

in some particular by refusing the appellees' application

for a permanent injunction, we [*18] cannot hold that the

court did so. We therefore overrule appellees'

cross-point. See Phaup v. Boswell, 731 S.W.2d 625,

627 (Tex. App.--Houston [1st Dist.] 1987, no writ); 6

Texas Civil Practice § 48.3, at 1222-24 (1998).

For the reasons given, we reverse the trial-court

judgment insofar as it awards damages for trespass

and invasion of privacy. We render judgment that

appellees take nothing by those causes of action. We

affirm the balance of the judgment. See Tex. R. App. P.

43.2 (c).

4

The appeal was perfected before September 1, 1997. Appellees were therefore allowed to bring their cross-point without

perfecting their own appeal, pursuant to the former Texas Rules of Appellate Procedure. See 6 Texas Civil Practice § 13.5, at

374 (1998).

1999 Tex. App. LEXIS 5550, *14

Page 7 of 8
Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and

Powers *

Affirmed in Part; Reversed and Rendered in Part

Filed: July 29, 1999

* Before John E. Powers, Senior Justice (retired), Third

Court of Appeals, sitting by assignment. See Tex. Gov't

Code Ann. § 74.003(b) (West 1998).

1999 Tex. App. LEXIS 5550, *18

Page 8 of 8
Page 1 

Caution 

As of: Mar 30, 2015 

Elsie Dezso, Appellant v. Paul Harwood, Appellee 

NO. 03-95-00539-CV 

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN 

926 S.W.2d 371; 1996 Tex. App. LEXIS 2560

June 26, 1996, Filed 

SUBSEQUENT HISTORY: [**1] Motion for 

Rehearing Overruled July 31, 1996. Released for Publication July 31, 1996. 

PRIOR HISTORY: FROM THE COUNTY 

COURT OF AT LAW NO. 2 OF TRAVIS COUNTY. 

NO.224,370, HONORABLE ORLINDA L. NARANJO, 

JUDGE PRESIDING. 

This Opinion Substituted on Motion for Rehearing 

for Withdrawn Opinion of May 1, 1996, Previously Reported at: 1996 Tex. App. LEXIS 1707. 

DISPOSITION: Affirmed 

JUDGES: Before Justices Powers, Jones and B. A. 

Smith 

OPINION BY: Bea Ann Smith 

OPINION 

 [*372] ON MOTION FOR REHEARING 

Our opinion of May 1, 1996 is withdrawn and this 

one is substituted in its place. 

Elsie Dezso appeals by writ of error a default judgment rendered against her March 27, 1995 in favor of 

Paul Harwood. In four points of error, Elsie Dezso contends that the trial court erred in rendering a default 

judgment against her because she was not a party to the 

suit and she was not properly served with citation, as the 

citation did not include the name "Elsie Dezso." We will 

affirm the default judgment. 

BACKGROUND 

In his original petition, Harwood alleged that he entered into a distributorship agreement with Elsie Dezso's 

son, Danny Dezso, and Danny's business, Christian 

Symbols, acting [**2] for themselves and as authorized 

agents of Judi Dezso, Judi's Cupboard, Judi's Card and 

Gift Shop and Christian Symbols. The agreement would 

have allowed Harwood to obtain display cases, jewelry 

merchandise, and other products to be sold in Austin and 

surrounding areas. Additionally, the contract provided 

that Danny Dezso would assist in marketing the merchandise. Harwood paid for the distributorship in part by 

cash and in part by charging $ 3,905 on his credit cards 

through Judi's Cupboard and Judi's Card and Gift Shop. 

In February 1995, Harwood filed suit under the Deceptive Trade Practices - Consumer Protection Act alleging breach of warranty, breach of contract, and other 

misrepresentations with regard to the distributorship 

agreement. See Tex. Bus. & Com. Code Ann. §§ 

17.41-19.47 (West 1987 & Supp. 1996). 

Elsie Dezso operates Judi's Cupboard, Inc., also doing business as Judi's Card and Gift Shop; she owns the 

corporation with her [*373] husband and her two 

daughters. Danny Dezso operates a separate business

known as Christian Symbols. Danny is married to Judi 

Dezso, who has no apparent connection with Elsie 
Page 2 

926 S.W.2d 371, *; 1996 Tex. App. LEXIS 2560, ** 

Dezso's businesses and had no business dealings with 

Mr. Harwood. [**3] 1

1 Although Danny Dezso was a party in the 

original suit, the trial court severed the claims as 

to him. 

 Because Elsie Dezso's businesses are called "Judi's 

Cupboard" and "Judi's Card and Gift Shop," Harwood 

mistakenly believed that the appropriate defendant in his 

action was named Judi Dezso, when in fact her name was 

Elsie Dezso. Accordingly, the original citation was issued to "Dezso, Judi Individually and DBA Judi's Cupboard DBA Judi's Card & Gift Shop & DBA Christian 

Symbols" without mention of Elsie Dezso. Attached to 

the citation was Harwood's original petition reciting his 

DTPA claims. Although Harwood referred to Elsie 

Dezso as Judi Dezso in the petition, the petition explicitly listed all the DTPA complaints regarding his contractual agreement with Elsie Dezso and her son. Elsie 

Dezso does not dispute that she was actually served with 

the citation and the original petition. 

When Elsie Dezso failed to respond to the citation,

Harwood obtained a default judgment against her. The 

default judgment [**4] refers to Elsie Dezso as "Judi 

Dezso, also known as Elsie Dezso, individually and doing business as Christian Symbols, Judi's Cupboard and 

Judi's Card and Gift Shop . . . ." Elsie Dezso filed a writ 

of error seeking to overturn the default judgment. 

DISCUSSION AND HOLDINGS 

By her four points of error, Elsie Dezso essentially 

contends that the trial court erred in rendering a default 

judgment against her, because her name did not appear 

on the citation. Elsie Dezso asserts that because she was 

not an intended party to the suit the default judgment 

cannot stand. 

An appeal by writ of error directly attacks the default judgment. McKanna v. Edgar, 388 S.W.2d 927, 928 

(Tex. 1965). In such an appeal "the question to be decided is whether there is a lack of jurisdiction apparent on 

the face of the record which would vitiate the trial court's 

judgment." Id. Elsie Dezso basically argues that because 

the name Elsie Dezso was not on the citation or pleadings, she was not a party to the suit; thus, jurisdiction 

would not be proper over her. In cases such as the one at 

hand, "it is essential that the record affirmatively show a 

strict compliance with the provided manner and mode

[**5] of service of process." Id. The record in this case 

indicates that Elsie Dezso did in fact receive service of 

process, although under a misnomer. 

Elsie Dezso asserts that this is not a case of misnomer, but instead is a case of misidentification in which 

the wrong defendant was served. If the wrong defendant 

was served, the default judgment cannot stand. Callan 

v. Bartlett Elec. Coop., 423 S.W.2d 149, 156 (Tex. Civ. 

App.--Austin 1968, writ ref'd n.r.e.); Thomas v. Cactus 

Drilling Corp., 405 S.W.2d 214, 216 (Tex. Civ. 

App.--Austin 1966, no writ). In Thomas, this Court stated: 

 

 The principle of these cases is simple. 

If a person thought to be named A is sued 

and served under that name the judgment 

against him is valid even though his name 

is B. But if one has a cause of action 

against a person with the same or similar 

name, service on the person against whom 

one has no cause of action will not support a judgment against the one amenable 

to the cause of action asserted. 

 

Id. Elsie Dezso seems to rely on Thomas and similar 

cases in arguing that when there are two separate persons 

or corporations involved with the same or similar names, 

the case [**6] is one of mistaken identity. However, 

these cases simply explain that when the incorrect defendant is served with citation, a default judgment

against such incorrect defendant cannot extend to cover 

the correct defendant, even if their names are the same or 

similar. 

When the correct defendant is served under the 

wrong name the case is not one of misidentification but 

rather misnomer. Enserch Corp. v. Parker, 794 S.W.2d 2, 

4-5 [*374] (Tex. 1990); Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841 (Tex. 

1939); West v. Johnson, 129 S.W.2d 811, 815 (Tex. Civ. 

App.--Fort Worth 1939, writ ref'd); Haley v. Young, 541 

S.W.2d 217, 219 (Tex. Civ. App.--Houston 1976, no 

writ). The supreme court in Adams explained the misnomer rule: 

 

 

 

When a person intended to be sued is sued 

and served by a wrong name, and such 

person falls to appear and plead such 

misnomer in abatement, and suffers 

judgment to be obtained, he is bound by 

such judgment, and in all future litigation 

he may be connected with such suit or 

judgment by proper averments; and when 

such averments are made and proved, the 

party intended to be named in the judgment is affected [**7] or concluded to 

the same extent that he would have been 

if he had been named and served by his 

true name. 
Page 3 

926 S.W.2d 371, *; 1996 Tex. App. LEXIS 2560, ** 

 

Adams, 124 S.W.2d at 841. As the court in West stated, 

"The test seems to be whether or not the right person was 

sued, and whether or not he was put on notice that he, 

and not some other person, had been sued." West, 129 

S.W.2d at 815. 

Given the circumstances in this case, we believe that 

Elsie Dezso had adequate notice that she had been sued 

by Harwood. Although the citation did not refer to Elsie 

Dezso by her correct name, her corporation and its business names were on the citation. Additionally, the original petition expressly pointed out all of Harwood's complaints regarding his dealings with Elsie Dezso, her son, 

and the related businesses. Based on the allegations in 

the petition, Elsie Dezso knew that her daughter-in-law, 

Judi Dezso, was not in any way involved in the business 

dealings that formed the basis of Harwood's lawsuit. The 

allegations also made clear that Elsie Dezso's businesses, 

Judi's Cupboard and Judi's Card and Gift Shop, were

involved in the transactions that were the subject of 

Harwood's suit. Further, Elsie Dezso testified at [**8] a 

hearing on her motion to set aside the default judgment 

that "since the store's name is Judi, a lot of people will 

call me Judi because . . . they think it is my name." 

Based on these factors, Elsie Dezso should have logically 

concluded that Harwood intended to sue her and that he 

had simply misnamed her. 

Texas case law supports the principle that unless the 

pleadings and citation actually mislead the misnamed 

defendant, a default judgment will not be rendered void. 

Baker v. Charles, 746 S.W.2d 854, 855 (Tex. 

App.--Corpus Christi 1988, no writ); Cockrell v. Estevez, 

737 S.W.2d 138, 140 (Tex. App.--San Antonio 1987, no 

writ). The Cockrell court stated: 

 

 

 

When an intended defendant is sued under 

an incorrect name, jurisdiction is proper 

after service on defendant under misnomer, but it must be clear that no one was 

misled. 

A misnomer of a defendant does not 

render a judgment based on personal service, even one by default, void, provided 

the intention to sue the defendant actually 

served with citation is so evident from the 

pleadings and process that the defendant 

could not have been misled. 

 

Cockrell, 737 S.W.2d at 140 (citations omitted). In the 

circumstances [**9] of this case, Elsie Dezso could not 

have been misled into believing that her daughter-in-law 

was the intended defendant of Harwood's suit regarding 

the distributorship. 

It is apparent that Elsie Dezso was Harwood's intended defendant and was simply misnamed. Appellant

was, therefore, a party to the suit who was properly 

served with citation, and there is no lack of jurisdiction 

apparent on the face of the record. Accordingly, we

overrule all four points of error. 

Having found no error, we affirm the default judgment. 

Bea Ann Smith, Justice 

Before Justices Powers, Jones and B. A. Smith 

Affirmed 

Filed: June 26, 1996 
Page 1 

1 of 1 DOCUMENT 

Analysis 

As of: Mar 30, 2015 

FLUOR DANIEL, INC., Appellant, v. H.B. ZACHARY COMPANY, INC., Appellee. 

NUMBERS 13-03-585-CV AND 13-03-586-CV 

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS 

CHRISTI 

2005 Tex. App. LEXIS 8403

October 13, 2005, Memorandum Opinion Delivered 

October 13, 2005, Memorandum Opinion Filed 

SUBSEQUENT HISTORY: [*1] 

Petition for review denied by Fluor Daniel, Inc. v. H.B. 

Zachry Co., 2006 Tex. LEXIS 478 (Tex., May 19, 2006)

PRIOR HISTORY: On appeal from the 94th District Court of Nueces County, Texas. 

 Fluor Daniel, Inc. v. H. B. Zachry Co., 1 S.W.3d 166, 

1999 Tex. App. LEXIS 5441 (Tex. App. Corpus Christi, 

1999)

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant, a contributor 

to a settlement fund, sought review of an order of the 

94th District Court of Nueces County (Texas), which

severed appellant's original claim for declaratory relief 

against appellee, another contributor to the settlement 

fund, from appellee's counterclaim for attorney's fees and 

awarded attorney's fees to appellee. 

OVERVIEW: In the underlying cause, the trial court 

interpreted an arbitration decision and required appellee 

to contribute only 10 percent of the settlement fund. The 

court held that the record clearly indicated that the trial 

court intended to dispose of all issues and parties involved in the claim for declaratory relief. The trial court 

severed the two causes of action, thereby making the 

judgment on the declaratory judgment claim final and 

appealable. That judgment denied all relief not specifically therein granted. Although appellant alleged that the 

declaratory judgment could not provide the basis for an 

award of attorney's fees, appellant was the party who 

first brought a declaratory judgment action. There was 

more than a scintilla of evidence to support the attorney's 

fees award under Tex. Civ. Prac. & Rem. Code Ann. § 

37.009 (1997). Appellee was the prevailing party in a 

declaratory judgment action, and the arbitration agreement between the parties specifically called for an award 

of attorney's fees when one party sought judicial relief. 

Moreover, appellee presented numerous invoices from

counsel, which detailed the expenses appellee incurred in 

defending and prosecuting its claims. 

OUTCOME: The court affirmed the trial court's judgment. 

LexisNexis(R) Headnotes

Civil Procedure > Declaratory Judgment Actions > 

General Overview

Civil Procedure > Remedies > Costs & Attorney Fees > 

General Overview

[HN1] See Tex. Civ. Prac. & Rem. Code Ann. § 37.009

(1997). 
Page 2 

2005 Tex. App. LEXIS 8403, * 

Civil Procedure > Pretrial Matters > Separate Trials

Civil Procedure > Appeals > Appellate Jurisdiction > 

Final Judgment Rule

[HN2] A judgment is final for purposes of appeal if it 

disposes of all pending parties and claims in the record, 

except as necessary to carry out the decree. Whether a 

judicial decree is a final judgment must be determined 

from its language and the record in the case. Moreover, a 

severance divides the lawsuit into two or more separate 

and independent causes. When this is done, a judgment 

that disposes of all parties and issues in one of the severed causes is final and appealable. 

Civil Procedure > Appeals > Appellate Jurisdiction > 

Final Judgment Rule

[HN3] Finality must be resolved by a determination of 

the intention of the court as gathered from the language 

of the decree and the record as a whole, aided on occasion by the conduct of the parties. 

Civil Procedure > Declaratory Judgment Actions > 

State Judgments > Discretion

Civil Procedure > Remedies > Costs & Attorney Fees > 

Attorney Expenses & Fees > Statutory Awards

[HN4] Tex. Civ. Prac. & Rem. Code Ann. § 37.009 explicitly states that the trial judge may award reasonable 

and necessary attorney's fees as are equitable and just for 

any proceeding brought under the Texas Declaratory 

Judgments Act of Tex. Civ. Prac. & Rem. Code Ann. ch. 

37. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (1997). 

Thus, the award of attorney's fees in a declaratory judgment action is entrusted to the discretion of the trial 

court. In a declaratory judgment action, a successful defendant may recover attorney's fees if the defendant so 

requests. 

Civil Procedure > Declaratory Judgment Actions > 

General Overview

Civil Procedure > Remedies > Costs & Attorney Fees > 

Attorney Expenses & Fees > Reasonable Fees

Civil Procedure > Remedies > Costs & Attorney Fees > 

Attorney Expenses & Fees > Statutory Awards

[HN5] The standards for awarding attorney's fees pursuant to the Texas Declaratory Judgments Act of Tex. Civ. 

Prac. & Rem. Code Ann. ch. 37 are that (1) the fees must 

be reasonable and necessary, which is a question of fact, 

and (2) the fees must be equitable and just, which is a 

matter of law. The trial court abuses its discretion if it 

awards attorney's fees arbitrarily, unreasonably, or without regard to guiding legal principals. Additionally, there 

must be supporting evidence in order to sustain a verdict 

of an award of attorney's fees. In sum, when reviewing 

an award of attorney's fees under the Act, the court of 

appeals must determine whether the trial court abused its 

discretion by awarding fees when there was insufficient 

evidence that the fees were reasonable and necessary, or 

when the award was inequitable or unjust. 

Civil Procedure > Declaratory Judgment Actions > 

General Overview

Civil Procedure > Remedies > Costs & Attorney Fees > 

General Overview

[HN6] Under the Texas Declaratory Judgments Act of 

Tex. Civ. Prac. & Rem. Code Ann. ch. 37, a party does 

not have to prevail to be awarded attorney's fees. 

COUNSEL: For APPELLANT: William N. Woolsey, 

LAW OFFICE of WILLIAM N WOOLSEY, P.C., Corpus Christi, TX. 

For APPELLEE: James F. Buchanan, WELDER, 

LESHIN & MAHAFFEY, Corpus Christi, TX. 

JUDGES: Before Chief Justice Valdez and Justices Hinojosa and Rodriguez. Opinion by Chief Justice Valdez. 

OPINION BY: Rogelio Valdez 

OPINION 

MEMORANDUM OPINION 

Opinion by Chief Justice Valdez 

This is an appeal from a trial court's order severing a 

case and awarding attorney's fees in one of the two severed causes of action. A thorough articulation of the underlying dispute between these parties, which triggered 

in part the current appeal, can be found in our opinion 

reported at Fluor Daniel, Inc. v. H.B. Zachry, Co., 1 

S.W.3d 166 (Tex. App.-Corpus Christi 1999, pet. denied). 

We affirm. 

FACTS 

Essentially, this dispute arises from an action to 

construe and enforce an arbitration award. Appellant, 

Fluor Daniel, Inc., and appellee, H.B. Zachry Company, 

Inc., were originally both named defendants in a lawsuit 

brought by Arturo Ruiz against several defendants in 

1992. 1 Ruiz was an employee of Citgo Petroleum Corporation when he fell and sustained debilitating injuries. 

Fluor, Zachry and a third-party [*2] entered into a settlement agreement with Ruiz and created a settlement 

fund. 2

 Fluor initially contributed $ 800,000 to the fund 

and Zachry contributed $ 50,000. As part of the agreement, Fluor and Zachry agreed to arbitrate the compara-
Page 3 

2005 Tex. App. LEXIS 8403, * 

tive responsibility and contribution between themselves. 

3

 Fluor and Zachry presented their arguments before an 

arbitration panel, which apportioned liability as follows: 

Citgo, 80% liable; Fluor, 10% liable; and Zachry, 10% 

liable. 

1 Cause No. 92-1055-C, styled Arturo Ruiz v. 

H.B. Zachry Company, Fluor Daniel, Inc., Mundy Services Corp., and Brand Scaffold Builders, 

Inc.

2 The third-party is Mundy Industrial Maintenance, Inc. (incorrectly named by Ruiz as Mundy 

Service Corp.). Mundy contributed $ 50,000 to 

the settlement fund and both Fluor and Zachry 

agreed to release Mundy from further contribution and indemnity. 

3 The agreement provided in relevant part: 

 

 The respected [sic] percentages 

of liability, if any, of the parties in 

the total sum of the settlement 

fund will be determined under this 

agreement, it being the intention 

of the parties that Zachry or Fluor 

Daniel or a third party or all or 

some of them be found liable to 

the extent of the total thereof. 

 

 [*3] The determination of exactly what the percentage of liability apportionment meant, however, resulted in the ensuing litigation. Fluor construed the arbitration panel's decision to mean that since Citgo was 

statutorily shielded from liability, both Fluor and Zachry 

should contribute equally to the settlement fund because 

they were found equally at fault. However, Zachry interpreted the panel's ruling differently, believing that since 

it was held to be only 10% at fault, it is responsible for 

providing only 10% of the settlement fund. The crux of 

Zachry's belief is that the panel had the option of finding 

Citgo 100% percent liable, which would have yielded the 

status quo. The status quo would have been exactly what 

the parties tendered into the settlement fund prior to arbitration, with Fluor contributing $ 800,000 and Zachry 

contributing $ 50,000. 

Fluor sought judicial review of the panel's ruling. 4

First, Fluor attempted to have the district court modify, 

correct and confirm the arbitration panel's final award to 

their interpretation. The district court denied the relief 

Fluor sought and entered a final judgment in Cause No. 

92-1055-C. No appeal from this judgment was taken; 

therefore, [*4] this became a final and unappealable 

order. 

4 The district court's order dismissing with 

prejudice certain claims, pursuant to the settlement agreement, specifically retained Zachry and 

Fluor's contribution claims, subject to binding arbitration. 

Fluor then sued Zachry in the United States District 

Court for the Southern District of Texas. 5 This suit, 

however, was dismissed for want of jurisdiction pursuant 

to the Rooker-Feldman doctrine. 6 Fluor, still seeking 

relief, next filed suit as Cause No. 97-3543-C in the same 

Texas district court that rendered the initial judgment in 

Cause No. 92-1055-C. 7 Zachry's answer raised, inter 

alia, the affirmative defenses of res judicata and collateral estoppel. Zachry also filed a counterclaim in which 

it asked the district court to declare that Fluor violated 

the agreement regarding arbitration, therefore, entitling 

Zachry to attorney's fees. 8

 Zachry also filed a motion for 

summary judgment asserting that res judicata and collateral estoppel precluded [*5] Fluor from recovering. The 

trial court granted the motion and Fluor appealed. We 

reversed and remanded, holding that these doctrines were 

inapplicable because Fluor's suit was only asking the trial 

court to give effect to a prior judgment and not reapportion liability. See Fluor, 1 S.W.3d at 169-70. 

5 Civil Action No. C-96-603, styled Fluor 

Daniel, Inc. v. H.B. Zachry Co., Inc.

6 The Rooker-Feldman doctrine is discussed in 

more detail in our previous opinion. See Fluor 

Daniel, Inc. v. H.B. Zachry, Co., 1 S.W.3d 166, 

168-69 (Tex. App.-Corpus Christi 1999, pet. denied). Essentially, we stated that "under the 

Rooker-Feldman doctrine, federal district courts, 

as courts of original jurisdiction, lack jurisdiction 

to review, modify, or nullify final orders of state

courts." Id. at 168. 

7 The basis of this petition was "to have the 

Court construe the Arbitration Agreement between these parties and its earlier judgment entered pursuant to such Agreement and declare the 

meaning thereof in aid of enforcement of the 

Judgment." Fluor conceded that the court's prior 

judgment was final, binding, and unappealable 

under the terms of the agreement, but it asked the 

court to declare the prior judgment's actual dollar

effect as to each party, due to the fact that the arbitration panel's decision apportioning liability 

against Citgo was "inconsistent with Texas law" 

as well as the settlement agreement between Fluor and Zachry. 

 [*6] 

8 Chapter 37 of the Texas Civil Practice and 

Remedies Code, known as the Declaratory Judgments Act, provides that in any proceeding under 

the Act [HN1] "the court may award costs and 
Page 4 

2005 Tex. App. LEXIS 8403, * 

reasonable and necessary attorney's fees as are 

equitable and just." TEX. CIV. PRAC. & REM. 

CODE ANN. § 37.009 (Vernon 1997). 

On remand, the district court severed the claims into 

two causes, Cause No. 97-3543-C (Fluor's original 

claim) and 97-6119-C (Zachry's counterclaim for attorney's fees). Cause No. 97-3543-C proceeded to a bench 

trial in which the court rendered judgment in favor of 

Zachry on January 2, 2001. Fluor filed a timely motion 

for new trial, which was overruled by operation of law, 

and attempted to appeal the final judgment in Cause No. 

97-3543-C. However, we dismissed that appeal for want 

of jurisdiction, holding that Fluor did not timely file its 

notice of appeal pursuant to Texas Rule of Appellate 

Procedure 26.1. See Fluor Daniel, Inc. v. H.B. Zachry, 

Co., No. 13-01-289-CV, 2001 Tex. App. LEXIS 3675 

(Tex. App.-Corpus Christi [*7] May 24, 2001, no pet.)

(not designated for publication). 

Cause No. 97-6119-C (Zachry's claim for attorney's 

fees) then proceeded to a jury trial. The jury returned 

judgment in favor of Zachry and awarded it reasonable 

and necessary attorney's fees in the amount of $ 50,000 

for defending Cause No. 97-3543-C and for prosecuting 

Cause No. 97-6119-C. The jury also held that if Cause 

No. 97-6119-C were appealed to this Court, then the

reasonable and necessary attorney's fees Zachry would 

additionally incur on appeal would be $ 12,500. The district court subsequently rendered judgment on the verdict. The court entered its "Final Judgment" on July 3, 

2003, according to the court's docket sheet; however, the 

date was not noted on the copy of the judgment. On July 

30, 2003, Fluor filed a motion for new trial, and Zachry 

filed an "Unopposed Motion For Entry of Judgment 

Nunc Pro Tunc" seeking to have the nunc pro tunc 

judgment date reflect the date of the final judgment. The 

court signed the nunc pro tunc judgment on July 31,

2003. Subsequently, Fluor filed an amended motion for 

new trial on August 12, 2003, and then it filed its notice 

of appeal for Cause No. 97-6119-C on September 30, 

2003. In [*8] addition, and on the same day, Fluor filed 

another notice of appeal for Cause No. 97-3543-C. 

FINALITY OF JUDGMENT 

We address Fluor's second issue which essentially 

asserts that "the trial court erred in severing the attorney's 

fees issue and rendering an ostensible final judgment in 

Cause No. 97-3543-C." Fluor did not, however, present 

an argument regarding the propriety of the severance; 

rather, Fluor avers that the judgment entered on January 

2, 2001 in Cause No. 97-3543-C was not final and it did 

not become final until Cause No. 97-6119-C made it 

final. Fluor's argument is wholly unfounded. 

The Texas Supreme Court has stated that [HN2] "a 

judgment is final for purposes of appeal if it disposes of 

all pending parties and claims in the record, except as 

necessary to carry out the decree." Lehmann v. 

Har-Con Corp., 39 S.W.3d 191, 195, 44 Tex. Sup. Ct. J. 

364 (Tex. 2001) (citations omitted). "Whether a judicial 

decree is a final judgment must be determined from its 

language and the record in the case." Id. Moreover, "[a] 

severance divides the lawsuit into two or more separate 

and independent causes. When this is done, a judgment 

that disposes of all parties and issues in one of [*9] the 

severed causes is final and appealable." Hall v. City of 

Austin, 450 S.W.2d 836, 837-38, 13 Tex. Sup. Ct. J. 163 

(Tex. 1970) (emphasis added). 

The trial court severed the two causes of action on

January 2, 2001, thereby making the judgment in Cause 

No. 97-3543-C final and appealable. The judgment for 

Cause No. 97-3543-C reads in pertinent part: 

 

 It is hereby ORDERED, ADJUDGED 

AND DECREED that the declaratory relief sought by H. B. Zachry Company, 

Inc. that its liability for contribution to 

Fluor Daniel, Inc. be limited to ten percent (10%) of the total settlement fund as 

determined by the Arbitration Panel in its 

Final Decision must be and it is hereby 

GRANTED. 

. . . 

IT IS ORDERED, ADJUDGED and 

DECREED that the Counter-Claim of H. 

B. Zachry Company, Inc. for recovery of 

attorney's fees be and the same is hereby 

severed from the claim of Fluor Daniel 

Inc. and H. B. Zachry, Inc. and the Counter-Claim of H. B. Zachry Company, Inc. 

against Fluor Daniel, Inc. as to which the 

Court has entered this Judgment, which 

Judgment is hereby made final; and 

IT IS FURTHER ORDERED that the 

Clerk of the Court re-docket the pleadings 

of H. B. Zachry Company, Inc. asserting 

its claim for attorney's [*10] fees as 

Cause No. 97-6119-C in this Court in 

such other manner as approved by the 

Court which will preserve such claims. 

All relief not specifically herein 

granted, is denied. 

 

Therefore, the record clearly indicates that the trial 

court intended to dispose of all issues and parties in-
Page 5 

2005 Tex. App. LEXIS 8403, * 

volved in Cause No. 97-3543-C. Further, the parties

themselves understood this is what the trial court intended. [HN3] "Finality 'must be resolved by a determination of the intention of the court as gathered from the 

language of the decree and the record as a whole, aided 

on occasion by the conduct of the parties.'" Lehmann, 

39 S.W.3d at 203 (quoting 5 RAY W. MCDONALD, 

TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, ed., 1992 ed.)). The record is patently clear from the 

conduct of the trial judge and the parties that they intended the January 2, 2001 final order in Cause No.

97-3543-C to be final and appealable. In fact, Fluor attempted to appeal this judgment, albeit after the time for 

appeal had expired. Fluor had its chance to appeal the 

final judgment of Cause No. 97-3543-C but failed to

abide by the rules. Fluor now seeks a second bite at the 

apple by again bringing an appeal [*11] but disguising 

it as an attack on the severance of the case. Accordingly, 

Fluor's issue on severance is overruled. 

ATTORNEY'S FEES 

We now turn to Fluor's issue regarding the award of

attorney's fees. In its counterclaim, Zachry alleged that 

"as the prevailing party in a suit for declaratory judgment 

[Cause Number 97-3453-C] it would be just and equitable for . . . [it] to recover its reasonable and necessary 

attorney's fees . . . pursuant to § 37.009, Texas Civil 

Practice and Remedies Code." Zachry alleged that it 

incurred in excess of $ 150,000 in reasonable and necessary attorney's fees. 9

 Fluor contends that the trial court 

should not have awarded attorney's fees in favor of

Zachry. Fluor raises several reasons for this assertion. 

9 The jury however awarded Zachry only $ 

50,000 for reasonable and necessary attorney's 

fees. 

First, Fluor alleges that Zachry's reliance on section 

38.001 of the civil practice and remedies code for its 

authority to recover attorney's [*12] fees "is flawed." 

However, Zachry did not rely on Section 38.001; rather, 

Zachry relies on chapter 37 of the civil practice and 

remedies code and the agreement itself for its authority 

enabling it to recover attorney's fees. 

Next, Fluor alleges that "the declaratory judgment 

itself is not a proper avenue in this case and therefore 

cannot provide the basis for [an award of] attorney's 

fees." However, Fluor is the party who first brought a 

declaratory judgment action. Fluor's original petition 

specifically prays that the trial court "declare the dollar 

effect" of the arbitration award. No particular type of 

pleading is required by the declaratory judgments act, but 

it is clear that Fluor's suit was an action seeking declaratory judgment. See, e.g., Anderson v. McRae, 495 

S.W.2d 351, 358 (Tex. Civ. App.-Texarkana 1973, no 

writ). Having forced Zachry to defend against a declaratory judgment action, Fluor may not now complain on

appeal that a declaratory judgment was not a "proper 

avenue" for this case. 

Finally, Fluor alleges that the award itself was inequitable. [HN4] Section 37.009 of the civil practice and 

remedies code explicitly states that the trial judge may 

[*13] award reasonable and necessary attorney's fees as 

are equitable and just for any proceeding brought under 

the Texas Declaratory Judgments Act (hereinafter "Act") 

of chapter 37 of the civil practice and remedies code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 37.009

(Vernon 1997); Bocquet v. Herring, 972 S.W.2d 19, 20, 

41 Tex. Sup. Ct. J. 650 (Tex. 1998). Thus, the award of 

attorney's fees in a declaratory judgment action is entrusted to the discretion of the trial court. See Bocquet, 

972 S.W.2d at 20. In a declaratory judgment action, a 

successful defendant may recover attorney's fees if the 

defendant so requests. Id.

[HN5] The standards for awarding attorney's fees 

pursuant to the Act are that (1) the fees must be reasonable and necessary, which is a question of fact, and (2) the 

fees must be equitable and just, which is a matter of law. 

Id. at 21. The trial court abuses its discretion if it awards 

attorney's fees arbitrarily, unreasonably, or without regard to guiding legal principals. Id. (citing Goode v. 

Shoukfeh, 943 S.W.2d 441, 446, 40 Tex. Sup. Ct. J. 487 

(Tex. 1997)). Additionally, there must be supporting evidence in [*14] order to sustain a verdict of an award of 

attorney's fees. See id. (citing Beaumont Bank v. Buller, 

806 S.W.2d 223, 226, 34 Tex. Sup. Ct. J. 482 (Tex. 

1991)). In sum, when reviewing an award of attorney's 

fees under the Act, "the court of appeals must determine 

whether the trial court abused its discretion by awarding 

fees when there was insufficient evidence that the fees 

were reasonable and necessary, or when the award was 

inequitable or unjust." Id.

In the present case, we find nothing to indicate that 

the district court's awarding of attorney's fees to Zachry 

was unjust or inequitable, as there was ample evidence to 

support the jury's determination that $ 50,000 in attorney's fees was reasonable and necessary. Zachry presented numerous invoices from the Kleberg Law Firm,

which represented Zachry in the matter. These invoices 

detail the expenses Zachry incurred in defending and 

prosecuting these claims. The invoices show that the 

Kleberg Law Firm billed Zachry for roughly $ 148,743 

for their legal services. Testimony at trial elucidated how 

these fees were incurred. The jury determined that $ 

50,000 was a reasonable award. There is certainly more 

than a scintilla of evidence to [*15] support this award. 

Zachry was the prevailing party in a declaratory judgment action. Finally, section VI of the arbitration agreement between Fluor and Zachry specifically calls for an 
Page 6 

2005 Tex. App. LEXIS 8403, * 

award of attorney's fees when one party seeks judicial 

relief. Therefore, when reviewing the entire record, we 

cannot say that the trial court abused its discretion in 

awarding Zachry attorney's fees. 

Lastly, Fluor attempts to assert that Zachry cannot

recover its attorney's fees because it was not a prevailing 

party. We conclude that Zachry did prevail in the underlying cause because Zachry received what it requested, 

that is, an interpretation of the arbitration decision which 

entitled it to contribute only 10% of the settlement fund. 

However, we also note that [HN6] under the Act a party 

does not have to prevail to be awarded attorney's fees. 

See, e.g., Barshop v. Medina County Underground Water Cons. Dist., 925 S.W.2d 618, 637, 39 Tex. Sup. Ct. J. 

858 (Tex. 1996). Accordingly, Fluor's issue regarding the 

awarding of attorney's fees is overruled. 

CONCLUSION 

Having overruled both of Fluor's issues on appeal, 

we affirm the trial court's judgment severing the two 

causes and awarding Zachry attorney's [*16] fees. 

Rogelio Valdez, 

Chief Justice 
| | Caution

As of: April 7, 2015 5:40 PM EDT

Fresh Coat, Inc. v. Life Forms, Inc.

Court of Appeals of Texas, First District, Houston

December 31, 2003, Decided ; December 31, 2003, Opinion Issued

NO. 01-03-00730-CV

Reporter

125 S.W.3d 765; 2003 Tex. App. LEXIS 10837; CCH Prod. Liab. Rep. P16,863

FRESH COAT, INC., Appellant v. LIFE FORMS, INC.,

Appellee

Subsequent History: [**1]

53.7(F) mot. for extension of time filed by, 02/09/2004

53.7(F) mot. for extension of time filed by, 03/19/2004

53.7(F) mot. for extension of time filed by, 04/16/2004

Prior History: On Appeal from the 295th District Court.

Harris County, Texas. Trial Court Cause No.

1998-25256-D.

Disposition: Motion to dismiss granted; appeal

dismissed.

Core Terms

trial court, parties, dispose, final judgment, lawsuit,

summary judgment motion, indemnity, appealable

judgment, pending claim, unequivocally, class-action

Case Summary

Procedural Posture

The 295th District Court, Harris County (Texas), granted

summary judgment in favor of appellee home builder on

its claims against appellant insulation company for

common-law indemnity, contractual indemnity, based

on the provisions of the parties' contract, and statutory

indemnity, based on the builder's alleged status as an

innocent retailer. The insulation company appealed.

Overview

The builder asserted causes of action for alleged defects

in the design of residential and commercial exterior

insulation finish systems. The builder asserted claims

for indemnity against the insulation company. In a

severed cause, the builder filed a second amended

fourth party petition alleging claims against the insulation

company for common-law, contractual, and statutory

indemnity. The builder then filed a motion for summary

judgment. In its motion for summary judgment, the

builder did not seek summary judgment on its

common-law and statutory indemnity claims. However,

the trial court granted the builder all of the relief the

builder had requested and that the trial court was entitled

to give. Also, the judgment was a final and appealable

judgment because it clearly and unequivocally disposed

of all of the parties and the claims pending in the trial

court. Thus, because the insulation company did not file

its notice of appeal within 30 days of the date the

judgment was signed, and did not seek an extension of

its appellate deadlines, it did not timely perfect its appeal

and did not properly invoked the appellate court's

jurisdiction.

Outcome

The appellate court dismissed the insulation company's

appeal for want of jurisdiction.

LexisNexis® Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

HN1 It is well-established that, in general, an appeal

may be taken only from a final judgment; that is, a

judgment that disposes of all pending parties and claims.

Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

HN2 For purposes of an appeal, the intent to finally

dispose of a case must be unequivocally expressed in

the words of the judgment itself. If that intent is clearly

expressed in the judgment, then the order is final and

appealable, even though the record does not provide

an adequate basis for rendition of judgment.
Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

HN3 For purposes of determining whether a judgment

is final and appealable, to determine whether an order

disposes of all pending claims and parties, an appellate

court may also look to the record from the court below.

Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

HN4 In a judgment, the inclusion of the language "all

relief not expressly granted is denied," standing alone,

does not indicate finality in a judgment rendered without

a conventional trial on the merits.

Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

HN5 In determining whether a judgment is final, in a

case in which an appellate court is uncertain about a

trial court's intent in signing a judgment, the appellate

court may abate the appeal to permit clarification by the

trial court.

Civil Procedure > Appeals > Appellate Jurisdiction >

Interlocutory Orders

HN6 An express adjudication of all parties and claims in

a case is not interlocutory merely because the record

does not afford a legal basis for the adjudication. In

those circumstances, the order must be appealed and

reversed.

Counsel: FOR APPELLANT: Adam Brett Chambers,

Bateman Pugh, P.L.L.C., Houston, TX. Kevin D. Jewell,

Chamberlain, Hrdlicka, White, Williams, & Martin,

Houston, TX. Robert H. Bateman, Magenheim,

Bateman, Robinson, Wrotenbery & Helfand, Houston,

TX.

FOR APPELLEE: Chris E. Ryman, Coats, Rose, yale,

Holm, Ryman & Lee, P.c., Houston, TX.

Judges: Terry Jennings, Justice. Panel consists of

Chief Justice Radack and Justices Jennings and Higley.

Opinion by: Terry Jennings

Opinion

[*766] Appellant, Fresh Coat, Inc. (Fresh Coat),

challenges the trial court's rendition of summary

judgment in favor of appellee, Life Forms, Inc. (Life

Forms). Prior to the submission of briefing on the merits

by either party, Life Forms filed a motion with this Court

seeking to dismiss this appeal for want of jurisdiction. In

its motion to dismiss, Life Forms contends that Fresh

Coat failed to timely appeal from the trial court's final

judgment and that, as a result, this Court lacks

jurisdiction over this appeal.

We dismiss the appeal for want of jurisdiction.

Procedural Background

Fresh Coat and Life Forms were originally parties to a

class-action lawsuit pending in the trial court below. 1

The plaintiffs in that lawsuit asserted causes of action

for alleged defects in the design of residential and

commercial exterior insulation finish [**2] systems. Life

Forms, a home builder, contracted with Fresh Coat to

have Fresh Coat construct and apply such finish

systems on Life Forms's homes. After it was made a

party to the class-action lawsuit, Life Forms asserted

claims for indemnity against Fresh Coat.

On October 30, 2002, the trial court signed an agreed

order severing Life Forms's claims against Fresh Coat

into the cause on appeal. 2 As part of its severance

order, the trial court instructed the parties as follows:

"Life Forms and Freshcoat [sic] agree that their claims

can be decided on the papers with Life Forms filing its

motion on or before 12/2/02 and Freshcoat [sic] filing its

response on or before 12/12/02."

[**3] In the severed cause, Life Forms subsequently

filed its "Second Amended Fourth Party Petition"

alleging claims against Fresh Coat for (1) common-law

indemnity; (2) contractual indemnity, based on the

provisions of the parties' contract; and (3) statutory

indemnity, based on Life Forms's alleged status as an

1

The original matter is styled McCray, et al. v. Parex, Inc., et al., No. 98-25256, in the 295th Judicial District Court of Harris

County, Texas.

2

Fresh Coat did not present any affirmative claims for relief against Life Forms.

125 S.W.3d 765, *765; 2003 Tex. App. LEXIS 10837, **1

Page 2 of 4
"innocent retailer." 3

Life Forms then filed a motion for

summary judgment arguing that, as a matter of law,

under the provisions of the parties' contract, (1) Fresh

Coat was obligated to defend and indemnify Life Forms

from the claims against it in the class-action lawsuit, (2)

Fresh Coat's obligation to indemnify Life Forms was

triggered by the claims brought against it in that lawsuit,

and (3) Fresh Coat was obligated to reimburse Life

Forms for its attorney's fees and costs incurred, and

settlements paid, as a result of that lawsuit. As exhibits

to its motion for summary judgment, Life Forms attached

affidavits and other [*767] records documenting its

claim for attorney's fees, costs, and settlements totaling

$ 186,819.43 paid as a result of the claims brought

against Life Forms in the class-action lawsuit and

incurred in pursuit of its indemnity claims against Fresh

Coat. In its [**4] motion for summary judgment, Life

Forms did not seek summary judgment on its

common-law and statutory indemnity claims. Fresh Coat

filed a response to the motion for summary judgment

and disputed Life Forms's contractual indemnity claims.

On March 7, 2003, the trial court signed a "Final

Judgment" which reads as follows:

The Court has considered and decided to grant Life

Forms Incorporated's Motion for Summary Judgment.

Life Forms Incorporated's Motion for Summary

Judgment is granted.

It is ADJUDGED that Life Forms, Incorporated have

and recover judgment against Fresh[]Coat, Inc. for $

186,819.43, together with all costs of court and interest

on this judgment at the rate of ten percent (10%) per

annum from the date of judgment until paid. This is a

final judgment disposing of all parties and all issues. All

relief not expressly [**5] granted is denied.

In June 2003, Fresh Coat filed a "Motion for Entry of

Appealable Judgment" in which it argued that, because

the trial court's March 7, 2003 judgment did not dispose

of all pending claims, it was not a final, appealable

judgment. In its motion, Fresh Coat requested that the

trial court sign a judgment that "clearly and

unequivocally" disposed of the entire case. Following a

hearing, the trial court denied the motion, for want of

jurisdiction, on July 7, 2003. The following day, Fresh

Coat filed its notice of appeal from the trial court's March

7, 2003 judgment.

Finality of the Judgment

In its motion to dismiss this appeal, Life Forms argues

that the trial court's March 7, 2003 judgment was a final

and appealable judgment because it clearly and

unequivocally disposed of all parties and claims pending

in the trial court. Additionally, Life Forms argues that, to

the extent the trial court's judgment granted more relief

than Life Forms was entitled to receive, the judgment

was arguably erroneous, but final and appealable

nonetheless.

HN1 It is well-established that, in general, an appeal

may be taken only from a final judgment; that is, a

judgment that disposes [**6] of all pending parties and

claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195, 44 Tex. Sup. Ct. J. 364 (Tex. 2001). HN2 The intent

to finally dispose of the case must be unequivocally

expressed in the words of the judgment itself. Id. at 200.

If that intent is clearly expressed in the judgment, then

the order is final and appealable, even though the

record does not provide an adequate basis for rendition

of judgment. Id. In Lehmann, the court conceded that,

HN3 to determine whether an order disposes of all

pending claims and parties, an appellate court may also

look to the record from the court below. Id. at 205-06.

The judgment at issue here, entitled "Final Judgment,"

contains a "Mother Hubbard" clause, e.g., "All relief not

expressly granted is denied." See id. at 203. The Texas

Supreme Court has held that HN4 the inclusion of such

language, standing alone, does not indicate finality in a

judgment rendered, as here, without a conventional trial

on the merits. Id. at 203-04.

The judgment also clearly states that it "is a final

judgment disposing of all parties and all issues." Fresh

Coat argues that this language is not [**7] an

unequivocal statement of finality, and in support of its

argument [*768] relies on the Texas Supreme Court's

suggestion in Lehmann that, to avoid any doubt as to

the finality of its judgment, a trial court could include a

statement such as, "'This judgment finally disposes of

all parties and all claims and is appealable.'" Id. at 206

(emphasis added).

Here, however, the fact that the trial court did not

expressly state that its judgment was "appealable" does

not render the court's intent ambiguous. The issue

3 See TEX. CIV. PRAC. & REM. CODE ANN. § 82.002 (Vernon 1997); TEX. BUS. & COM. CODE ANN. § 17.555 (Vernon

2002).

125 S.W.3d 765, *766; 2003 Tex. App. LEXIS 10837, **3

Page 3 of 4
presented to the trial court by Life Forms's motion for

summary judgment was whether Fresh Coat was

contractually obligated to indemnify Life Forms for the

attorney's fees, costs, and settlements incurred and

paid by Life Forms as a result of the class-action lawsuit.

In its judgment, the trial court awarded, to the penny, the

amount of damages which Life Forms claimed it was

entitled to recover from Fresh Coat, and the trial court

could not have granted any more relief to Life Forms

than it did. This judgment clearly and finally disposed of

all parties and all pending claims because Life Forms

could recover no more than the amount awarded in the

judgment, [**8] which was everything it sought.

Moreover, the Texas Supreme Court has suggested

that, HN5 in a case in which we are uncertain about the

trial court's intent in signing a judgment, we may abate

the appeal to permit clarification by the trial court. Id.

(citing TEX. R. APP. P. 27.2). We need not do so in this

case because, at the hearing on Fresh Coat's "Motion

for Entry of Appealable Judgment," the trial court stated

as follows: "I believe it was a final judgment. You are

asking me about my belief. My belief was it was a final

judgment." Additionally, the trial court denied Fresh

Coat's motion "for lack of trial court jurisdiction." Thus,

the record indicates that the trial court clearly and

unequivocally expressed its intent to dispose of all

parties and pending claims in its March 7, 2003

judgment.

Finally, as the Texas Supreme Court has noted, HN6

"An express adjudication of all parties and claims in a

case is not interlocutory merely because the record

does not afford a legal basis for the adjudication. In

those circumstances, the order must be appealed and

reversed." Id. If Fresh Coat had any question as to the

finality of the trial court's judgment, it could have either

requested [**9] that the trial court clarify its judgment

while the court retained plenary power or perfected a

timely appeal from the judgment. It did neither.

Based on the language of the trial court's March 7, 2003

judgment and the record presented, we hold that, as of

the date it was signed, the judgment was a final and

appealable judgment disposing of all parties and

pending claims. Accordingly, because Fresh Coat did

not file its notice of appeal within 30 days of the date the

judgment was signed, and did not seek an extension of

its appellate deadlines, it has not timely perfected its

appeal in this cause and has not properly invoked this

Court's appellate jurisdiction. See TEX. R. APP. P. 26.1.

4

Conclusion

We grant Life Forms's motion and dismiss the appeal

for want of jurisdiction.

[**10] Terry Jennings

Justice

4

Fresh Coat did not file a motion for new trial or request that the trial court prepare findings of fact and conclusions of law. See

TEX. R. APP. P. 26.1(a).

125 S.W.3d 765, *768; 2003 Tex. App. LEXIS 10837, **7

Page 4 of 4
Page 1 

Caution 

As of: Mar 30, 2015 

ALFREDO P. GARCIA d/b/a GARCIA TRUCKING COMPANY, Petitioner, v. 

KASTNER FARMS, INC., ET AL., Respondents 

No. C-8279 

SUPREME COURT OF TEXAS 

774 S.W.2d 668; 1989 Tex. LEXIS 97; 32 Tex. Sup. J. 573

July 12, 1989, Decided 

PRIOR HISTORY: [**1] From Live Oak County Thirteenth District. 

COUNSEL: Mr. W. Michael Murray, Cackowski & 

Murray, Austin, Texas, Attorneys for petitioner. 

Mr. James M. Whitten, Law Offices of James M. Whitten P.C., Sinton, Texas, Attorneys for respondents. 

JUDGES: C.L. Ray, Justice. 

OPINION BY: RAY 

OPINION 

 [*669] The issue presented is whether Alfredo P. 

Garcia has reasonably explained his failure to timely file 

a cost bond for appeal. Tex. R. App. P. 41(a)(2). The 

court of appeals held he had not and dismissed Garcia's 

appeal for want of jurisdiction. 761 S.W.2d 444. We reverse the judgment of the court of appeals and remand 

the cause to that court for further proceedings. 

Garcia sued Kastner Farms, Inc. for breach of contract, and the trial court rendered judgment that Garcia 

take nothing. Because Garcia did not file a motion for 

new trial, the cost bond was due to be filed within thirty 

days. Tex. R. App. P. 41(a)(1). Garcia did not file his cost 

bond within the thirty-day period; however, he did file a 

motion to extend time to file his cost bond. Garcia was 

late in filing his bond because he believed the cost bond 

could be filed after he received the trial court's findings 

of fact and [**2] conclusions of law. Garcia explained 

that he could not adequately determine the propriety or 

necessity of an appeal until he had received and reviewed 

these findings of fact and conclusions of law. 

In determining whether to grant Garcia's motion, the 

court of appeals considered Rule 41(a)(2): 

 

 

 

An extension of time may be granted by 

the appellate court for late filing of a cost 

bond or notice of appeal or making the 

deposit required by paragraph (a)(1) or for 

filing the affidavit, if such bond or notice 

of appeal is filed, deposit is made, or affidavit is filed not later than fifteen days 

after the last day allowed and, within the 

same period, a motion is filed in the appellate court reasonably explaining the 

need for such extension. 

 

The court of appeals overruled Garcia's motion and dismissed the appeal for want of jurisdiction, concluding 

that a misunderstanding of the law was not a reasonable 

explanation. 761 S.W.2d at 446. The court of appeals 

purported to follow the leading case of Meshwert v. 

Meshwert, 549 S.W.2d 383 (Tex. 1977), and also relied 
Page 2 

774 S.W.2d 668, *; 1989 Tex. LEXIS 97, **; 

32 Tex. Sup. J. 573 

heavily on Home Ins. Co. v. Espinoza, 644 S.W.2d 44

(Tex. App. -- Corpus Christi 1982, writ ref'd n.r.e.). 

 [**3] In Meshwert, we defined the phrase "reasonably explaining," to mean "any plausible statement of 

circumstances indicating that failure to file within the 

[required] period was not deliberate or intentional, but 

was the result of inadvertence, mistake or mischance." 

549 S.W.2d at 384. While the definition of reasonable 

explanation is settled, the courts of appeals have not applied the definition consistently. Compare Heritage Life 

Ins. Co. v. Heritage Group Holding Corp., 751 S.W.2d 

229 (Tex. App. -- Dallas 1988, writ denied) (holding that 

any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance 

-- even if that conduct can also be characterized as professional [*670] negligence) with Home Ins. Co. v. 

Espinoza, 644 S.W.2d 44 (Tex. Civ. App. -- Corpus 

Christi 1982, writ ref'd n.r.e.) (holding that failure to 

adequately familiarize oneself with the basic rules of 

appellate procedure is not a reasonable explanation). 

In Espinoza, the attorney impliedly admitted that she 

was mistaken regarding the requirements under the rule, 

somehow having gleaned the impression that the cost

bond need not be filed if a hearing [**4] on the motion 

for new trial is still pending. The court of appeals in Espinoza said that a misunderstanding of the law was not a 

reasonable explanation. We believe that Espinoza represents an unduly restrictive view of Rule 41(a)(2). 

This court in Meshwert recognized that the reasonable explanation standard was a relaxed requirement from 

the old standard of good cause. 549 S.W.2d at 384. 

Meshwert followed the reasoning of the dissent in Sloan 

v. Passman, 536 S.W.2d 575 (Tex. Civ. App. -- Dallas 

1976, no writ) (Guittard, C.J., dissenting at 538 S.W.2d 

1). Sloan v. Passman was specifically overruled by the 

Dallas Court of Civil Appeals in United States Fire Ins. 

Co. v. Stricklin, 547 S.W.2d 338 (Tex. Civ. App. -- Dallas 1977, no writ). Stricklin adopted the dissenting opinion in Sloan v. Passman, which said that "the requirement of a reasonable explanation implies no stricter 

standard than that applicable to avoidance of a default 

judgment." 538 S.W.2d at 1. Under this standard: 

 

 Any plausible statement of circumstances indicating that failure to file . . . 

was not deliberate or intentional, but was 

the result of inadvertence, mistake, [**5] 

or mischance, [would] be accepted as a 

reasonable explanation, even though 

counsel or his secretary may appear to 

have been lacking in that degree of diligence which careful practitioners normally exercise. 

 

Id. This liberal standard of review encompasses the negligence of counsel as a reasonable explanation for the 

necessity of an extension. See Heritage Life, 751 S.W.2d 

at 231-32; Stricklin, 547 S.W.2d at 339-40. Thus, the 

proper focus under Meshwert is on a lack of deliberate or 

intentional failure to comply. See Heritage Life, 751 

S.W.2d at 232; Meshwert, 549 S.W.2d at 384. Any conduct short of deliberate or intentional noncompliance 

qualifies as inadvertence, mistake or mischance -- even if 

that conduct can also be characterized as professional 

negligence. See Heritage Life, 751 S.W.2d at 232. 

We conclude that the view espoused in Espinoza is 

too strict and that the more lenient standard enunciated in 

Heritage Life is correct. In applying the Heritage Life

standard, we have determined Garcia's attempted late 

filing was not intentional or deliberate, but was due to 

the attorney's misunderstanding of the law. Accordingly, 

we [**6] hold that the explanation offered is a reasonable one within the ambit of rule 41(a)(2). 

We reverse the judgment of the court of appeals and

remand the cause to that court for further proceedings. 
| | Caution

As of: April 7, 2015 5:42 PM EDT

Gardner v. U.S. Imaging, Inc.

Supreme Court of Texas

December 19, 2008, Opinion Delivered

NO. 08-0268

Reporter

274 S.W.3d 669; 2008 Tex. LEXIS 1138; 52 Tex. Sup. J. 229

CRAIG GARDNER AND THELMA GARDNER,

PETITIONERS, v. U.S. IMAGING, INC. D/B/A SADI

PAIN MANAGEMENT AND BERNEY KESZLER, M.D.,

RESPONDENTS

Subsequent History: Reported at Gardner v. U.S.

Imaging Inc., 2008 Tex. LEXIS 1155 (Tex., Dec. 19,

2008)

Prior History: [**1] ON PETITION FOR REVIEW

FROM THE COURT OF APPEALS FOR THE FOURTH

DISTRICT OF TEXAS.

U.S. Imaging, Inc. v. Gardner, 274 S.W.3d 693, 2007

Tex. App. LEXIS 9998 (Tex. App. San Antonio, Dec. 28,

2007)

Core Terms

expert report, default judgment, trial court, deficient

Case Summary

Procedural Posture

Petitioner patient and petitioner wife brought a health

care liability suit against respondent physician and

respondent health care facility, alleging that the

physician was negligent and failed to obtain the patient's

informed consent. The trial court denied a motion to

dismiss the suit, but the Court of Appeals for the Fourth

District of Texas determined an expert report was

deficient and ordered the case dismissed. Review was

sought.

Overview

The physician performed a lumbar epidural procedure

on the patient. The patient and his wife served an expert

report on the physician and the health care facility. The

patient contended the physician's actions led to the

patient contracting spinal meningitis, which caused his

hearing loss. Both the physician and the health care

facility objected to the patient's expert report, and they

moved for dismissal under Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(b). The health care facility also

complained that it was not timely served with the report.

Nevertheless, the health care facility had defaulted, and

it made little sense to require service of the expert report

on a party who by default had admitted to the allegations.

When the health care facility failed to timely answer the

suit, the statutory period was tolled until the health care

facility made an appearance. The expert report was

served well within the statutory period. Also, the report

was sufficient because the health care facility's liability

was vicarious through the physician.

Outcome

The supreme court reversed the intermediate appellate

court, and the matter was remanded to the trial court for

further proceedings consistent with the opinion.

LexisNexis® Headnotes

Evidence > ... > Testimony > Expert Witnesses > General

Overview

Healthcare Law > ... > Actions Against Facilities > Facility

Liability > General Overview

Healthcare Law > Healthcare Litigation > Actions Against

Healthcare Workers > Doctors & Physicians

Torts > Malpractice & Professional Liability > Healthcare

Providers

HN1 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)

provides that a health care liability suit must be

dismissed if a non-compliant report is served, subject to

the availability of one thirty-day extension to cure under

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

Evidence > ... > Testimony > Expert Witnesses > General

Overview
Healthcare Law > ... > Actions Against Facilities > Facility

Liability > General Overview

Healthcare Law > Healthcare Litigation > Actions Against

Healthcare Workers > Doctors & Physicians

Torts > Malpractice & Professional Liability > Healthcare

Providers

HN2 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)

states that, within 120 days of filing an original petition,

a claimant must serve on each party or the party's

attorney one or more expert reports.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

HN3 For a default judgment to be set aside, the plaintiff

must be placed in no worse position than he would have

been had an answer been filed.

Evidence > ... > Testimony > Expert Witnesses > General

Overview

Healthcare Law > ... > Actions Against Facilities > Facility

Liability > General Overview

Torts > Malpractice & Professional Liability > Healthcare

Providers

HN4 When a party's alleged health care liability is

purely vicarious, a report that adequately implicates the

actions of that party's agents or employees is sufficient.

Counsel: For Mr. Craig Gardner, PETITIONER: Ms.

Elizabeth Leslie Higginbotham, Higginbotham &

Associates, Austin, TX.; Mr. William M. Nichols, William

M. Nichols, P.C., San Antonio, TX.

For U.S. Imaging Inc., RESPONDENT: Mr. Lynn Cullen

Moore, Ms. Debra Ibarra Mayfield, Mr. Nathan

Montgomer Rymer, Rymer Moore Jackson & Echols,

P.C., Houston, TX.

For Mr. Berney Keszler, M.D., RESPONDENT: Mr.

Michael J. Mooris, Morris & Allen, New Braunfels, TX.;

Ms. Stephanie S. Bascon, Law Office of Stephanie S.

Bascon PLLC, New Braunfels, TX.

Opinion

[*670] PER CURIAM

Craig Gardner and Thelma Gardner brought this health

care liability suit against Dr. Berney Keszler, who

performed a lumbar epidural procedure on Craig, and

U.S. Imaging, Inc. d/b/a SADI Pain Management

("SADI"), the owner and operator of the facility where

the procedure was performed. The Gardners served an

expert report on Dr. Keszler and SADI, who both

contested the report as untimely and deficient. See

TEX. CIV. PRAC. & REM. CODE § 74.351(a). The trial

court denied the defendants' motion to dismiss the suit,

but the court of appeals determined the report was

deficient and ordered the case dismissed. S.W.3d at .

Although we do not disturb the court of appeals'

determination that the report was deficient, in light of

our decision in Leland v. Brandal, 257 S.W.3d 204 (Tex.

2008), we vacate the court of appeals' judgment and

remand the case to the trial court to consider granting

the Gardners an extension to cure under section

74.351(c) of the Texas Civil Practice and Remedies

Code.

On August 24, 2006, the Gardners filed this suit alleging

that Dr. Keszler was negligent in choosing to

[**2] perform a lumbar epidural procedure, that he did

not conform to the standard of care while performing the

procedure, and that he failed to obtain Craig Gardner's

informed consent. The Gardners contend Dr. Keszler's

actions led to Craig's contracting spinal meningitis,

which caused his hearing loss. Dr. Keszler timely

answered the suit, and pursuant to section 74.351(a),

the Gardners served Dr. Keszler with an expert report

from Dr. Edson O. Parker (the "Parker report") within

120 days of filing suit. TEX. CIV. PRAC. & REM. CODE

§ 74.351(a).

Unlike Dr. Keszler, SADI failed to timely answer the suit

and, before the 120-day period for filing an expert report

expired on December 22, 2006, the Gardners moved

for default judgment against SADI. The trial court

rendered a default judgment on December 14, 2006,

and severed the suit against SADI. Upon learning of the

default judgment, SADI filed an answer in the severed

suit, along with a motion for new trial and a motion to set

aside the default judgment. Pursuant to the parties'

agreement, the court, on February 8, 2007, granted a

new trial and set aside the default judgment. In

accordance with the agreed order, the Gardners

nonsuited the severed [**3] suit, SADI filed an answer

in the original suit on February 12, and the Gardners

filed an amended petition in the original suit on February

16. On March 20, the Gardners served SADI with the

expert report they had served on Dr. Keszler.

Dr. Keszler and SADI objected to the report and moved

for dismissal under HN1 section 74.351(b), which

274 S.W.3d 669, *669; 2008 Tex. LEXIS 1138, **1

Page 2 of 4
provides that a health care liability suit must be

dismissed if a non-compliant report is served, subject to

the availability of one thirty-day extension to cure under

section 74.351(c). TEX. CIV. PRAC. & REM. CODE §

74.351(b), (c); see Lewis v. Funderburk, 253 S.W.3d

204, 207 (Tex. 2008). The trial court, presumably finding

that the report complied with the statute, denied the

defendants' motions to dismiss. The court of appeals

reversed, however, reasoning that the report was

deficient because the discussion of causation was

conclusory. S.W.3d at . The court remanded the case

to the trial court to award the defendants reasonable

attorneys' fees and costs pursuant to section 74.351(b).

Id. at . In their motion for rehearing before the court of

appeals, [*671] the Gardners argued that, in light of our

decision in Leland, 257 S.W.3d 204, the court of

[**4] appeals should have also remanded the suit to the

trial court to consider granting a thirty-day extension to

cure. 1 We agree, and reject the defendants' contention

that the Parker report is so deficient as to constitute no

report at all. See Ogletree v. Matthews, 262 S.W.3d

316, 323 (Tex. 2007) (WILLETT, J., concurring);

Funderburk, 253 S.W.3d at 211 (WILLETT, J.,

concurring). 2

SADI asserts an additional challenge, contending it was

not served with an expert report within the statutory

deadline. HN2 Section 74.351(a) states that, within 120

days of filing an original petition, a claimant must "serve

[**5] on each party or the party's attorney one or more

expert reports." TEX. CIV. PRAC. & REM. CODE §

74.351(a). Because SADI was named in the original

petition as a party to this suit, the Gardners were

required to serve it with a report before the statutory

period expired on December 22, 2006, and it is

undisputed they failed to do so. However, before the

120-day period expired, SADI defaulted and judgment

was taken against it. The statute does not specify the

effect of a default judgment on the 120-day period. But

the effect of default on a plaintiff's claim for unliquidated

damages is clear: once a default judgment is taken, all

factual allegations contained in the petition, except the

amount of damages, are deemed admitted. See Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.

1992). In light of the expert-report requirement's dual

purpose to inform the served party of the conduct called

into question and to provide a basis for the trial court to

conclude that the plaintiff's claims have merit, it makes

little sense to require service of an expert report on a

party who by default has admitted the plaintiff's

allegations. Moreover, our jurisprudence requires that,

HN3 for a [**6] default judgment to be set aside, the

plaintiff must be placed "in no worse position than he

would have been had an answer been filed . . . ."

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388,

133 S.W.2d 124, 125 (Tex. 1939). Accordingly, when

SADI failed to timely answer the Gardners' suit by the

Monday following the expiration of twenty days after it

was served, see TEX. R. CIV. P. 99(b), the statutory

period for serving it with an expert report was tolled until

such time as SADI made an appearance. Once the

default judgment was set aside and SADI filed an

answer, tolling ended and the Gardners had 100 days

remaining in which to serve SADI with an expert report.

SADI filed an answer in the original suit on February 12,

and the Gardners served it with an expert report on

March 20, well within the remaining statutory period.

SADI additionally contends it was not served with an

expert report because the report that was served does

not mention SADI or implicate its behavior. The

Gardners respond that because SADI's alleged liability

is purely vicarious in nature, the report as to Dr. Keszler

was sufficient. To the extent the allegations against

SADI are based upon respondeat superior, we agree

with [**7] the Gardners. HN4 When a party's alleged

health care liability is purely vicarious, [*672] a report

that adequately implicates the actions of that party's

agents or employees is sufficient. See Univ. of Tex.

Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex.

App.--Houston [1st Dist.] 2008, no pet.); Univ. of Tex.

Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.

App.--Dallas 2006, no pet.); Casados v. Harris Methodist

H-E-B, No. 2-05-080-CV, 2006 Tex. App. LEXIS 6357,

at *12-*13 (Tex. App.--Fort Worth July 20, 2006, no

pet.)(not designated for publication) . Thus, to the extent

the Gardners allege that SADI is liable only vicariously

for Dr. Keszler's actions, the expert report requirement

is fulfilled as to SADI if the report is adequate as to Dr.

Keszler.

1 Because the Gardners argued that the trial court's decision should have been affirmed, and remand constitutes lesser

included relief, the Gardners need not have requested an extension earlier to preserve such relief. See Martinez-Partido v.

Methodist Specialty & Transplant Hosp., 267 S.W.3d 881 (Tex. 2008).

2

The defendants additionally contend the report is deficient because Dr. Parker was not qualified to render an opinion.

Because such a deficiency would be subject to cure on remand, we do not address the defendants' challenge to Dr. Parker's

qualifications. Funderburk, 253 S.W.3d at 207.

274 S.W.3d 669, *670; 2008 Tex. LEXIS 1138, **3

Page 3 of 4
We grant the petition and, without hearing oral

argument, reverse the court of appeals' judgment and

remand to the trial court for further proceedings

consistent with this opinion. See TEX. R. APP. P. 59.1,

60.2(f).

OPINION DELIVERED: December 19, 2008

274 S.W.3d 669, *672; 2008 Tex. LEXIS 1138, **7

Page 4 of 4
Page 1 

1 of 1 DOCUMENT 

RAYLEE GILSTRAP, Appellant v. JASON CALLEY, Appellee 

NO. 14-04-01064-CV 

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON 

2004 Tex. App. LEXIS 11035

December 9, 2004, Rendered 

December 9, 2004, Memorandum Opinion Filed 

PRIOR HISTORY: [*1] On Appeal from the 

405th District Court. Galveston County, Texas. Trial 

Court Cause No. 01CV1010. 

DISPOSITION: Appeal is dismissed. 

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant, a pro se litigant, sought review of a judgment from the 405th District Court, Galveston County (Texas), in a civil case. 

OVERVIEW: No motion for new trial was filed. The 

notice of appeal was filed more than 30 days after entry 

of judgment; hence, it was untimely under Tex. R. App. 

P. 26.1. Moreover, the notice of appeal was not filed 

within the 15-day grace period provided by Tex. R. App. 

P. 26.3. The litigant claimed that he did not receive notice of entry of final judgment; however, he had not 

sought to establish late notice of a judgment under the 

procedures set out in Tex. R. Civ. P. 306a(4), (5). The 

court observed that pro se litigants were held to the same 

standards as licensed attorneys and were required to 

comply with all applicable rules of procedure. Accordingly, the court declined to extend the deadline for perfecting the appeal. 

OUTCOME: The court dismissed the appeal. 

LexisNexis(R) Headnotes

Civil Procedure > Judgments > Relief From Judgment 

> Motions for New Trials

Civil Procedure > Appeals > Reviewability > Time Limitations

Governments > Legislation > Statutes of Limitations > 

Time Limitations

[HN1] A notice of appeal must be filed within 30 days 

after the judgment is signed when appellant has not filed 

a timely motion for new trial, motion to modify the

judgment, motion to reinstate, or request for findings of 

fact and conclusion of law. Tex. R. App. P. 26.1. 

Civil Procedure > Pleading & Practice > Pleadings >

Time Limitations > Extensions

Civil Procedure > Appeals > Reviewability > Time Limitations

Governments > Legislation > Statutes of Limitations > 

Time Limitations

[HN2] A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Tex. R. App. P. 

26.1, but within the 15-day grace period provided by 

Rule 26.3 for filing a motion for extension of time. 

However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely 

manner. Tex. R. App. P. 26.3, 10.5(b)(1)(C). 

Civil Procedure > Parties > Self-Representation > 

General Overview

[HN3] Pro se litigants are held to the same standards as 

licensed attorneys, and therefore they must comply with 

all applicable rules of procedure. 
Page 2 

2004 Tex. App. LEXIS 11035, * 

COUNSEL: For APPELLANTS: Raylee Gilstrap, Iowa 

Park, TX. 

For APPELLEES: Jerry A. Pusch, Kurt Arbuckle, Houston, TX. 

JUDGES: Panel consists of Justices Anderson, Hudson, 

and Frost. 

OPINION 

MEMORANDUM OPINION 

This is an attempted appeal from a judgment, signed

June 11, 2003. No motion for new trial was filed. Appellant's notice of appeal was filed on October 4, 2004. 

[HN1] The notice of appeal must be filed within 

thirty days after the judgment is signed when appellant 

has not filed a timely motion for new trial, motion to 

modify the judgment, motion to reinstate, or request for 

findings of fact and conclusion of law. See TEX. R. APP. 

P. 26.1

Appellant's notice of appeal was not filed timely. 

[HN2] A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but 

within the fifteen-day grace period provided by Rule 26.3

for filing a motion for extension of time. See Verburgt 

v. Dorner, 959 S.W.2d 615, 617-18, 41 Tex. Sup. Ct. J. 

138 (1997) [*2] (construing the predecessor to Rule 

26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a 

timely manner. See TEX. R. APP. P. 26.3, 10.5(b)(1)(C); 

Verburgt, 959 S.W.2d at 617-18. Appellant's notice of 

appeal was not filed within the fifteen-day period provided by Rule 26.3

On November 4, 2004, notification was transmitted 

to all parties of the Court's intent to dismiss the appeal 

for want of jurisdiction. See TEX. R. APP. P. 42.3(a). 

Appellant filed a response, claiming that he was never 

apprised of entry of final judgment. Because appellant 

filed a notice of appeal, he did, at some point, become 

aware of entry of final judgment. If appellant did not 

receive timely notice of the trial court judgment, he 

could have extended the deadlines for appeal by following the procedures set out in TEX. R. CIV. P. 

306a(4)-(5). [HN3] Pro se litigants are held to the same 

standards as licensed attorneys, and therefore they must 

comply with all applicable Rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85, 22 

Tex. Sup. Ct. J. 43 (Tex. 1978) [*3] (holding that litigants who represent themselves must comply with procedures established by Rules notwithstanding fact that 

they are not licensed attorneys). Because appellant failed 

to follow the procedures for establishing late notice of 

the judgment, the deadline for perfecting the appeal was 

not extended. We find that appellant's response to our 

notice regarding the untimely notice of appeal fails to 

demonstrate that this Court has jurisdiction to entertain 

the appeal. 

Accordingly, the appeal is ordered dismissed. 

PER CURIAM 
| | Positive

As of: April 7, 2015 5:43 PM EDT

Ginn v. Forrester

Supreme Court of Texas

March 27, 2009, Opinion Delivered

NO. 08-0163

Reporter

282 S.W.3d 430; 2009 Tex. LEXIS 112; 52 Tex. Sup. J. 491

EMMANUEL GINN, A&R TRANSPORT, INC., KEITH

JACKSON, STEVE BRANTLEY, PETITIONERS, v.

JEFF FORRESTER AND KIM FORRESTER,

RESPONDENTS

Prior History: [**1] ON PETITION FOR REVIEW

FROM THE COURT OF APPEALS FOR THE

FOURTEENTH DISTRICT OF TEXAS.

Forrester v. Ginn, 282 S.W.3d 513, 2008 Tex. App.

LEXIS 125 (Tex. App. Houston 14th Dist., Jan. 10,

2008)

Core Terms

notice, trial court, notation, want of prosecution, face of

the record, court of appeals

Case Summary

Procedural Posture

Plaintiffs filed suit against defendants for damages

arising out of a traffic accident. The trial court dismissed

the case for want of prosecution. The plaintiffs filed a

notice of restricted appeal. The Court of Appeals for the

14th District of Texas reversed the dismissal.

Defendants appealed, contending the court of appeals

erred in holding that the requirements for a restricted

appeal were met.

Overview

Plaintiffs' restricted appeal required an error that was

apparent on the face of the record under Tex. R. App. P.

30. Plaintiffs contended that they never received notice

of the dismissal for want of prosecution as required by

Tex. R. Civ. P. 165a(1) and Tex. R. Civ. P. 306a(3). The

court of appeals suggested that they supplement the

record with a notation from the clerk that no notice was

contained in the record, and plaintiffs did so. Concluding

that the clerk's notation that there was no notice in the

record affirmatively demonstrated the trial court's failure

to notify plaintiffs of the impending and subsequent

dismissal, the court of appeals reversed the dismissal.

The court agreed with defendants that this was error.

Although the clerk was required to give notice of the

dismissal, the clerk was not required to enter any such

notice on the record. A record that was silent was

insufficient for a restricted appeal. In this case, the

clerk's notation that the record was silent as to the

giving of notices was not more that an affirmation of a

silent record, which was insufficient to establish

reversible error in a restricted appeal.

Outcome

The court reversed the court of appeals' judgment and

rendered judgment dismissing the case.

LexisNexis® Headnotes

Civil Procedure > ... > Standards of Review > Plain Error >

Obvious Errors

HN1 A restricted appeal requires error that is apparent

on the face of the record; error that is merely inferred

will not suffice.

Civil Procedure > Dismissal > Involuntary Dismissals >

Failure to Prosecute

HN2 Before a trial court may properly dismiss a case for

want of prosecution, notice of the court's intention to

dismiss and the date and place of the dismissal hearing

shall be sent by the clerk to each attorney of record.

Tex. R. Civ. P. 165a(1).

Civil Procedure > ... > Standards of Review > Plain Error >

Obvious Errors

HN3 When a party claims in a restricted appeal that

required notice was not given or a required hearing was
never held, the error must appear on the face of the

record. Tex. R. App. P. 30. When extrinsic evidence is

necessary to challenge a judgment, the appropriate

remedy is by motion for new trial or by bill of review filed

in the trial court so that the trial court has the opportunity

to consider and weigh factual evidence.

Civil Procedure > Dismissal > Involuntary Dismissals >

Failure to Prosecute

Civil Procedure > ... > Standards of Review > Plain Error >

Obvious Errors

Governments > Courts > Clerks of Court

HN4 As to what constitutes error on the face of the

record for purposes of Tex. R. App. P. 30, silence is not

enough. The rules governing dismissals for want of

prosecution direct the district clerk to mail notice

containing the date and place of hearing at which the

court intends to dismiss the case, Tex. R. Civ. P. 165a(1),

and a similar notice of the signing of the dismissal order,

Tex. R. Civ. P. 306a(3). But the rules do not impose

upon the clerk an affirmative duty to record the mailing

of the required notices; accordingly, the absence of

proof in the record that notice was provided does not

establish error on the face of the record.

Counsel: For Ginn, Emmanuel, Petitioner: Mr. Edward

E. Rundell, Gold, Weems, Bruser, Sues & Rundell,

Alexandria LA.

For Forrester, Jeff, Respondent: Mr. Michael C.

Engelhart, Ms. Kelly Alice Greenwood, Engelhart &

Greenwood, L.L.P., Houston TX.

Opinion

[*431] PER CURIAM

HN1 A restricted appeal requires error that is apparent

on the face of the record; error that is merely inferred

will not suffice. In this case, the clerk's supplemental

record contains a notation that the clerk's office was

unable to locate documents indicating notice was sent

or a hearing was held on the trial court's dismissal for

want of prosecution. Construing the notation as

affirmative evidence that the trial court failed to provide

notice, a divided court of appeals concluded the

requirements for a restricted appeal were met. S.W.3d

. Because the clerk has no affirmative duty to record

the giving of notice, however, a statement that the

record reflects none cannot establish error on the face

of the record. Accordingly, we reverse the court of

appeals' judgment and render judgment dismissing the

case.

Jeff and Kim Forrester filed suit against Emmanuel

Ginn, A&R Transport, Inc., Keith Jackson, and Steve

Brantley (collectively Ginn) on January 29, 2004, for

damages arising out of a traffic accident. On May 18,

2005, the trial court notified all parties that unless either

a judgment [**2] or scheduling order was signed or a

verified motion to retain was filed by June 27, the case

would be dismissed for want of prosecution. On June

17, Forrester filed a verified motion to retain the case,

which the trial court granted after inserting the words

"for 60 days" at the end of the paragraph ordering

retention. The trial court subsequently granted

Forrester's [*432] motion to substitute counsel, but the

record reflects no further activity until December 2 when

the trial court dismissed the case for want of prosecution.

Six months later, Forrester filed a notice of restricted

appeal.

The court of appeals initially denied Forrester's restricted

appeal for failure to demonstrate error apparent on the

face of the record, but suggested that this requirement

might be satisfied by a notation from the trial court clerk

indicating that no documents were available to show

the notice allegedly not given or the record of the

hearing allegedly not had. Forrester v. Ginn, No.

14-06-00549-CV, 2007 Tex. App. LEXIS 5826 at *14

(Tex. App.--Houston [14th Dist.] July 26, 2007), reh'g

granted, vacated by 282 S.W.3d 513, 2008 Tex. App.

LEXIS 125. Apparently relying on the court of appeals'

suggestion, Forrester requested a supplemental

[**3] clerk's record containing the following documents,

or an indication in writing that the following documents

were not contained in the clerk's file:

1. Notice of Dismissal for Want of Prosecution,

Dated December 2, 2005;

2. Any notice of intent to dismiss dated after

June 27, 2005 and before December 2, 2005;

3. Any notice of any hearing scheduled for

December 2, 2005 regarding the court's intent

to dismiss the case;

4. The record of any hearing regarding the

court's intent to dismiss held on December 2,

2005 in this case;

5. Any trial court docket sheet entry for any

notice of a hearing to be held on December 2,

2005;

282 S.W.3d 430, *430; 2009 Tex. LEXIS 112, **1

Page 2 of 3
6. Any trial court docket sheet entry regarding

any hearing on the court's intent to dismiss held

on December 2, 2005;

7.Any notice of the December 2, 2005 dismissal

order sent to Plaintiffs[] or their counsel . . . .

In response to Forrester's request, the clerk provided a

supplemental record that concluded with the statement

"NOTE: Unable to locate other items requested."

Concluding on rehearing that the clerk's notation

affirmatively demonstrated the trial court's failure to

notify Forrester of the impending and subsequent

dismissal, the court of appeals reversed the trial

[**4] court's judgment of dismissal and remanded the

case for further proceedings. S.W.3d , . Ginn filed

this petition for review contending the court of appeals

erred in holding that the requirements for a restricted

appeal were met. We agree.

HN2 Before a trial court may properly dismiss a case for

want of prosecution, "[n]otice of the court's intention to

dismiss and the date and place of the dismissal hearing

shall be sent by the clerk to each attorney of record."

TEX. R. CIV. P. 165a(1). HN3 When a party claims in a

restricted appeal that required notice was not given or a

required hearing was never held, the error must appear

on the face of the record. See TEX. R. APP. P. 30; Gold

v. Gold, 145 S.W.3d 212, 213 (Tex. 2004); Alexander v.

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

Gen. Elec. Co. v. Falcon Ridge Apartments, Joint

Venture, 811 S.W.2d 942, 943 (Tex. 1991). When

extrinsic evidence is necessary to challenge a judgment,

the appropriate remedy is by motion for new trial or by

bill of review filed in the trial court so that the trial court

has the opportunity to consider and weigh factual

evidence. See Falcon Ridge, 811 S.W.2d at 944.

Accordingly, we have held that affidavits [**5] filed for

the first time in the appellate court from the district clerk

and its counsel averring, respectively, that notice was

neither given nor received constituted extrinsic evidence

and [*433] did not support a restricted appeal. Id. at

943-44.

HN4 As to what does constitute error on the face of the

record, we have clearly said that silence is not enough.

The rules governing dismissals for want of prosecution

direct the district clerk to mail notice containing the date

and place of hearing at which the court intends to

dismiss the case, TEX. R. CIV. P. 165a(1), and a similar

notice of the signing of the dismissal order, see TEX. R.

CIV. P. 306a(3). But the rules do not impose upon the

clerk an affirmative duty to record the mailing of the

required notices; accordingly, the absence of proof in

the record that notice was provided does not establish

error on the face of the record. See Alexander, 134

S.W.3d at 849 ("'The absence from the record of

affirmative proof that notice of intent to dismiss or of the

order of dismissal was provided does not establish

error.'" (quoting Falcon Ridge, 811 S.W.2d at 944)).

Forrester contends, and the court of appeals held, that

the clerk's notation in the trial [**6] record that the

clerk's office was "[u]nable to locate other items

requested" affirmatively reveals that the trial court failed

to notify Forrester of its intent to dismiss the case.

Because the clerk's notation is in writing and appears in

the record, Forrester asserts, the record as to notice is

not silent but rather demonstrates on its face that no

notice was given. According to Forrester, the clerk's

notation comports with the requirements we have

articulated for a restricted appeal. We fail to see the

distinction, however, between a record that is silent and

a record that contains a written notation that the record

is silent; either way, proof of error is absent. See Gold,

145 S.W. 3d at 213; Alexander, 134 S.W. 3d at 849-50;

Falcon Ridge, 811 S.W.2d at 943-44. The clerk's

notation reflected nothing more than affirmation of a

silent record, which is insufficient to establish reversible

error in a restricted appeal.

We reverse the court of appeals' judgment and render

judgment dismissing the case.

OPINION DELIVERED: March 27, 2009

282 S.W.3d 430, *432; 2009 Tex. LEXIS 112, **3

Page 3 of 3
| | Positive

As of: April 7, 2015 5:44 PM EDT

Grondona v. Sutton

Court of Appeals of Texas, Third District, Austin

October 22, 1998, Filed

NO. 03-98-00454-CV

Reporter

991 S.W.2d 90; 1998 Tex. App. LEXIS 6541

Marco Bence Grondona, Santa Cristina Sociedad

Anonima, Atahualpa del Monte Sociedad Anonima, and

Ignacio Maria Steverlynck, Appellants v. Joseph H.

Sutton, Appellee

Subsequent History: [**1] Petition for Review Denied

October 7, 1999.

Prior History: FROM THE DISTRICT COURT OF

TRAVIS COUNTY, 200TH JUDICIAL DISTRICT. NO.

98-02843, HONORABLE JON N. WISSER, JUDGE

PRESIDING.

Disposition: Appeal Dismissed for Want of Jurisdiction

on Appellee's Motion.

Core Terms

notice, date of notice, days, plenary power, trial court,

notice of appeal, no writ

Case Summary

Procedural Posture

Appellant sought review of a judgment of the District

Court of Travis County, 200th Judicial District (Texas)

that denied appellants' motion to establish late notice of

judgment. Appellant moved the appeals court to deem

their appeal timely filed. Appellee moved for dismissal

of the appeal for want of prosecution.

Overview

Default judgment was entered against appellants on

April 21, and they timely moved for a new trial, which

was denied. First appellant filed a motion to establish

late notice of judgment, asserting that he first had notice

of the judgment on May 19. He filed a notice of appeal

on the same date. Remaining appellants filed notices of

appeal on August 14. First appellant filed an amended

motion to establish late notice of judgment on August

19, which was denied. Appellants moved the appeals

court to deem their appeal timely filed and appellee

moved for dismissal of the appeal for want of jurisdiction.

The appeals court denied appellants' motion and

granted appellee's motion. The court held that since

first appellant failed to provide evidence of when his

attorney learned of the judgment during the trial court's

plenary power, as required by Tex. R. Civ. P. 306a(5),

the ruling had no effect. Thus, first appellant failed to

invoke the trial court's jurisdiction and his notice of

appeal was untimely. Remaining appellants' notices

were likewise ineffective. Appellee's motion to dismiss

the appeal was granted.

Outcome

The court held that the district court's denial of

appellants' motion to establish late notice of judgment

had no effect because it was not made during the

district court's plenary power. The court granted

appellee's motion to dismiss the appeal for want of

prosecution holding appellants' notice of appeal was

untimely.

LexisNexis® Headnotes

Civil Procedure > Attorneys > General Overview

Civil Procedure > Judgments > Entry of Judgments >

General Overview

HN1 An exception to the rule that procedural timetables

run from the date the judgment is signed exists for a

party who learns of the judgment more than 20 but less

than 90 days after it was signed. Tex. R. Civ. P. 306a(4);

Tex. R. App. P. 4.2. To benefit from the exception, the

party must prove in the trial court, on sworn motion and

notice, the date he or his attorney first received notice or

acquired actual knowledge of the signing. Tex. R. Civ. P.
306a(5). If evidence at the hearing establishes the date

of notice, appellate deadlines and the court's plenary

power start from that date rather than the date the

judgment was signed. Tex. R. Civ. P. 306a(4); Tex. R.

App. P. 4.2(a)(1).

Civil Procedure > ... > Subject Matter Jurisdiction >

Jurisdiction Over Actions > General Overview

Civil Procedure > Judgments > Entry of Judgments >

General Overview

HN2 Complying with the provisions of Tex. R. Civ. P.

306a is a jurisdictional requisite. The sworn motion

serves the purpose of establishing a prima facie case of

lack of timely notice, thereby invoking the trial court's

jurisdiction for the limited purpose of holding a hearing

to determine the date of notice. If the movant fails to

establish the applicability of the exception in the manner

prescribed, the trial court lacks jurisdiction to determine

the date of notice and any order doing so is void.

Counsel: FOR APPELLANT: Mr. Robert C. Alden,

Bracewell & Patterson, L.L.P., Austin, TX.

FOR APPELLEE: Mr. Edward P. Watt, Watt &

Associates, P.C., Austin, TX.

Judges: Before Justices Powers, Aboussie and Kidd.

Opinion

[*91] PER CURIAM

Appellants Marco Bence Grondona, Santa Cristina

Sociedad Anonima, Atahualpa del Monte Sociedad

Anonima, and Ignacio Maria Steverlynck move this

Court to deem their appeal timely perfected. Appellee

Joseph Sutton moves to dismiss the appeal for want of

jurisdiction.

On April 21, 1998, the trial court signed a default

judgment against appellants. Appellants timely moved

for a new trial on May 21, and the court denied the

motion by an order signed on July 15. On August 11,

Grondona filed a motion to establish late notice of

judgment, asserting that he first had notice of the

judgment on May 19. He filed a notice of appeal on the

same date. The remaining appellants filed notices of

appeal on August 14. Grondona amended his motion to

establish late notice of judgment onAugust 19, and [**2]

on September 3, the trial court signed an order denying

Grondona's motion.

HN1 An exception to the rule that procedural timetables

run from the date the judgment is signed exists for a

party who learns of the judgment more than twenty, but

less than ninety, days after it was signed. Tex. R. Civ. P.

306a(4); Tex. R. App. P. 4.2. To benefit from the

exception, the party must prove in the trial court, on

sworn motion and notice, the date he or his attorney first

received notice or acquired actual knowledge of the

signing. Tex. R. Civ. P. 306a(5). If evidence at the

hearing establishes the date of notice, appellate

deadlines and the court's plenary power start from that

date rather than the date the judgment was signed. Tex.

R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a)(1).

HN2 Complying with the provisions of Rule 306a is a

jurisdictional requisite. Memorial Hosp. v. Gillis, 741

S.W.2d 364, 365-66 (Tex. 1987); In re Simpson, 932

S.W.2d 674, 677 (Tex. App.--Amarillo 1996, no writ).

The sworn motion serves the purpose of establishing a

prima- facie case of lack of timely notice, thereby

invoking the trial court's jurisdiction for the limited [*92]

purpose of holding a hearing to determine the date of

[**3] notice. Carrera v. Marsh, 847 S.W.2d 337, 342

(Tex. App.--El Paso 1993, orig. proceeding). If the

movant fails to establish the applicability of the exception

in the manner prescribed, the trial court lacks jurisdiction

to determine the date of notice and any order doing so

is void. Gillis, 741 S.W.2d at 365-66; Simpson, 932

S.W.2d at 678.

We first consider whether Grondona's motion invoked

the trial court's jurisdiction to hear evidence to determine

the date of notice. Grondona filed his motion eighty-four

days after the date he claims to have learned of the

default judgment. Neither Rule 306a nor Rule 4 states

when a party must move for a determination of late

notice. Several courts of appeals have held that a party

must file such a motion within thirty days of acquiring

notice. See Gonzalez v. Sanchez, 927 S.W.2d 218, 221

(Tex. App.--El Paso 1996, no writ); Montalvo v. Rio Nat'l

Bank, 885 S.W.2d 235, 237 (Tex. App.--Corpus Christi

1994, no writ); Womack-Humphreys Architects, Inc. v.

Barrasso, 886 S.W.2d 809, 816 (Tex.App.--Dallas 1994,

writ denied).

This Court, however, has concluded that a party can file

such a motion more than thirty days after receiving [**4]

notice, as long as he files it within the court's plenary

power counted from the date of notice. Vineyard Bay

Dev. Co. v. Vineyard on Lake Travis, 864 S.W.2d 170,

991 S.W.2d 90, *90; 1998 Tex. App. LEXIS 6541, **1

Page 2 of 3
172 & n.1 (Tex. App.--Austin 1993, writ denied). In

Vineyard Bay, the motion to determine notice was filed

thirty-one days after the date of notice but during the

court's plenary power, which had been extended by a

motion for new trial. Id. Here, Grondona moved for a

new trial on May 21, two days after the asserted date of

notice, and the trial court overruled the motion on July

15. The court's plenary power would therefore have

expired thirty days later on August 14. Grondona's

motion, filed on August 11, was timely.

To make a prima-facie case of lack of timely notice,

Grondona had to offer evidence that neither he nor his

attorney learned of the judgment within twenty days

after it was signed. Tex. R. Civ. P. 306a(5); Simpson,

932 S.W.2d at 678; see Tex. R. App. P. 4.2(c). By

affidavit attached to the motion, Grondona states that

he first received notice of the judgment on May 19.

Grondona offered no evidence, however, of when his

attorney first learned of the judgment.

On August 19, Grondona filed [**5] an amended motion

to determine the date of notice. The amended motion

includes the affidavit of Grondona's attorney, who avers

that he did not know of the judgment until May 19.

Grondona therefore could not have made a prima-facie

case until the amended motion was filed on August 19,

beyond the trial court's plenary power. By failing to offer

prima-facie evidence of late notice of judgment during

the trial court's plenary power, Grondona did not invoke

the court's jurisdiction to determine the date of notice.

Barrasso, 886 S.W.2d at 816; Montalvo, 885 S.W.2d at

237-38; see Owen v. Hodge, 874 S.W.2d 301, 303 (Tex.

App.--Houston [1st Dist.] 1994, no writ).

Even if Grondona had offered prima-facie evidence

during the court's plenary power, he failed to obtain a

ruling on his motion within that period. See Montalvo,

885 S.W.2d at 237-38; Barrasso, 886 S.W.2d at 816;

Conaway v. Lopez, 843 S.W.2d 732, 733 (Tex.

App.--Austin 1992, no writ). The trial court heard the

motion and signed the order overruling it on September

3, beyond the time it would have had power to determine

the date of notice of judgment. The order is therefore of

no effect. 1

[**6] We conclude that Grondona failed to invoke the

trial court's jurisdiction to determine [*93] the date of

notice of the judgment. His notice of appeal, filed 112

days after the judgment was signed, is thus untimely.

See Tex. R. App. P. 26.1. The remaining appellants

assert that they have timely appealed because they

filed their notices of appeal within fourteen days after

Grondona filed his notice of appeal. See Tex. R. App. P.

26.1(d). Because Grondona's notice of appeal is

ineffective to perfect appeal, the remaining notices are

likewise ineffective.

We overrule appellants' motion to deem the appeal

timely perfected. Because we lack jurisdiction over an

appeal that is not timely perfected, we grant Sutton's

motion to dismiss the appeal. Davies v. Massey, 561

S.W.2d 799, 800 (Tex. 1978). We dismiss the appeal for

want of jurisdiction. Tex. R. App. P. 42.3(a).

Before Justices Powers, Aboussie and Kidd

Dismissed for Want of Jurisdiction on Appellee's Motion

Filed: October 22, 1998

1

The court found in its order that the date the judgment was signed remained applicable. Having determined that the trial

court lacked jurisdiction to render the order, we do not review the finding substantively.

991 S.W.2d 90, *92; 1998 Tex. App. LEXIS 6541, **4

Page 3 of 3
Page 1 

Caution 

As of: Mar 30, 2015 

PAUL HERBERT, Appellant v. GREATER GULF COAST ENTERPRISES, INC. 

D/B/A GULF COAST ENTERPRISES, Appellee 

No. 01-94-01240-CV 

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON 

915 S.W.2d 866; 1995 Tex. App. LEXIS 2859

November 16, 1995, Filed 

PRIOR HISTORY: [**1] On Appeal from the 

County Civil Court at Law Number Three. Harris County, Texas. Trial Court Cause No. 627786. CAROLYN D.

HOBSON, Judge. 

This Opinion Substituted on Grant of Appellant Paul

Herbert's Motion for Rehearing for Withdrawn Opinion 

of August 3, 1995, Previously Reported at: 1995 Tex. 

App. LEXIS 1740. 

DISPOSITION: Judgment affirmed in part; reversed 

and remanded in part 

COUNSEL: For Appellant: DAVID S. O'NEIL, MAURICE TATE 3RD., WOODLAND. 

For Appellee: CHUCK PORTZ, HOUSTON. 

JUDGES: Adele Hedges, Justice, Justices Hutson-Dunn 

and Mirabal also sitting. 

OPINION BY: ADELE HEDGES 

OPINION 

 [*869] OPINION ON MOTION FOR REHEARING 

We grant appellant, Paul Herbert's, motion for rehearing, withdraw our opinion of August 3, 1995, and 

substitute this opinion in its stead. 

Paul Herbert appeals a default judgment in favor of

appellee Greater Gulf Coast Enterprises, Inc., D/B/A 

Gulf Coast Enterprises, Inc. (Gulf Coast), in a suit 

brought under Tex. Prop. Code Ann. 162.001 (Vernon 

1984). In five points of error, appellant contends that 

service of process was defective, that the trial court did 

not have personal jurisdiction over him, and that there 

was no evidence to establish misapplication of trust 

funds or quantum meruit or to support the award of exemplary damages. We reverse in part and affirm in part. 

Facts 

Appellant, who resides in Connecticut, is the president of Herbert and Boghosian, Inc. (H&B), a Connecticut corporation [**2] in the business of general contracting. Gulf Coast contracted with H&B to supply labor 

and materials to demolish and reinstall drywall and

acoustical materials. Although Gulf Coast fully performed its obligations, H&B refused to pay as agreed. 

Gulf Coast sued appellant and H&B in Harris County,

Texas to recover the money it alleged it was owed. Both 

H&B and appellant were served in Connecticut under 

Tex. R. Civ. P. 108. Neither filed an answer or made an 

appearance. The trial court granted Gulf Coast's motion 

for default judgment and entered judgment finding appellant and H&B jointly and severally liable for $ 61,373 

actual damages, $ 1,800 in pre-judgment interest, $ 305 

as costs of court, $ 100,000 in exemplary damages and $ 

30,000 in attorney's fees. Within six months after the 

entry of judgment, appellant and H&B filed a petition for 
Page 2 

915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, ** 

writ of error seeking to set aside the default judgment. 

H&B was later dismissed as a party to this appeal on its 

own motion. 

Standard of Review 

Review of a judgment by writ of error is proper only 

if (1) the petition is filed within six months of the signing 

of the judgment [*870] (2) by a party to the lawsuit 

(3) who did not participate in the trial. [**3] Tex. R. 

App. P. 45. Reversal of the judgment is proper only if 

error is apparent from the face of the record. Brown v. 

McLennan County Children's Protective Servs., 627 

S.W.2d 390, 392 (Tex. 1982). In determining whether an 

error appears on the face of the record, a court may consider all the papers on file in the appeal, including the 

statement of facts. DSC Finance Corp. v. Moffitt, 815 

S.W.2d 551, 551 (Tex. 1991). Legal and factual sufficiency of the evidence to support the judgment is an appropriate inquiry on writ of error. See Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex. App.--San 

Antonio 1995, no writ). 

Lack of In Personam Jurisdiction 

In point of error one, appellant contends that the trial 

court erred in granting Gulf Coast a default judgment 

against him because Gulf Coast's petition did not contain 

jurisdictional allegations sufficient to confer in personam 

jurisdiction on the trial court. 

Gulf Coast served appellant under Tex. R. Civ. P. 

108. Allegations in petitions served under this rule must 

be sufficient to meet due process requirements. Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 

496 (Tex. 1988). Service of process [**4] under rule 

108 does not, in and of itself, confer in personam jurisdiction. Id. at 495. To pass constitutional muster, Gulf 

Coast was required to allege (1) that appellant purposefully did some act or consummated some transaction in 

Texas, (2) that the cause of action arose from or was 

connected with such act or transaction, and (3) that the 

assumption of jurisdiction by the trial court will not offend "traditional notions of fair play and substantial justice . . . ." Siskind v. Villa Foundation for Education, 642 

S.W.2d 434, 436 (Tex. 1982). 

In this case, Gulf Coast's pleadings set forth: 

Defendant, H&B promised to pay for the labor and 

materials and has accepted all and has used and benefited 

from installing them in construction contracts for Petrie 

Stores Corporation. 

Although requested to do so, Defendant wholly 

failed and refused to pay as agreed. 

Defendants, H&B and PAUL HERBERT as President are trustees for construction draws to which Plaintiff 

is a beneficiary in accordance with Texas Property Code 

Section 162. Defendants have diverted and disposed of 

the corpus of the trust and Plaintiff is entitled to seek 

exemplary damages of at least $ 100,000.00. 

Additionally, [**5] attached to and incorporated 

in the petition are invoices which identify the location of 

the jobsite as Houston, Texas and the business address of 

Gulf Coast as Porter, Texas. 

The allegations in Gulf Coast's petition are sufficient 

to confer in personam jurisdiction. Section 162 of the 

Property Code establishes that construction payments are 

trust funds for the purpose of the statute if the payments 

were made to a contractor or to an officer under a construction contract for the improvement of specific real 

estate in Texas. Tex. Prop. Code Ann. 162.001 (Vernon 

1984). A contractor or an officer who receives trust 

funds is a trustee of the funds. Tex. Prop. Code Ann. 

162.002 (Vernon 1984). Gulf Coast specifically put appellant on notice that he was being sued for liability under this chapter of the Property Code. These contentions 

are sufficient allegation of appellant's purposeful act or 

transaction in the State of Texas. The cause of action, 

collection of money owed under the construction contract, clearly arose out of the transaction. 

We do not believe that jurisdiction over appellant is 

offensive to the ideals of fair play and justice. The Legislature enacted section 162 as a [**6] special protection for contractors and subcontractors in order to avoid 

the injustice of owners' and contractors' refusal to pay for 

work completed. See American Amicable Life Ins. Co. v. 

Jay's Air Conditioning & Heating, Inc., 535 S.W.2d 23, 

26 [*871] (Tex. Civ. App.--Waco 1976, writ ref'd 

n.r.e.). The basic equities weigh in favor of in personam 

jurisdiction. See Siskind, 642 S.W.2d at 436. 

We overrule point of error one. 

Lack of Proper Service 

In point of error two, appellant contends that the trial 

court erred in granting the default judgment because the 

service of process was improper. Specifically, he complains that the officer's return attached to the citation fails 

to reflect service of the petition on him. 

Rule 108 provides: 

Where the defendant is absent from the State, or is a 

nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as 

prescribed for citation to a resident defendant; and such 

notice may be served by any disinterested person competent to make oath of the fact in the same manner provided in Rule 106 hereof. 

Tex. R. Civ. P. 108. Rule 106 provides: 
Page 3 

915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, ** 

(a) Unless the citation or an order [**7] of the 

court otherwise directs, the citation shall be served by 

any person authorized by Rule 103 by 

(1) delivering to the defendant, in person, a true 

copy of the citation with the date of delivery endorsed 

thereon with a copy of the petition attached thereto . . . . 

Tex. R. Civ. P. 106. 

The return and affidavit of Sheriff Ocif, the officer 

in Connecticut who served appellant, states: 

That on March 21, 1994 at 11:30 a.m. I left a true 

and attested copy of the within and foregoing Original 

Petition Citation, Notice to Serve Non-Resident Defendant with my endorsement thereon and a copy of the 

Complaint with and in the hands of the within named 

defendant PAUL HERBERT, 314 Ella Grasso Drive, 

Torrington, CT. 

(Emphasis added.) Appellant contends that the affidavit is defective because it references a complaint, 

while Gulf Coast's pleading was denominated a petition. 

Strict compliance with the rules regarding service of 

citation is required to confer jurisdiction on the trial 

court. See Primate Const., Inc. v. Silver, 884 S.W.2d 151,

152 (Tex. 1994). In a writ of error attack, we indulge no 

presumptions in favor of valid issuance, service, and 

return [**8] of citation. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). 

In spite of these stringent requirements, we believe that 

the sheriff's return of citation reflects proper service on 

appellant. 

We disagree that Woodall v. Lansford, 254 S.W.2d 

540, 543 (Tex. Civ. App.--Fort Worth 1953, no writ)

supports appellant's challenge of the return. In that case, 

the return stated that the sheriff had served a copy of the 

citation on the defendant, but it omitted any reference to 

the petition. Nor does Primate Const., 884 S.W.2d at 

152, mandate a finding of defective return. The return of 

service preprinted form in that case recited that the officer served Plaintiff's Original Petition, which statement 

was inaccurate. The citation accurately reflected that the 

defendant was served with Plaintiff's Second Amended 

Petition, the first pleading which made the defendant a 

party. In both of these cases, the return's deviation from 

absolute accuracy was much more pronounced than in 

this case. 

The return we are reviewing merely refers to the 

original petition as a complaint, a term clearly synonymous with petition. The fact that the original petition is 

referred [**9] to as a complaint does not make it any 

less clear that appellant was served with the appropriate 

documents. Even strict compliance does not require such 

absolute obeisance to the minutest detail. See Boat Superstore, Inc. v. Haner, 877 S.W.2d 376, 379 (Tex. 

App.--Houston [1st Dist.] 1994, no writ); Popkowsi v. 

Gramza, 671 S.W.2d 915, 917 (Tex. App.--Houston [1st 

Dist.] 1984, no writ). 

We overrule point of error two. 

 Legal Insufficiency 

Legal insufficiency review requires that the court 

consider only the evidence [*872] and inferences,

when viewed in their most favorable light, that tend to 

support the finding, and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 

752 S.W.2d 518, 522 (Tex. 1988); Stafford v. Stafford, 

726 S.W.2d 14, 16 (Tex. 1987). If there is any evidence 

of probative force to support the finding, the point must 

be overruled and the finding upheld. Sherman v. First 

Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988); In re 

King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex. 

1951). If there is more than a scintilla of evidence to 

support the finding, the no evidence challenge fails. 

Stafford, 726 S.W.2d at 16. 

Misapplication [**10] of Funds 

In point of error three, appellant contends that the 

trial court erred entering the default judgment because 

there was no evidence that he misapplied trust funds. 

A defendant who defaults admits all allegations of 

facts except unliquidated damages. Stoner v. Thompson, 

578 S.W.2d 679, 684-85 (Tex. 1979). Appellant admitted 

by default the existence of the contract, the performance 

by Gulf Coast, the refusal to pay, the fact that he is a 

trustee of the construction funds for the benefit of Gulf 

Coast under section 162 of the Property Code, and that 

he diverted and disposed of the corpus of the trust. The 

allegations admitted by default in the context of Gulf 

Coast's reference to section 162 suffice to establish that 

appellant misapplied the trust funds. 

Quantum Meruit 

In point of error five, appellant contends that the trial court erred in granting the default judgment because 

there was no evidence to support an award of damages 

based on quantum meruit. 

Quantum meruit is an equitable remedy which does 

not arise out of a contract, but is independent of it. Vortt 

Exploration Co. v. Chevron U.S.A., 787 S.W.2d 942, 944 

(Tex. 1990). Generally, a party [**11] may recover under quantum meruit only where there is no express contract covering the services or materials furnished. Id. In 

this case, appellant admitted the elements of Gulf Coast's 

quantum meruit claim by default. Further, appellant's 
Page 4 

915 S.W.2d 866, *; 1995 Tex. App. LEXIS 2859, ** 

admission by default of the existence of an express contract renders this issue moot. 

We overrule point of error five. 

Exemplary Damages 

In point of error four, appellant contends that appellee failed to present evidence to support the award of 

exemplary damages. Although a default judgment has 

the effect of admitting all matters properly alleged, if 

damages are unliquidated or not proved by an instrument 

in writing, the prevailing party must present evidence on 

damages. Tex. R. Civ. P. 243; Holt Atherton Indus., Inc. 

v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (court rendering 

default judgment must hear evidence of unliquidated

damages) Unliquidated claims include exemplary damages. First Nat'l Bank of Irving v. Shockley, 663 S.W.2d 

685, 689 (Tex. App.--Corpus Christi 1983, no writ). 

Thus, to sustain an award of additional damages in a 

default judgment, appellees must both plead knowing

conduct and present evidence that [**12] the extent of 

appellant's knowledge warrants additional damages. See 

Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 534

(Tex. App.--San Antonio 1988, writ denied) (punitive 

damages are not regarded as admitted by default in a 

DTPA action). In addition, an exemplary damages award 

must be reasonably proportioned to actual damages. Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 

1981). The trial court must consider several factors to 

determine whether an award of exemplary damages is 

reasonable. See id. 

Although appellant admitted by default that he intentionally or knowingly misapplied trust funds in violation of section 162 of the Texas Property Code, appellee 

did not plead or present any evidence to show that the 

[*873] extent of appellant's knowing conduct was so 

egregious as to warrant exemplary damages. Furthermore, no evidence was presented by appellee to support 

the amount of exemplary damages awarded. 

Because there was no hearing on the issue of exemplary damages, we sustain point of error four, and remand to the trial court for appellee and appellant to present (1) evidence regarding the extent of appellant's intentional conduct; and (2) evidence regarding the [**13] 

reasonableness of the amount of exemplary damages 

requested. 

We reverse the part of the judgment that awards punitive damages and remand the issue of punitive damages only. Tex. R. App. P. 81(b)(1); see Alvarado v. Reif, 

783 S.W.2d 303, 305 (Tex. App--Eastland 1989, no writ)

(in absence of a record on the issue of unliquidated 

damages following a no-answer default judgment, reversal and remand on this issue is required). The remainder 

of the judgment is affirmed. 

/s/Adele Hedges 

Justice 

Justices Hutson-Dunn and Mirabal also sitting. 

Judgment rendered and opinion delivered 
Page 1 

Caution 

As of: Mar 30, 2015 

DOROTHY L. HIGGINBOTHAM AND JOHN G. HIGGINBOTHAM, Petitioners, 

v. GENERAL LIFE AND ACCIDENT INSURANCE COMPANY, ET AL., Respondents 

No. C-7641 

SUPREME COURT OF TEXAS 

796 S.W.2d 695; 1990 Tex. LEXIS 121; 34 Tex. Sup. J. 16

October 10, 1990, Delivered 

PRIOR HISTORY: [**1] From Tarrant County 

Second District. 

JUDGES: C. L. Ray, Justice. Dissent by Chief Justice 

Thomas R. Phillips joined by Justices Cook, Hightower 

and Hecht. 

OPINION BY: RAY 

OPINION 

 [*695] OPINION 

RAY, Justice. The issue in this cause is whether the 

record reflects proper service of citation on General Life 

and Accident Insurance Company and National Benefit

Life Insurance Company, both domestic insurance companies. The return on both defendants' citations stated 

that they were served "on the 18 day of March, 1986 at 

12:01 o'clock p.m." The trial court rendered default 

judgment against both defendants. After hearing the motions for new trial presented by both defendants, the trial 

court expressly concluded that service was proper under 

former article 3.64 of the Insurance Code, allowing service "at the home office of such company during business hours." The court of appeals reversed the trial court 

judgment, concluding that there was no indication in the 

record that 12:01 p.m. was during defendants' business 

hours. 750 S.W.2d 19. We hold that an express finding 

by the trial court necessarily included the finding that 

12:01 p.m. that day was during business hours. We further [**2] hold that the trial court's order was effective 

to amend the officer's return. We reverse the court of 

appeals judgment and remand this cause to it for further 

proceedings. 

Dorothy and John Higginbotham sued General Life 

and National Benefit for the refusal to pay for Dorothy's 

medical expenses alleged to have been covered by insurance policies issued by those companies. When the 

insurers failed to answer, the trial court rendered default 

judgment against them. The return on the citations for 

the two defendants read substantially the same: 

Received this citation the 18 day of March, 1986, at 

8:07 o'clock a.m. Executed [*696] at Fort Worth, 

within the county of Tarrant, state of Texas, on the 18 

day of March, 1986, at 12:01 o'clock p.m., by summoning the within named corporation, Gen. Life & Accident 

Ins. by delivering to Joyce Brown, President-Vice-President-Registered Agent-, in person of the 

said Gen. Life & Accident Ins. at 3900 SFwy a true copy 

of this citation together with the accompanying copy of 

plaintiff's original petition, having first endorsed on same 

the date of delivery. 

On the citation return for General [**3] Life the 

words "registered agent" were circled. The citation return for National Benefit had its name in the appropriate 

blanks but did not have any words circled. 
Page 2 

796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 

34 Tex. Sup. J. 16 

The insurance companies filed motions for new trial

asking that the default judgments be set aside. They 

failed to specifically raise the defect that 12:01 p.m. was 

not expressly recited to have been during business hours, 

but they did complain that Joyce Brown was not an officer or registered agent and that service was improper. 

At the time of service in 1986, article 3.64 of the 

Insurance Code provided the following methods for service of process on domestic insurance companies: 

Process in any civil suit against any "domestic" 

company, may be served only on the president, or any 

active vice president, or secretary, or general counsel 

residing at the city of the home office of the company, or 

by leaving a copy of same at the home office of such 

company during business hours. 

Insurance Code, ch. 491, § 1, art. 3.64, 52d Leg., 

1951 Tex. Gen. Laws 868, 920, repealed by Act of Apr. 

21, 1987, ch. 46, § 12, 70th Leg., 1987 Tex. Gen. Laws 

79, 88. 

The trial court conducted a hearing on the motions 

for new trial. [**4] The affidavits by vice presidents 

of both companies supporting the respective motions for 

new trial stated "someone received citations and rather 

than following the proper procedure, mistakenly placed 

them in the claim file." The motions themselves contained identical allegations that "through someone's error, these petitions were erroneously placed in the claim 

file of Mr. and Mrs. Higginbotham, rather than forwarded to the corporate officers who then forwarded them to 

an attorney for the filing of an answer." The trial court 

could properly take judicial notice that 12:01 p.m. on 

March 18, 1986 was an early afternoon on a Tuesday that 

was not a statutory holiday. Tex. R. Civ. Evid. 

201(b),(c). There was testimony that Joyce Brown was 

an employee of both insurance companies who worked 

in the office during the relevant time. In the order overruling the motion for new trial, the trial court expressly 

found: 

However, the return established that service occurred at the offices of the defendants and the proof at 

the hearing reinforced that fact, and it was also proven 

that Ms. Brown, while not a "registered agent," was an 

employee of these domestice [sic] insurance companies. 

This [**5] meets the requirement of Insurance Code 

Article 3.64 to serve such a company inter alia" . . . by 

leaving a copy of same at the home office of such company during business hours." Service was proper and the 

Court acquired jurisdiction. 

The trial court, finding that service was proper under 

the quoted provision of the statute, necessarily also found 

that service was made "during business hours." The evidence in the record supported this finding. General Life 

and National Benefit each admitted they actually received citation. The officer's return, direct testimony and 

circumstantial evidence indicated that Joyce Brown was 

a clerical employee who took the citations during regular 

business hours. 

The record shows literal compliance with a method 

of service provided by the statute. The only apparent 

defect is that the officer's return did not adequately recite 

such method of service. Neither insurance company 

pointed out nor expressly complained about such defect 

before the trial court. The trial court has express authority to allow amendment of the return to reflect the service 

that was actually had. See Tex. R. Civ. P. 118. Since the 

record affirmatively shows service of citation, and [**6] 

the trial court in a formal order has found [*697] the 

facts that constitute the service that was had, we see no 

point in requiring the trial judge to sign a separate order 

labeled "Order Granting Amendment of Return." The 

order signed by the judge in the record is tantamount to 

an order amending the return. 

Our holding in this case is consistent with the one

opinion in which we have construed rule 118. In London 

v. Chandler, 406 S.W.2d 203 (Tex. 1966), petitioner 

claimed that a default judgment was invalid because the 

citation failed to state the date of issuance, and stating 

the date of issuance was an express requirement under 

the rules of civil procedure. We held that the mere failure 

to note the date of issuance did not make the citation 

invalid or the service of the citation ineffective. We stated this was "made clear by Rule 118 which provides for 

amendment of citations." Id. We then noted that the citation showed the date of sealing and stamping, the date of 

delivery to the sheriff, and date of service. Since the record showed a permissible period when the citation must 

have been issued, we held that the "failure of the clerk to 

note the date of issuance on the [**7] citation did not 

result in any prejudice to petitioner." Id. In London, as in 

the present case, there was no order as such expressly 

amending the citation or citation return. 

The record and express finding of the trial court already establish the amendment of the incorrect or incomplete recitation on the return. If that alleged defect 

had been properly raised before the trial court, it "might 

have been immediately cured by amendment," and the 

appellate court should not have reversed the default 

judgment to require the trial court to expressly correct it. 

See generally Crain v. Griffis, 14 Tex. 358, 363 (1855). 

Because the record affirmatively demonstrated a proper 

form of service and contained an order tantamount to 

formal amendment of the return of citation, the record 

was sufficient to show valid service. 

Our holding in this case should not be mistaken as a 

retreat from our line of cases holding that the record of 
Page 3 

796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 

34 Tex. Sup. J. 16 

service supporting a default judgment must show strict 

compliance with the rules governing service of process. 

See, e.g., McKanna v. Edgar, 388 S.W.2d 927 (Tex. 

1965); Eagle Life Ins. Co. v. George, 473 S.W.2d 311

(Tex.Civ.App. - Beaumont 1971, [**8] writ ref'd). We 

adhere to our rule that "failure to affirmatively show 

strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no 

effect." Uvalde Country Club v. Martin Linen Supply 

Co., 690 S.W.2d 884, 885 (Tex. 1985). 

Most of these opinions addressing the requirement 

that the record show strict compliance are writ of error 

attacks on default judgments. In such cases there is no 

record of service other than the citation return, and its 

recitations, taken as true, must show strict compliance 

with service requirements. We are not to be understood 

as holding that the citation return alone in this case 

would have been sufficient to show valid service. Our 

holding in this case is restricted to situations in which 

there is a record (such as the evidence at the hearing on 

motion for new trial) showing strict compliance with a 

valid method of service and an order expressly amending 

the return or that is tantamount to an order amending the 

return of citation. 

We reverse the judgment of the court of appeals and

remand the cause to that court for it to consider the defendants' other points of error not previously addressed. 

DISSENT BY: [**9] PHILLIPS 

DISSENT 

DISSENTING OPINION 

Thomas R. Phillips, Chief Justice dissenting. 

I dissent. The court's holding in this case is inconsistent with settled Texas authority regarding the sufficiency of service in default judgments. 

When a defendant alleges defective service in an 

appeal from a default judgment, the ordinary presumptions supporting the validity of the judgment do not apply. As we explained in Flynt v. City of Kingsville, 125 

Tex. 510, 82 S.W.2d 934 (1935): 

 

 [*698] On a direct attack . . . the usual presumption of 

service because of the recital in the judgment, "that defendants though duly and legally cited to appear and 

answer, came not but wholly made default," does not

obtain, and the error resulting from the absence in the 

record of the necessary showing necessitates a reversal 

of the judgment. 

 

Thus, it is "the established law of this State that it is imperative and essential that the record affirmatively show 

a strict compliance with the provided mode of service." 

McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). 

This showing must be made from the record that was 

actually before the trial court when the default judgment 

was signed, [**10] unless the record is amended pursuant to Texas Rule of Civil Procedure 118. See, e.g., 

Cox Marketing, Inc. v. Adams, 688 S.W.2d 215, 

217-18(Tex. App. -- El Paso 1985, no writ)(cost and 

supersedeas bonds signed by defendant's president cannot establish validity of service on signer since neither 

bond was on file when default judgment signed). 

The return of service on the two defendants in this

case was as follows: 

PL. 12 

OFFICER'S RETURN FOR CORPORATIONS 

Received this Citation the 18 day of March, 1986, at 

807 o'clock A.M. Executed at Ft. Worth, within the 

County of Tarrant, State of TX, on the 18 day of March, 

1986, at 1201 o'clock P.M., by summoning the within

named corporation, Natl. Benefit Life Ins. Co. by delivering to Joyce Brown at 3900 S. Fwy. President -- 

Vice-President -- Registered Agent --, in person, of the 

said Natl. Benefit Life Ins. Co. a true copy of this citation together with the accompanying copy of plaintiff's 

original petition, having first indorsed on same the date 

of delivery. 

PL. 13 

OFFICER'S RETURN FOR CORPORATIONS 

Received this Citation the 18 day of March, 1986, at 

807 o'clock A.M. Executed at Ft. Worth, within the 

County of Tarrant, State of [**11] TX, on the 18 day of 

March, 1986, at 1201 o'clock P.M., by summoning the

within named corporation, Gen. Life & Accident Ins. by 

delivering to Joyce Brown Registered Agent -, in person, 

of the said Gen. Life & Accident Ins. at 3900 S. Fwy. a 

true copy of this citation together with the accompanying 

copy of plaintiff's original petition, having first indorsed 

on same the date of delivery. 

Both of these returns are defective, as they do not, 

on the record in this case, affirmatively reflect compliance with any applicable service statute. 

These defendants were amenable to service under at 

least two statutes. The first is article 2.11 of the Texas 

Business Corporation Act, which provides that a domestic corporation which maintains a registered agent within 

the state may be served by delivering process to the 

president, any vice president, or the registered agent of 

the corporation. The return of service on National Benefit Life states that delivery of process was made on Joyce 

Brown, but it does not state whether she was the president, a vice president, or the registered agent of that de-
Page 4 

796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 

34 Tex. Sup. J. 16 

fendant. As neither the petition nor the citation supply 

this necessary information, the service [**12] does not 

satisfy article 2.11. 

The return of service on General Life and Accident 

Insurance Company, on the other hand, is regular on its 

face, since it [*699] states that Joyce Brown is the 

registered agent of that defendant. Recitations in the officer's return have been held to be prima facie evidence 

of proper service. See National Med. Enterprises of Texas, Inc. v. Wedman, 676 S.W.2d 712, 715 (Tex. App. 

1984, nor writ); contra NBS Southern, Inc. v. The Mail 

Box, Inc., 772 S.W.2d 470 (Tex. App. -- Dallas 1989, no 

writ). However, in its motion for new trial, General Life 

established by uncontroverted evidence that Ms. Brown 

was not its registered agent, and the trial court so found 

in its findings of fact and conclusions of law. Thus, neither defendant was properly served under article 2.11. 

The second possible statute under which service was

authorized was article 3.64 of the Texas Insurance Code, 

then in effect but now repealed. That statute provided 

that service could be effected on a "domestic" life, health 

and accident insurance company by serving process "only on the president, or any active vice president, or secretary, or general counsel residing at the home [**13] 

office of the company, or by leaving a copy of same at 

the home office of such company during business hours." 

The Higginbothams argue that service was properly effected on both defendants under this statute. If so, such 

proper service was not reflected in the officer's returns. 

Joyce Brown's position was not designated on National 

Benefit's return, and nothing in the petition or citation 

demonstrates that she met one of the applicable categories for accepting service. And although she was designated as registered agent on the return of service on 

General Life, the evidence presented to and accepted by 

the trial court demonstrated that this statement was false. 

Hence, the only remaining avenue of service under the 

statute was by leaving process at the home office. Nothing in the return on either defendant reflects that "3900 

S. Fwy" was the home office of either company, nor is 

such information supplied by the citation. The plaintiffs' 

original petition stated as follows: 

Defendants are domestic insurance companies with 

home offices in Tarrant County, Texas, and registered to 

conduct business as insurance companies in the state of 

Texas. Defendants may be served process at their [**14] 

address, 3900 South Freeway, Fort Worth, Texas 76110. 

Since an "address" is not necessarily a home office, 

the recitals in the petition fall short of supplying the necessary proof that service was effected on defendants at 

their home office, as the statute requires. Although the 

trial court made a finding of fact that this address was the 

home office, apparently based on evidence presented at 

the hearing on motion for new trial, such 

"post-judgment" evidence cannot supply necessary information which was not in the record when the judgment was signed. See Cox, 688 S.W.2d at 218. Because 

the face of the record does not reflect proper service, and 

because the Higginbothams made no attempt to amend 

the record under Rule 118, the companies are entitled to 

a new trial. 

These rules, while complicated, have been developed by our courts to protect the rights of all litigants. As 

we explained in Finlay v. Jones, 435 S.W.2d 136, 138-39 

(Tex. 1968): 

 

The two basic judicial decisions a trial judge must make 

before rendering and entering a default judgment are (1) 

that the court has jurisdiction of the subject matter and 

the parties to the suit, and (2) that, on the record, the case 

[**15] is ripe for judgment. These decisions cannot 

possibly be clerical because the court has no more solemn judicial obligation than that of seeing that no litigant 

is unjustly saddled with a judgment in the absence of 

notice and a hearing. 

Today, the court changes these rules. It deems the 

trial court's explanation of its ruling, based on testimony 

offered at the hearing on defendant's motion for new 

trial, as "tantamount to an order amending the return of 

citation" under Texas Rule of Civil Procedure 118. The 

court's sole authority for this remarkable holding is London v. Chandler, 406 S.W.2d 203 (Tex. 1966). This reliance is misplaced. London cited Rule 118 only to explain 

that the availability of amendment demonstrates that a 

technical defect in a citation does not render service 

thereunder absolutely void. [*700] Id. at 204. Neither 

London nor any other Texas case has ever suggested that 

a citation or return may be amended by implication. By 

its terms, the rule obviously contemplates a physical 

substitution of a corrected instrument into the record. 

See, e.g., Mylonas v. Texas Commerce Bank -- Westwood, 678 S.W.2d 519 (Tex. App. -- Houston [14th Dist.] 

[**16] 1984, no writ). At the most, it might conceivably be expanded to encompass an affidavit from the officer who committed the error. See generally Zaragoza v. 

de la Paz Morales, 616 S.W.2d 295, 296 (Tex. Civ. App. 

-- Eastland 1981, no writ)(on rehearing). If the court desires to change Rule 118, it should do so by amendment, 

not by a tortured reading of a prior opinion. 

I would not so cavalierly alter Texas law. In light of 

the Higginbothams' failure to establish valid service, I 

would affirm the judgment of the court of appeals and 

remand the cause for trial. I therefore find it unnecessary 

to discuss whether the court of appeals erred in its holding that the Higginbothams were required to establish on 

the face of the record that the time of service was in fact 

during business hours, or whether the insurance compa-
Page 5 

796 S.W.2d 695, *; 1990 Tex. LEXIS 121, **; 

34 Tex. Sup. J. 16 

nies established a right to new trial under the Craddock

standards. Craddock v. Sunshine Bus Lines, Inc., 134 

Tex. 388, 133 S.W.2d 124 (1939). 
| | Caution

As of: April 7, 2015 5:46 PM EDT

Holt Atherton Industries, Inc. v. Heine

Supreme Court of Texas

June 17, 1992, DELIVERED

No. D-0562

Reporter

835 S.W.2d 80; 1992 Tex. LEXIS 75; 35 Tex. Sup. J. 881

HOLT ATHERTON INDUSTRIES, INC., PETITIONER

v. ROY HEINE, AND WIFE, KITTY HEINE,

RESPONDENTS

Prior History: [**1] ON APPLICATION FOR WRIT OF

ERROR TO THE COURT OF APPEALS FOR THE

THIRTEENTH DISTRICT OF TEXAS

Core Terms

lost profits, bulldozer, trial court, damages, no evidence,

calculation, ref'd, default judgment, contracts, new trial,

estimated, questions, repairs, no writ, profits, Brick, trial

judge, unliquidated damages, court of appeals, legal

insufficiency, measuring, conscious indifference,

allegations, inferences, warranty

Case Summary

Procedural Posture

Petitioner, a corporation, applied for writ of error to the

Court of Appeals for the 13th District Court (Texas) that

affirmed the order from the trial court denying its motion

to set aside the default judgment in favor of respondents,

owners of a business, and for a new trial, and that

affirmed the award of lost profits to respondents on their

contract and warranty claims arising from a delay in

repairing a bulldozer.

Overview

Petitioner corporation's predecessor delayed in

repairing the bulldozer of respondent owners of a

business because of a dispute about a warranty. After

the bulldozer was repaired, respondents sued petitioner

by serving its agent on contract, warranty, and business

claims. When petitioner failed to answer, the trial court

granted respondents' motion for a default judgment,

awarded them lost profits, and denied petitioner's motion

to set aside the judgment and for a new trial. The

appellate court affirmed the judgment. On writ of error,

the court held that because petitioner did not allege any

facts supporting its conclusory allegations that its failure

to answer was not the result of conscious indifference

on its part or the part of its agent, petitioner was not

entitled to set aside the judgment. The court held that

the evidence was insufficient for the amount of lost

profits awarded to respondents because it was not

based on one complete calculation. Therefore, the court

affirmed the order denying the motion to set aside the

default judgment, reversed the lost profit award, and

remanded the case for a full hearing under Tex. R. Civ.

P. 243 on the amount of lost profits.

Outcome

The court affirmed the order upholding the order denying

petitioner corporation's motion to set aside a default

judgment because petitioner did not allege facts

showing its failure to answer was not due to conscious

indifference on its or its agent's part. The court reversed

the award of lost profits to respondents, business

owners, because the amount was not based on one

complete calculation and remanded the case for a

hearing on the amount.

LexisNexis® Headnotes

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

Civil Procedure > Judgments > Relief From Judgments >

General Overview

Civil Procedure > ... > Relief From Judgments > Excusable

Mistakes & Neglect > Mistake
Civil Procedure > Judgments > Relief From Judgments >

Motions for New Trials

HN1 A default judgment should be set aside and a new

trial ordered in any case in which [1] the failure of the

defendant to answer before judgment was not

intentional, or the result of conscious indifference on his

or her part, but was due to a mistake or an accident;

provided [2] the motion for a new trial sets up a

meritorious defense and [3] is filed at a time when the

granting thereof will occasion no delay or otherwise

work an injury to the plaintiff.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

Civil Procedure > Judgments > Relief From Judgments >

General Overview

Civil Procedure > Judgments > Relief From Judgments >

Motions for New Trials

HN2 When applying the Craddock test, the trial court

looks to the knowledge and acts of the defendant as

contained in the record before the court. Where factual

allegations in a movant's affidavits are uncontroverted,

it is sufficient that the motion for new trial and

accompanying affidavits set forth facts which, if true,

would satisfy the Craddock test. However, conclusory

allegations are insufficient.

Civil Procedure > Pleading & Practice > Pleadings >

Answers

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

HN3 When a defendant relies on his or her agent to file

an answer, he or she must demonstrate that both he or

she and his or her agent were free of conscious

indifference.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

HN4 Once a default judgment is taken on an

unliquidated claim, all allegations of fact set forth in the

petition are deemed admitted, except the amount of

damages. A court rendering a default judgment must

hear evidence of unliquidated damages. Tex. R. Civ. P.

243.

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

Torts > ... > Commercial Interference > Prospective

Advantage > General Overview

Torts > ... > Types of Damages > Compensatory

Damages > General Overview

HN5 The correct measure of damages is lost net profit,

not gross profits.

Civil Procedure > Trials > Bench Trials

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

HN6 In a nonjury trial, where no findings of fact or

conclusions of law are filed or requested, it will be

implied that the trial court made all the necessary

findings to support its judgment. When a statement of

facts is brought forward, these implied findings may be

challenged by factual or legal sufficiency points.

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

HN7 In determining a legal sufficiency question, a court

must consider only the evidence and inferences that

tend to support the finding, and disregard all evidence

and inferences to the contrary. If there is more than a

scintilla of evidence to support the finding, the no

evidence challenge fails.

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

Criminal Law & Procedure > ... > CrimesAgainst Persons >

Assault & Battery > General Overview

Criminal Law & Procedure > ... >Assault & Battery > Simple

Offenses > General Overview

Torts > ... > Commercial Interference > Contracts > General

Overview

Torts > ... > Types of Damages > Compensatory

Damages > General Overview

HN8 Recovery for lost profits does not require that the

loss be susceptible of exact calculation. However, the

injured party must do more than show that they suffered

some lost profits. The amount of the loss must be

shown by competent evidence with reasonable

certainty. What constitutes reasonably certain evidence

of lost profits is a fact intensive determination. As a

minimum, opinions or estimates of lost profits must be

based on objective facts, figures, or data from which the

835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1

Page 2 of 10
amount of lost profits can be ascertained. Although

supporting documentation may affect the weight of the

evidence, it is not necessary to produce in court the

documents supporting the opinions or estimates.

Contracts Law > Breach > General Overview

HN9 The bare assertion that contracts are lost does not

demonstrate a reasonably certain objective

determination of lost profits.

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

Torts > ... > Commercial Interference > Prospective

Advantage > General Overview

Torts > Remedies > Damages > General Overview

HN10 Recovery of lost profits must be predicated on

one complete calculation.

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

Torts > ... > Commercial Interference > Prospective

Advantage > General Overview

Torts > Remedies > Damages > General Overview

HN11 The court does not sanction any one method for

determining lost profits. However, once a party has

chosen a particular method for measuring their lost

profits, they must provide a complete calculation.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Judgments > Relief From Judgments >

General Overview

Civil Procedure > Judgments > Relief From Judgments >

Motions for New Trials

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

HN12 As a general matter, when the court sustains a no

evidence point of error after a trial on the merits, the

court renders judgment on that point. Tex. R. App. P.

81(c). Texas courts view an appeal from a default

judgment somewhat differently than an appeal from a

trial on the merits. In part, this is because an adjudication

on the merits is preferred in Texas.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Trials > Judgment as Matter of Law >

General Overview

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

HN13 After a default judgment is granted, the trial court

must hear evidence of unliquidated damages. Tex. R.

Civ. P. 243. However, as a practical matter, in an

uncontested hearing, evidence of unliquidated damages

is often not fully developed. This is particularly true

when the trial judge expresses a willingness to enter

judgment on the evidence that has been presented.

Therefore, when an appellate court sustains a no

evidence point after an uncontested hearing on

unliquidated damages following a no-answer default

judgment, the appropriate disposition is a remand for a

new trial on the issue of unliquidated damages.

Counsel: FOR PETITIONER: Caldwell, Mr. G. Wade,

ATT 003621020, 512/227-7591, Martin, Drought &

Torres, Inc., 2500 NationsBank Plaza, 300 Convent

Street, San Antonio, TX 78205-3789. Golightly, Mr.

Michael, ATT 008109500, 512/349-4900, Klein & Klein,

70 N.E. Loop 410, Suite 800, San Antonio, TX 78216.

Simmons, Ms. Rebecca, ATT 018370890,

512/554-5500, Cox & Smith Incorporated, 2000 NBC

Bank Plaza, 112 East Pecan Street, San Antonio, TX

78205.

FOR RESPONDENTS: Griffin, Mr. David C., ATT

008456950, 512/573-5500, Houston, Marek & Griffin,

120 Main Place, Suite 600, P.O. Box 2329, Victoria, TX

77902-2329. Sheppard, Ms. Cynthia T., ATT

020245500, 512/573-5500, Houston, Marek & Griffin,

120 Main Place, Suite 600, Post Office Box 2329,

Victoria, TX 77902-2329. Griffin, Jr., Mr. John, ATT

008460300, 512/573-5500, Houston, Marek & Griffin,

120 Main Place, Suite 600, Post Office Box 2329,

Victoria, TX 77902.

Judges: Cook, Doggett

Opinion by: Eugene A. Cook

835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1

Page 3 of 10
Opinion

[*82] OPINION

This case presents two questions: 1) whether the trial

court abused its discretion in denying the motion of

defendant [**2] Holt Atherton Industries, Inc. to set

aside default judgment and for new trial; and 2) whether

there is any evidence to support recovery of lost profits.

We hold that the trial court did not abuse its discretion in

denying the motion for new trial and that the evidence is

legally insufficient to support recovery of lost profits.

Therefore, we affirm in part and reverse in part the

judgment of the court of appeals. 797 S.W.2d 250.

In January 1987, Roy and Kitty Heine took their

bulldozer to Holt Machinery Company for repairs under

an alleged oral warranty. Holt Machinery did not

recognize the oral warranty. The bulldozer remained in

the possession of Holt Machinery but it was not being

repaired because Holt Machinery did not recognize the

warranty and the Heines did not agree to pay for repairs.

In August of 1987, Holt Machinery merged into Holt

Atherton Industries, Inc. Holt Atherton then merged into

B.D. Holt Company. In September of 1987, the Heines

agreed to pay for the repairs to their bulldozer. In March

1988, the Heines brought this action against B.D. Holt,

B.D. Holt Co., and Holt Co. of Texas alleging violations

of the Deceptive Trade Practices Act (Tex. Bus. & Com.

Code [**3] §§ 17.41-17.63), breach of express and

implied warranties, breach of contract, negligence, and

tortious interference with business relations. In July

1988, the Heines' Second Amended Original Petition

added Holt Atherton as a defendant and was properly

served on Holt Atherton's registered agent, Stevenson

Atherton. InAugust 1988, the trial court rendered default

judgment against Holt Atherton due to its failure to

appear and answer. The Heines severed their cause of

action against Holt Atherton to obtain a final judgment.

Subsequently, the trial court stayed the actions against

the other defendants pending the outcome of this

appeal. Holt Atherton moved to set aside the default

judgment and for new trial. The trial court denied Holt

Atherton's motion, and the court of appeals affirmed.

797 S.W.2d 250.

I.

A trial court's discretion in determining whether to grant

a new trial after the court renders a default judgment

must be referenced to the guiding rule set out in

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133

S.W.2d 124 (1939). The rule is:

HN1 A default judgment should be set aside and a new

trial ordered in any case in which [1] the failure of the

defendant to [**4] answer before judgment was not

intentional, or the result of conscious indifference on his

part, but was due to a mistake or an accident; provided

[2] the motion for a new trial sets up a meritorious

defense and [3] is filed at a time when the granting

thereof will occasion no delay or otherwise work an

injury to the plaintiff.

Craddock, 133 S.W.2d at 126; Bank One, Texas, N.A. v.

Moody, S.W.2d (Tex. 1992).

HN2 When applying the Craddock test, the trial court

looks to the knowledge and acts of the defendant as

contained in the record before the court. Strackbein v.

Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984). Where

factual allegations in a movant's affidavits are

uncontroverted, it is sufficient that the motion for new

trial and accompanying affidavits set forth facts which, if

true, would satisfy the Craddock test. Cliff v. Huggins,

724 S.W.2d 778, 779 (Tex. 1987); Strackbein, 671

S.W.2d at 38-39. However, conclusory allegations are

insufficient. Folsom Investments, Inc. v. Troutz, 632

S.W.2d 872, 875 (Tex. App.--Fort Worth 1982, writ ref'd

n.r.e.).HN3

[*83] When a defendant relies on his agent to file an

answer, he [**5] must demonstrate that both he and his

agent were free of conscious indifference. Harris v.

Lebow, 363 S.W.2d 184, 186 (Tex. Civ. App.--Dallas

1962, writ ref'd n.r.e.). Because Stevenson Atherton

was Holt Atherton's registered agent, Holt Atherton

must show that Stevenson Atherton's failure to answer

was due to a mistake or accident rather than intentional

or due to conscious indifference.

The evidence introduced by Holt Atherton in support of

its motion for new trial was uncontroverted by the

Heines. Therefore, the trial court could accept this

evidence as true and apply the Craddock requirements.

The only evidence Holt Atherton presented to the trial

court to negate intentional disregard or conscious

indifference was the affidavit of Stevenson Atherton,

which states:

The failure of the corporation to file an answer herein

was due to accident and mistake due to the complete

lack of any knowledge as to the facts or circumstances

835 S.W.2d 80, *80; 1992 Tex. LEXIS 75, **1

Page 4 of 10
involved in this cause. Holt Atherton Industries, Inc. has

never done any business with Roy or Kitte [sic] Heine,

nor repaired any type of equipment nor provided any

type of service of any kind to either Roy or Kitte [sic]

Heine. The corporation [**6] known as Holt Atherton

Industries, Inc. has not been actively involved in the

operation of a business that repairs heavy equipment of

any type during the time period set forth in the Heine's

[sic] lawsuit.

Holt Atherton argues that its motion and affidavit

established that it failed to answer due to an accident or

mistake. Atherton's statement that no answer was filed

"due to accident and mistake" is merely a conclusory

allegation. There is no explanation of the nature of the

mistake. The factual allegations only serve to set up a

meritorious defense. There are no factual allegations

supporting the first part of the Craddock test. The

essence of Holt Atherton's evidence is that it did not file

an answer because Stevenson Atherton did not think

Holt Atherton could possibly be held liable.

The trial court did not abuse its discretion in denying the

motion because it could have concluded, based on the

evidence before it, that Holt Atherton's failure to answer

was intentional or due to conscious indifference. There

was no support given to the allegation of mistake or

accident. Because we hold that the first element of the

Craddock test was not satisfied, we do not reach [**7]

the other two elements.

II.

HN4 Once a default judgment is taken on an

unliquidated claim, all allegations of fact set forth in the

petition are deemed admitted, except the amount of

damages. Morgan v. Compugraphic Corp., 675 S.W.2d

729, 731 (Tex. 1984). A court rendering a default

judgment must hear evidence of unliquidated damages.

TEX. R. CIV. P. 243; see Morgan, 675 S.W.2d at 731.

The trial court, in this case, held a hearing and

determined that the Heines suffered damages in the

amount of $ 159,665 including $ 120,000 for lost profits.

1

[**8] Holt Atherton argues that there is no evidence

supporting the trial court's award of damages for lost

profits. "HN6 In a nonjury trial, where no findings of fact

or conclusions of law are filed or requested, it will be

implied that the trial court made all the necessary

findings to support its judgment." Burnett v. Motyka, 610

S.W.2d 735, 736 (Tex. 1980) (citing Goodyear Tire and

Rubber Co. v. Jefferson Construction [*84] Co., 565

S.W.2d 916 (Tex. 1978); Lassiter v. Bliss, 559 S.W.2d

353 (Tex. 1978)). When, as in this case, a statement of

facts is brought forward, these implied findings may be

challenged by factual or legal sufficiency points.

Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.

1989); Burnett, 610 S.W.2d at 736. HN7 In determining

a legal sufficiency question, a court must consider only

the evidence and inferences that tend to support the

finding, and disregard all evidence and inferences to

the contrary. Best v. Ryan Auto Group, Inc., 786 S.W.2d

670, 671 (Tex. 1990); King v. Bauer, 688 S.W.2d 845,

846 (Tex. 1985). If there is more than a scintilla of

evidence to support the finding, the no evidence

challenge fails. Stafford v. [**9] Stafford, 726 S.W.2d

14, 16 (Tex. 1987); Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983).

HN8 Recovery for lost profits does not require that the

loss be susceptible of exact calculation. White v.

Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.

1983); Southwest Battery Corp. v. Owen, 131 Tex. 423,

115 S.W.2d 1097, 1098 (1938). However, the injured

party must do more than show that they suffered some

lost profits. The amount of the loss must be shown by

competent evidence with reasonable certainty. White,

651 S.W.2d at 262; Southwest Battery, 115 S.W.2d at

1098. What constitutes reasonably certain evidence of

lost profits is a fact intensive determination. As a

minimum, opinions or estimates of lost profits must be

based on objective facts, figures, or data from which the

amount of lost profits can be ascertained. See, e.g.,

Pena v. Ludwig, 766 S.W.2d 298, 304 (Tex. App.--Waco

1989, no writ); Frank B. Hall & Co. v. Beach, Inc., 733

S.W.2d 251, 258 (Tex. App.--Corpus Christi 1987, writ

ref'd n.r.e.); Keller v. Davis, 694 S.W.2d 355, 357 (Tex.

App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.);

1

The trial court's judgment includes the $ 120,000 as "Loss of Income Due to Absence of Dozer." Holt Atherton notes that

HN5 the correct measure of damages is lost net profit, not gross profits. See Turner v. PV Int'l Corp., 765 S.W.2d 455, 465 (Tex.

App.--Dallas 1988, writ denied per curiam, 778 S.W.2d 865 (Tex. 1989)); Copenhaver v. Berryman, 602 S.W.2d 540, 544 (Tex.

Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). However, read most favorably to the Heines, the record indicates that the trial

court's judgment is based on an amount the court determined remained after the Heines had paid out expenses. Therefore, the

court applied the correct measure of damages. To avoid confusion in this opinion, we refer to the $ 120,000 award as "lost

profits."

835 S.W.2d 80, *83; 1992 Tex. LEXIS 75, **8

Page 5 of 10
Automark of Texas v. Discount [**10] Trophies, 681

S.W.2d 828, 830 (Tex. App.--Dallas 1984, no writ).

Although supporting documentation may affect the

weight of the evidence, it is not necessary to produce in

court the documents supporting the opinions or

estimates. See, e.g., Pena, 766 S.W.2d at 304; Keller,

694 S.W.2d at 357.

2

The Heines' testimony was the only evidence presented

concerning their lost profits and can be divided into two

segments. First, Mr. Heine was examined by his

counsel. Then, the trial judge questioned both Heines.

When Mr. Heine was examined by his counsel, only one

question was asked which touched on lost profits. The

relevant question and answer are:

Q. Now as a result of the defendant keeping the dozer

for eight months, did you lose out on $ 200,200 in lost

income during that time period?

A. Yes, sir, I did.

Even if this testimony were otherwise sufficient, [**11]

lost income is not the correct measure of damages. See

supra note 1. Further, this testimony is legally insufficient

because it does not provide any indication of how the

Heines determined what their lost profits were. See,

e.g., Village Square, Ltd. v. Barton, 660 S.W.2d 556,

559-60 (Tex. App.--San Antonio 1983, writ ref'd

n.r.e.)(testimony stating only total amount of lost profits

held legally insufficient); Frank B. Hall & Co., 733 S.W.2d

at 259 (same). The court does not have any basis for

determining whether the damages were established

with reasonable certainty or were based on pure

speculation. This question and answer are legally

insufficient to prove lost profits.

After the Heines' counsel completed his questions, the

trial judge asked additional questions to determine what

the Heines' lost profits were and how the Heines

concluded that their lost income was $ 200,200. The

judge started out by questioning Mr. Heine. Mr. Heine

could not provide answers to the judge's questions but

suggested that Mrs. Heine could be more helpful

because she kept the books for the Heines. Mrs. Heine

testified that she could not say what their lost profits

were without looking [**12] [*85] at their books. When

the judge asked what the Heines showed as profits on

their income tax returns for 1985 or 1986, the years

preceding the year that Holt Atherton kept their

bulldozer, Mrs. Heine did not know. However, Mr. Heine

responded that their income tax return showed profits of

about $ 120,000. 3 Both Heines testified that in 1985,

they had two bulldozers that operated about half of the

time because business was slow. Apparently the trial

judge determined that one bulldozer working full-time

would earn as much in thirteen months as two bulldozers

working half-time would earn in twelve months.

There are two problems with this analysis. First, the

Heines never offered any evidence showing that there

was enough work to keep two bulldozers working

full-time over the relevant thirteen month period. This is

particularly significant here [**13] because the Heines

testified that there had not been enough work in the

preceding years to keep both bulldozers working

full-time. 4 Second, the Heines never showed that they

were entitled to recover lost profits for the entire thirteen

month period. See Morgan, 675 S.W.2d at 731 (must

show damages were caused by event sued on). The

total down time may have been thirteen months.

However, according to Mr. Heine's testimony, Holt

Atherton only kept the bulldozer for eight months before

starting repairs.

In response to further questions by the trial judge, Mr.

Heine testified that the Heines lost several contracts

because they did not have their bulldozer available. Mr.

Heine was not able to specify which contracts they lost,

how many they lost, how much profit they would have

had from the contracts, or who would have awarded

them contracts. The Heines could have supported their

lost profits with testimony that they had lost out on

specific [**14] contracts because they did not have their

bulldozer available. See Pace Corp. v. Jackson, 155

Tex. 179, 284 S.W.2d 340, 349 (Tex. 1955). However,

HN9 the bare assertion that contracts were lost does

2

We disapprove Automark of Texas, 681 S.W.2d at 830, to the extent that it holds the supporting records must he produced in

court.

3 Although Mr. Heine was not on the witness stand when he made this statement, it was transcribed by the court reporter and

appears in the statement of facts.

4 Mr. Heine testified "'85 was light; '86 was disastrous."

835 S.W.2d 80, *84; 1992 Tex. LEXIS 75, **9

Page 6 of 10
not demonstrate a reasonably certain objective

determination of lost profits. See Pace, 284 S.W.2d at

348-49; Pena v. Ludwig, 766 S.W.2d 298, 301-02 (Tex.

App.--Waco 1989, no writ).

The testimony elicited by the trial judge provides pieces

of several different methods of calculating lost profits.

However, the Heines were not able to provide evidence

supporting one complete calculation. HN10 Recovery

of lost profits must be predicated on one complete

calculation. See, e.g., Fleming Mfg. Co. v. Capitol Brick,

Inc., 722 S.W.2d 399, 402 (Tex. 1986)(evidence legally

sufficient to support lost profits; did not discuss

evidence), on remand, 734 S.W.2d 405 (Tex.

App.--Austin 1987, writ ref'd n.r.e.)(evidence held

factually insufficient to support lost profits; detailed

evidence shows what was in the record for the Supreme

Court to consider as part of no evidence review;

demonstrates a complete calculation of lost profits);

Chemical Express Carriers, Inc. v. French, 759 S.W.2d

[**15] 683, 687-88 (Tex. App.--Corpus Christi 1988,

writ denied)(demonstrating a complete calculation of

lost profits); Keller, 694 S.W.2d at 357 (same); Reliance

Universal Inc. v. Sparks Indus. Serv., Inc., 688 S.W.2d

890, 893-96 (Tex. App.--Beaumont 1985, writ ref'd

n.r.e.)(same); Village Square, Ltd., 660 S.W.2d at

559-60 (statement of total lost profits without supporting

analysis held legally insufficient); Frank B. Hall & Co.,

733 S.W.2d at 259 (same); Barbier v. Barry, 345 S.W.2d

557, 563 (Tex. Civ. App.--Dallas 1961, no writ)(held no

evidence of lost profits because no evidence of

supporting calculations). HN11 We do not sanction any

one method for determining lost profits. Southwest

Battery Corp., 115 S.W.2d at 1099. However, once a

party has chosen a particular method for measuring

their lost profits, they must provide a complete

calculation. The Heines have not done that. Therefore,

the evidence is legally insufficient to provide a [*86]

reasonable basis for determining the Heines' lost profits.

III.

We affirm the court of appeals' holding that the trial

court did not abuse its discretion in denying Holt

Atherton's motion for new trial and reverse [**16] the

court of appeals' holding that the evidence supporting

an award of lost profits was legally sufficient. HN12 As a

general matter, when we sustain a no evidence point of

error after a trial on the merits, we render judgment on

that point. TEX. R. APP. P. 81(c); Mobil Oil Corp. v.

Frederick, 621 S.W.2d 595, 596 (Tex. 1981); National

Life and Accident Ins. Co. v. Blagg, 438 S.W.2d 905,

909 (Tex. 1969); Garza v. Alviar, 395 S.W.2d 821, 823

(Tex. 1965). Texas courts view an appeal from a default

judgment somewhat differently than an appeal from a

trial on the merits. In part, this is because an adjudication

on the merits is preferred in Texas. See, e.g., In re

T.B.S., 601 S.W.2d 539 (Tex. Civ. App.--Tyler 1980, no

writ).

HN13 After a default judgment is granted, the trial court

must hear evidence of unliquidated damages. TEX. R.

Civ. P. 243. However, as a practical matter, in an

uncontested hearing, evidence of unliquidated damages

is often not fully developed. This is particularly true

when the trial judge expresses a willingness to enter

judgment on the evidence that has been presented.

Therefore, when an appellate court sustains a no

evidence point after an uncontested [**17] hearing on

unliquidated damages following a no-answer default

judgment, the appropriate disposition is a remand for a

new trial on the issue of unliquidated damages.

We remand the cause to the trial court for a new trial on

the issue of lost profits.

Eugene A. Cook,

Justice

Concurring and Dissenting Opinion by Justice Doggett

joined by Justice Mauzy.

OPINION DELIVERED: June 17,1992.

Concur by: LLOYD DOGGETT (In part)

Dissent by: LLOYD DOGGETT (In part)

Dissent

CONCURRING AND DISSENTING OPINION

In overturning a judgment for this family business, the

majority imposes new obstacles to any commercial

enterprise that has wrongfully suffered a loss of profits.

1 Today's opinion abandons our well established rules

governing review of legal sufficiency of the evidence

1

In burdening small businesses like the one involved here, the majority continues an unfortunate trend of insensitivity to the

realities of independent business. See Caller-Times Publishing Co. v. Trim Communications, Inc., 826 S.W.2d 576, n.4 (Tex.

835 S.W.2d 80, *85; 1992 Tex. LEXIS 75, **14

Page 7 of 10
and disavows this particular businessperson's sworn

testimony as totally worthless. Although I concur in that

part of the judgment affirming liability, I dissent from the

court's decision to ensure that lost profits stay lost.

[**18] While covered by a Holt Atherton repair warranty,

a part broke on one of the two D-8 Caterpillar bulldozers

owned and operated by Roy and Kitty Heine. Instead of

providing prompt repairs, Holt Atherton allegedly left

them without the use of the bulldozer for about a year.

Before granting the Heines a default judgment, the trial

court appropriately heard evidence on their unliquidated

damages including lost profits. See Morgan v.

Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).

Roy calculated lost income to be $ 200,200, based on

the days the machine was incapacitated and also on

"several" lost land clearing contracts, one of which, the

O'Connor contract, was open-ended as to the amount

of work. He further testified that by charging $ 80 per

hour for bulldozer work, he realized an "immediate

profit" of about $ 30 to $ 40 per hour. Additionally, he

described a job for other of his equipment, which was

lost due to customer impatience with the extended

delays resulting from breakdown of the bulldozer. His

total figure included an adjustment "for the time that

there might not have been anything." Referencing the

probable familiarity of experienced business people

with approximate [**19] costs and profit margins, the

trial court inquired as to profits shown on their recent

income tax returns. The Heines [*87] responded that in

the year before the breakdown, they reported a profit of

about $ 120,000 by working both dozers full time for six

months.As the trier of fact, the trial judge found damages

for lost profits in this lesser amount, rather than the

larger initial estimate.

On appeal, Holt Atherton urges that this testimony was

"too speculative" and constituted no evidence to support

a finding of damages for lost profits. In reviewing a no

evidence point, we have recently written that

consideration must be limited to:

only the evidence and inferences tending to support the

jury's finding, viewed most favorably in support of the

finding, and disregarding all contrary evidence and

inferences.

Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458

(Tex. 1992). Only when reasonable minds cannot differ

in concluding that the evidence offered lacks probative

force will it be held to constitute the legal equivalent of

no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d

61, 63 (Tex. 1983). Recognizing that where "more than

a scintilla of evidence [**20] [supports] the trial court's

finding, the no evidence challenge fails," at S.W.2D

at, the majority misapplies the standard and implicitly

creates new requirements for what constitutes a

"scintilla" in the context of lost profits.

To support a default judgment in Capitol Brick, Inc. v.

Fleming Mfg. Co., 722 S.W.2d 399 (Tex. 1986), a small

business gave evidence of its lost profits arising from

loss of use of an inadequately repaired brick-making

machine. The court of appeals reversed on other

nonevidentiary grounds. In reversing the judgment of

the court of appeals, we addressed a previously

unconsidered no evidence challenge, finding that "the

record reflects more than a scintilla of competent

evidence to support the . . . lost profits." Id. at 402. The

record there was strikingly similar to that here, as

indicated by the writing of the court of appeals on

remand, addressing the remaining factual insufficiency

challenge:

Sprott [its president] testified that . . . Capitol Brick's

mold press which would have produced this particular

ten inch brick was idle for 11 1/2 weeks; that during

normal conditions the press would have produced some

l,750,000 [**21] bricks; and that these bricks would

have sold for $ 120 per thousand, or some $ 207,000.

Sprott also indicated a 25% net profit figure which

translates into lost profits of $ 51,750. This was the only

evidence concerning Capitol Brick's unliquidated

damage claim.

Fleming Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405,

406 (Tex.App.--Austin 1987, writ ref'd n.r.e.). 2[**22] Yet

today's opinion burdens businesses by disregarding

1992)(Doggett J., dissenting)(small business made easy prey for anticompetitive, monopolistic practices); Crim Truck & Tractor

Co. v. Navistar Int'l Trans. Corp., 823 S.W.2d 591, 597 (Tex. 1992)(Mauzy, J., dissenting)(local dealer denied remedy for abuse

by a frachisor).

2

Similarly, in Texas Gas Explor. v. Broughton Offshore, 790 S.W.2d 781, 789 (Tex. App.--Houston [14th Dist.] 1990, no writ), a

party's uncontroverted testimony, based on his industry experience, regarding estimated profits from disabled equipment was

held to constitute legally sufficient evidence.

835 S.W.2d 80, *86; 1992 Tex. LEXIS 75, **17

Page 8 of 10
our prior writing, creating a higher evidentiary standard

for small service-oriented companies, and presuming to

conduct a factual sufficiency review on a no evidence

point of error. The majority considers essentially the

same factual questions previously deemed the function

of the court of appeals: 3 whether the market demand

would have supplied as much work as the Heines

estimated, the certainty of specific contract prices, and

whether the second bulldozer could have handled the

total market demand. S.W.2d at.

To negate the award of lost profits, the majority must

take something and call it nothing -- it must treat the

Heines' sworn testimony, given in response to a series

of questions from the trial judge, as devoid of any legal

value. This contrived disposition results from the

impossibility of a remand to the court of appeals for a

factual insufficiency review that Holt Atherton has falled

to request.

Denial of relief in this case has ramifications that extend

to all commercial litigation [*88] in which profits are an

issue. The majority begins by eroding the distinction we

have long recognized between uncertainty as to the

occurrence of lost profits and uncertainty merely as

[**23] to their exact amount. The former, but not the

latter, is fatal to recovery. See, e.g., Southwest Battery

Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099

(Tex. 1938).

It then announces new requirements that a party must

chose a particular method for measuring lost profits,

S.W.2d at and that "recovery of lost profits must be

predicated on one complete calculation." Id. at . We

have previously declined to construct such inflexible

rules that could unfairly bar recovery:

It is impossible to announce with exact certainty any

rule measuring the profits the loss for which recovery

may be had. . . . A party who breaks his contract cannot

escape liability because it is impossible to state or prove

a perfect measure of damages.

Southwest Battery Corp. 115 S.W.2d at 1099; accord

White v. Southwestern Bell Tel. Co., 651 S.W.2d 260,

263 (Tex. 1983); Davis v. Small Business Inv. Co. of

Houston, 535 S.W.2d 740 743 (Tex. Civ.

App.--Texarkana 1976, writ ref'd n.r.e.) (victim must

present evidence from which factfinder can reasonably

infer that some profit would have been made and

reasonably estimate the amount of loss). Similarly,

[**24] in Pace Corp. v. Jackson, 155 Tex. 179, 284

S.W.2d 340, 348 (Tex. 1958), this court concluded that

measuring lost profits is an inherently imperfect

undertaking. See also Pena v. Ludwig, 766 S.W.2d 298,

301 (Tex. App.--Waco 1989, no writ). Small service

businesses offering skillful operation of their equipment

are entitled to some latitude in measuring inexact lost

profits sustained from loss of use. Chemical Exp.

Carriers, Inc. v. French, 759 S.W.2d 683, 687-88 (Tex.

App.--Corpus Christi 1988, writ denied)(owner's

estimated lost profits for charter company's disabled

airplane legally sufficient). See also Texas Tool Traders,

Inc. v. Mosley Machinery Co., 422 S.W.2d 229(Tex. Civ.

App.--Waco 1967, no writ).

The majority's professed lack of "any basis for

determining whether the damages were established

with reasonable certainty or were based on pure

speculation," S.W.2d at, discounts the Heines'

response to the trial court's inquiry about how they

"calculated" their damages. They referenced hourly

charges, lost contracts, cost factors, and down-time

adjustments. Estimations, when "given in terms of

calculations, [constitute] more than [**25] conjecture,

speculation or guesswork" and must be evaluated by

the finder of fact. Reliance Universal Inc. v. Sparks

Industrial Services, 688 S.W.2d 890, 895-96 (Tex.

App.--Beaumont 1985, writ ref'd n.r.e.).

Though criticized by the majority for failing to explain

"that they had lost out on specific contracts," S.W.2d

at, the Heines were not necessarily required to identify

specific, measurable, lost contracts because they were

an existing business with a history of profitability. 4 Such

an operation ordinarily encounters lesser evidentiary

hurdles to show lost profits already sustained than

would a business with little record of past earnings that

seeks to show future lost profits. See Barbier v. Barry,

3

Compare Capitol Brick, 734 S.W.2d at 407, in which the court of appeals on remand examined the factual questions of whether

the market demand existed for the estimated production it would have produced if the machine had been working, the certainty

of the estimated price, and whether the demand could have been met from existing inventory in determining that evidence

presented was factually insufficient.

4

835 S.W.2d 80, *87; 1992 Tex. LEXIS 75, **22

Page 9 of 10
345 S.W.2d 557, 563 (Tex. Civ. App.--Dallas 1961, no

writ). Among the methods a party may use to calculate

its lost profits is either a history of profitability or the

actual existence of lost contracts. Allied Bank West

Loop v. C.B.D. Assoc., 728 S.W.2d 49, 54-55 (Tex.

App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.).

[**26] There is undoubtedly some legal evidence to

support the Heines' lost profits damages. Since there is

no factual insufficiency point of error requiring further

review by the court of appeals, its judgment should be

affirmed.

Lloyd Doggett

Justice

Justice Mauzy joins in this concurring and dissenting

opinion.

Opinion delivered: June 17, 1992.

Nor were they required to prove their previous profits "remained stable or [grew] to support award for lost profits in subsequent

years." Martin v. Lou Poliquin Enterprises , Inc., 696 S.W.2d 180, 187 (Tex. App.-- Houston [14th Dist.] 1985, writ ref'd n.r.e.).

835 S.W.2d 80, *88; 1992 Tex. LEXIS 75, **25

Page 10 of 10
Page 1 

Caution 

As of: Mar 30, 2015 

HUNT OIL COMPANY, et al., Petitioners, v. WILLIS MOORE, TRUSTEE, Respondent 

No. C-1219 

SUPREME COURT OF TEXAS 

639 S.W.2d 459; 1982 Tex. LEXIS 324; 25 Tex. Sup. J. 476

July 21, 1982 

PRIOR HISTORY: [**1] From Henderson 

County Twelfth District. 

COUNSEL: Ralph B. Shank, Dallas, Texas, for Petitioners. 

 Edward Kliewer, Jr., Dallas, Texas, for Respondent. 

OPINION BY: PER CURIAM 

OPINION 

 [*459] Willis Moore, Trustee, brought suit against 

Hunt Oil Company and others (Hunt Oil) seeking to have 

a lease declared terminated, to have cloud on title removed, and to have title quieted in himself. Additionally, Moore sought to recover damages and prejudgment 

interest. Both parties filed Motions for Summary Judgment. The trial court entered a "Partial Summary Judgment" granting Moore's motion. This judgment declared the lease terminated, quieted title in Moore and 

ordered the cloud be removed. The Partial Summary 

Judgment further ordered that Hunt Oil "render an accounting to [Moore] for all oil, gas and other minerals 

produced . . . which is attributable to [Moore's interest]." 

Moore was awarded costs of the suit, but the judgment 

did not mention Moore's claim for prejudgment interest. 

After the accounting was completed by Hunt Oil, 

Moore filed a Motion for Final Judgment. The court entered a Final Judgment on May 16, 1980. The final 

judgment tracked the Partial Summary Judgment [**2] 

and then ordered that Hunt Oil pay Moore the sum of

$377,058.52 together with 9% interest. The judgment 

denied all other relief not expressly granted. 

Moore and Hunt Oil filed separate appeals. Hunt 

Oil appealed from the trial court's order terminating the 

lease, vesting title in Moore and awarding damages 

based on the accounting. Moore filed a motion to dismiss 

Hunt Oil's appeal. Moore alleged that the Partial Summary Judgment was in fact a final appealable judgment 

from which Hunt Oil should have perfected its appeal. 

Thus, Moore alleged, Hunt Oil did not timely perfect its 

appeal. The court of appeals granted Moore's motion 

and dismissed [*460] Hunt's appeal for want of jurisdiction. 629 S.W.2d 260. 

The court of appeals relied on Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945 (1960), in dismissing 

Hunt Oil's appeal. In Ferguson, the court ordered an 

accounting be made and further ordered that one-half of 

the profits be paid to the plaintiff. This judgment was 

considered final and appealable because "there remains 

only the rendering of one-half of the profits over a definite period of time. . . ." Id. at 338 S.W.2d at 947. 

As this Court held in Pan [**3] American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 

550, 324 S.W.2d 200 (1959), however, "a summary 

judgment which does not dispose of all parties and issues 

in the pending suit is interlocutory and not appealable . . . 

." The "Partial Summary Judgment" entered in this case 
Page 2 

639 S.W.2d 459, *; 1982 Tex. LEXIS 324, **; 

25 Tex. Sup. J. 476 

only established ownership in the leasehold estate and 

ordered an accounting to be filed in the future. Any 

award of damages based on the accounting necessarily 

had to occur at a subsequent time. See Perkins v. 

Springstun, 557 S.W.2d 343 (Tex. Civ. App. -- Austin 

1977, writ ref'd n.r.e.). Further, the judgment did not 

address Moore's claim for prejudgment interest. 

The Partial Summary Judgment did not dispose of 

all issues, therefore, it was interlocutory and unappealable. Hunt Oil timely perfected its appeal from the Final 

Judgment and the court of appeals erred in dismissing the 

appeal for want of jurisdiction. 

Pursuant to Rule 438 of the Texas Rules of Civil 

Procedure, we grant the writ of error and, without hearing oral argument, reverse the judgment of the [**4] 

court of appeals and remand the cause to the court of 

appeals for consideration of the merits of the appeal. 
Page 1 

Caution 

As of: Mar 30, 2015 

IN RE FRANK BOKELOH, GABRIELE BOKELOH AND JOHN DAUGHERTY 

REALTORS, INC., Relators 

NO. 14-00-00366-CV 

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON 

21 S.W.3d 784; 2000 Tex. App. LEXIS 4326

June 7, 2000, Opinion Filed 

PRIOR HISTORY: [**1] Appeal from 80TH 

DISTRICT COURT, Harris County; Scott Link, Judge. 

DISPOSITION: Petition for Writ of Mandamus 

conditionally Granted. 

COUNSEL: David A. Carp, James A. Dunn, J. Richard 

Hargis of Houston, TX, for Relators. 

Thomas G. Bousquet of Houston, TX, for Respondent. 

JUDGES: Kem Thompson Frost, Justice. Panel consists 

of Justices Amidei, Anderson and Frost. 

OPINION BY: Kem Thompson Frost 

OPINION 

 [*786] ORIGINAL PROCEEDING 

WRIT OF MANDAMUS 

In this original proceeding, relators seek a writ of 

mandamus directing the trial court to vacate its May 4, 

1999, order of reinstatement entered in the trial court 

cause number 98- 37222, styled Thomas Bousquet Jr., et 

ux. v. Frank Bokeloh, et ux. Relators contend the order of 

reinstatement is void because the trial court's plenary 

power expired before the entry of the order. We agree 

and conditionally grant the writ of mandamus. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

In August 1998, the real parties in interest, Thomas 

and Denise Bousquet (the "Bosquets"), filed suit in the 

80th Judicial District Court of Harris County against 

relators, Frank Bokeloh, Gabriele Bokeloh, John Daugherty Realtors, Inc. and Maureen Boyd, for alleged misrepresentations [**2] arising out of the sale of real estate. The Bosquets encountered problems in their attempts to obtain service of process on the relators and on 

March 18, 1999, the trial court notified them of its intent 

to dismiss their case on March 29, 1999, for want of 

prosecution. Citing the absence of service or a filed answer as grounds for dismissal of the case, the trial court's 

notice informed the Bosquets that their case would be 

dismissed unless "a default judgment is signed, an answer is filed, or service is accomplished." In response, 

they filed a verified motion to retain on March 29, 1999. 

The motion explained that they diligently had attempted 

to serve relators, who were now back in the United States 

after having been out of the country "for some time." 1

The Bosquets claimed they needed additional time, not 

for delay, but to obtain service of process. They requested the trial court to retain the case on the docket until 

June 28, 1999. 

1 Although the Bokelohs lived near London, 

England for some period of time, the other relators/defendants John Daugherty Relators, Inc. and 

Maureen Boyd are residents of Houston, Harris 

County, Texas. The Bosquets offered no explana-
Page 2 

21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, ** 

tion for their failure to obtain service on these 

parties. 

 [**3] [*787] The trial court dismissed the case

on March 31, 1999; however, the court clerk's notice of 

the dismissal is postmarked April 29, 1999. The Bosquets claim their counsel received it on May 3, 1999, and 

immediately contacted the trial court's administrative 

staff to point out that they had filed a motion to retain 

before the dismissal. On May 4, 1999, the trial court reinstated the case on its own motion. Thereafter, relators 

were served and answered the lawsuit. 

Trial was set for April 3, 2000. In February 2000, 

relators moved the trial court to vacate its order of reinstatement, alleging the court did not have jurisdiction to 

enter it. On March 6, 2000, the Bosquets filed a response 

that also purported to be a sworn motion establishing the 

date their counsel first received actual knowledge of the 

dismissal (via the clerk's post card notice of dismissal 

and final judgment). The Bosquets, however, insisted 

there was no need for a hearing on the matter because the 

trial court already had reinstated the case. The trial court 

denied relators' motion to vacate the order of reinstatement, prompting them to file a petition for writ of mandamus in this court. Relators claim the trial court's [**4] 

ruling attempting to reinstate the case is void, and ask 

this court to compel the trial court to vacate its order of 

reinstatement. 

With the April 2000 trial setting fast approaching,

relators moved for a continuance in the lower court. 

When, four days before trial, the court below had not 

ruled on that motion, relators filed an emergency motion 

for a stay in this court, seeking relief from the imminent 

trial setting. 2

 We stayed the trial court proceedings to 

protect this court's jurisdiction pending our ruling on the 

petition for writ of mandamus. 

2 RELATORS WAITED NEARLY 

ELEVEN MONTHS AFTER REINSTATEMENT OF THE CASE AND TWO BUSINESS DAYS BEFORE TRIAL TO CHALLENGE THE TRIAL COURT'S REINSTATEMENT ORDER BY MANDAMUS. 

NEVERTHELESS, LACHES CANNOT 

CONFER JURISDICTION UPON A COURT 

THAT HAS LOST JURISDICTION. SEE 

DUBAI PETROLEUM CO. V. KAZI, 12 S.W.3d 

71, 76 (TEX. 2000).

II. STANDARD OF REVIEW

Mandamus is intended to be an extraordinary remedy, available only in very limited circumstances [**5] 

"involving manifest and urgent necessity and not for 

grievances that may be addressed by other remedies." 

Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 

(Tex. 1989). Mandamus relief is available if the trial 

court abuses its discretion, either in resolving factual 

issues or in determining legal principles when there is no 

other adequate remedy by law. See Walker v. Packer,

827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses 

its discretion if "it reaches a decision so arbitrary and 

unreasonable as to amount to a clear and prejudicial error 

of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 

916, 917 (Tex. 1985). When alleging that a trial court 

abused its discretion in its resolution of factual issues, 

the party must show the trial court reasonably could have 

reached only one decision. See id. at 918. An abuse of 

discretion also occurs if the trial court clearly failed to 

analyze or apply the law correctly. See Walker, 827 

S.W.2d at 840. 

 

III. ANALYSIS OF THE ISSUES

The trial court entered its order of reinstatement 

more than thirty days after dismissing [**6] the case. 

Generally, a trial court loses plenary jurisdiction thirty 

days after entry of final judgment. See generally TEX. R. 

CIV. P. 329b; see also Thermex Energy Corp. v. Rantec 

Corp., 766 S.W.2d 402, 403 (Tex. App. --Dallas 1989, no 

writ). The Bosquets, relying on Texas Rules of Civil 

Procedure 165a and 306a, argue that the trial court's 

jurisdiction was extended beyond the original period and, 

therefore, it had jurisdiction to reinstate the case. 

A timely and proper motion to reinstate extends the

trial court's plenary power until thirty days after the motion is overruled either by a written signed order or by 

operation of law. See South Main v. Wittig, 909 S.W.2d 

243, 244 (Tex. App.--Houston [*788] [14th Dist.] 

1995, orig. proceeding) (citing TEX. R. CIV. P. 165a(3)). 

Where, as here, a court dismisses a case for want of 

prosecution, a party may file a motion to reinstate within 

thirty days after the order of dismissal is signed or within 

the period provided by Rule 306a. See Levit v. Adams, 

850 S.W.2d 469, 470 (Tex. 1993) (explaining that the 

period provided by Rule 306a must begin within 90 days 

of judgment; no provision [**7] for notice received 

more than 90 days after judgment, TEX. R. CIV. P. 

165a(3)). Because the trial court dismissed the Bosquets' 

case on March 31, 1999, a motion to reinstate was due by 

April 30, 1999 - one day after the postmark on the notice 

of dismissal and three days before the Bosquets claim 

their counsel received it. The trial court signed an order 

reinstating the case on May 4, 1999, after the original 

period of jurisdiction had expired. The Bosquets never 

filed a motion to reinstate the case. Now, they contend 

their motion to retain, filed before the trial court dismissed the case, should be treated as a premature motion 

to reinstate. Thus, they argue, their motion to retain extended the trial court's plenary power under Rule 

165a(3). In addition, they claim the trial court had juris-
Page 3 

21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, ** 

diction to reinstate their case because their response to 

relators' motion to vacate the reinstatement order satisfies 

Rule 306a(5). For reasons explained below, we reject 

both arguments. 

A. Is the motion to retain the functional equivalent of a motion to reinstate?

A prematurely filed motion to reinstate extends the

appellate timetables and the trial court's plenary jurisdiction. [**8] See Perez v. Texas Employers' Ins. Ass'n, 

926 S.W.2d 425, 426 (Tex. App.-Austin 1996, no writ). 

At issue in Perez was whether the plaintiff's verified motion to reinstate, filed before the final judgment, was 

effective to extend the appellate timetables. See id. First, 

the trial court signed an interlocutory order dismissing 

the plaintiff's case against two of the three defendants. 

See id. After the trial court denied the plaintiff's motions 

to reinstate, the court granted a non-suit as to the third 

defendant, thereby making the judgment final. See id. 

The Perez court, construing former Texas Rule of Appellate Procedure 58(a), 

3

 held that a prematurely filed, verified motion to reinstate extended the appellate timetable 

because it is a "proceeding relating to an appeal." 926 

S.W.2d at 427. Observing that Rule 58 did not contain a 

specific list of items that would extend the appellate 

timetable, the Perez court explained: 

We do not think the language in Rule 58 compels the 

exclusion of a verified motion to reinstate, whereas interpreting Rule 58 to allow a prematurely filed motion to 

reinstate to extend the appellate timetables [**9] harmonizes with the general principle of liberally construing 

the rules of appellate procedure when possible. 

3 Rule 58(a) provided: 

Proceedings relating to an appeal need not be 

considered ineffective because of prematurity if a 

subsequent appealable order has been signed to 

which the premature proceeding may properly be 

applied. 

See White v. Schiwetz, 793 S.W.2d 278, 280

(Tex. App. -- Corpus Christi 1992, no writ). 

Much of former Rule 58(a) is now embodied in 

Texas Rule of Appellate Procedure 27.2, governing premature filings, and provides in pertinent 

part: 

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. 

TEX. R. APP. P. 27.2. 

 

Perez, 926 S.W.2d at 427. 

4

 Therefore, the Perez court 

reasoned, a motion to reinstate extends the appellate 

timetables in the same way as a motion for new trial. 

Perez, 926 S.W.2d at 426-27 [**10] (citing Butts v. 

Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 

(Tex. 1986)). 

4 We recognize that the mere fact that the motion was overruled before the case was reinstated 

is not determinative. In the context of appellate 

timetables, a motion for new trial that has been 

overruled still serves the procedural functions of 

a motion for new trial: 

Rule 58 is not limited by its language to motions that are "live" when the final judgment is 

rendered, although for jurisdictional purposes . . . 

courts of appeals have engrafted such a requirement onto the rule by judicial interpretation. Other than [one case], in each of the cases in which 

the court engrafted the "live" pleading requirement to the rule, the court ultimately held the motion for new trial filed in the case was viable, and 

therefore could be considered as a premature motion. 

We have not previously addressed this construction of Rule 58. Another court has declined 

to follow the [live pleading requirement], however. Harris County Hosp. Dist. v. Estrada, 831 

S.W.2d 876 (Tex. App.--Houston [1st Dist.] 1992, 

no writ). In Estrada, the court observed the policy reasons for the rules concerning premature 

filings: "The Texas Supreme Court has twice enacted rules to assure that cases are not dismissed 

because the motion for new trial was filed too 

soon. Neither of those rules limits their application to 'live' pleadings. To require a 'live' pleading 

here would defeat the purpose of those rules." We 

conclude that the better reasoned application of 

Rule 58, more congruent with the Rule's purpose, 

is set forth in Estrada. The trial court was fully 

apprised of [the movant's] complaints in its motion for new trial and the hearing on the motion, 

and the court rejected those arguments when it 

reformed judgment [sic]. 

Fredonia State Bank v. General American 

Life Ins. Co., 881 S.W.2d 279, 282 (Tex. 1994)

(citations omitted) (interpreting former TEX. R. 

APP. P. 58). 

 [**11] 

 [*789] Texas Rule of Civil Procedure 329b governs motions for new trial. The rule extends the trial 

court's plenary power to thirty days after the overruling 

of any motion for new trial or motion to modify, correct, 
Page 4 

21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, ** 

or reform the judgment. Rule 329b does not include a 

specific list of items that operate to extend the appellate 

timetable. Thus, in determining whether a pleading operates to extend the trial court's plenary power under Rule 

329b, the issue is whether it seeks a new trial or constitutes a motion to modify, correct, or reform a judgment. 

Unlike Rule 329b, however, Rule 165a, governing dismissal for want of prosecution, specifically provides that 

filing a motion to reinstate extends the trial court's plenary jurisdiction. 

In considering whether the Bosquets' motion to retain operated as a motion to reinstate, we recognize that 

the substance of a motion, not its title, determines the 

relief sought. See Surgitek v. Abel, 997 S.W.2d 598 (Tex. 

1999); see also TEX. R. CIV. P. 71 ("When a party has 

mistakenly designated any plea or pleading, the court, if 

justice so requires, shall treat the plea or pleading as if it 

had been properly designated."). [**12] Therefore, in 

deciding this issue we do not focus on the title of the 

Bosquets' motion but on its nature and purpose. 

Rule 165a(3) provides that "a motion to reinstate 

shall set forth the grounds therefor and be verified by the 

movant or his attorney." TEX. R. CIV. P. 165a(3). The 

rule does not dictate the specific grounds the party 

should plead in the motion, nor does it require the motion 

to specifically state that the failure to respond was not 

intentional. See Gaylor v. Fluker, 843 S.W.2d 234, 236

(Tex. App.--Houston [14th Dist.] 1992, no writ). It is 

clear, however, that when a party files a motion to reinstate, the court must determine this issue at the hearing 

on reinstatement. See id. 

Here, the Bosquets' motion is verified and explains

why service on the relators/defendants, though diligently 

attempted, had not been obtained. However, neither the 

title nor the content of the motion makes any mention of 

reinstating a case that has been dismissed. Nor does the 

motion request a new trial, or propose by its terms to 

modify, correct, or reform a judgment. If it did, then it 

would not matter that it was filed before the dismissal; it 

would be the [**13] functional equivalent of a motion 

for new trial or a motion to reinstate. Instead of seeking 

this type of relief, however, the Bosquets' motion to retain simply asks the trial court not to [*790] dismiss 

the case in the first place. 5

 

5 For similar reasons, the Bosquets' contention 

that their response to the request to vacate is, in

reality, a bill of review, fails. The response contended the dismissal judgment had already been 

vacated; the response did not attack the judgment; 

it did not allege the grounds required for a bill of 

review; it was not an original petition filed in a 

separate cause; the substance was clearly a response to the motion to vacate reinstatement; and 

the prayer addresses (i) whether the motion to retain was a motion to reinstate and (ii) Rule 

306a(4) relief. See Carroll v. Carroll, 580 S.W.2d 

410, 413 (Tex. Civ. App.-Houston [1st Dist.] 

1979, no writ) (petition for bill of review must 

meet requisites). 

While courts have broad discretion to interpret 

pleadings [**14] liberally, the interpretation must be 

reasonable and consistent with the nature and character 

of the pleading at issue. To determine if the Bosquets' 

motion to retain meets these standards, we again focus 

on the text of Rule 165a(3), which states in part: 

The clerk shall deliver a copy of the motion to the

judge, who shall set a hearing on the motion as soon as 

practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. 

The court shall reinstate the case upon finding after 

a hearing that the failure of the party or his attorney was 

not intentional or the result of conscious indifference but 

was due to an accident or mistake or that the failure has 

been otherwise reasonably explained. 

TEX. R.CIV. P. 165a(3) (emphasis added). Rule 

165a plainly requires notice and a hearing on a motion to 

reinstate. To accept the Bosquets' argument that the motion to retain operated as a motion to reinstate, we would 

not only have to overlook the true nature of the pleading 

but also ignore the fact that the trial court failed to give 

the requisite notice and failed to conduct the requisite 

hearing. The Bosquets [**15] point out that at the time 

the court entered the order reinstating the case, relators 

had not yet made an appearance as parties in the litigation and, therefore, were not prejudiced by the lack of 

notice and opportunity to be heard in response to the 

motion. The Bosquets, however, point to nothing which 

would suggest the motion to retain served the purpose of 

a motion to reinstate or that the trial court viewed it as 

such. 6

 The record strongly suggests that by reinstating 

the case sua sponte, the trial court was attempting to 

correct what may have been an administrative error or 

oversight in the dismissal of the case, and that it was 

taking such action on its own, not in response to any motion. 

6 In fact, when the trial court entered its order

dismissing the Bosquets' claims, it effectively 

overruled their motion to retain. 

In support of their contention that the motion to retain served as the functional equivalent of a motion to 

reinstate, the Bosquets cite to Arguelles v. Kaplan, 736 

S.W.2d 782, 785 [**16] (Tex. App.--Corpus Christi 

1987, pet.ref'd n.r.e). In that case, the court treated the 

motion to reinstate, filed before dismissal was scheduled, 
Page 5 

21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, ** 

as a motion to retain. However, the point of error in Arguelles addressed only the trial court's decision not to 

dismiss after giving notice of its intention to dismiss. 7

The Arguelles court did not address the interpretation of 

the motion. Instead, it merely held that, "the dismissal or 

refusal to dismiss an action for want of prosecution is 

directed to the sound discretion of the trial judge, and his 

action will be reversed only upon a showing of an abuse 

of such discretion." Id. Under that standard, the trial 

court did not need a motion to retain or a hearing to retain the case on the docket. 

7 The trial court did hold a hearing on the motion to reinstate, as required by Rule 165a(3). 

In the final analysis, we reject the notion that the 

Bosquets' motion to retain was the functional equivalent 

of a motion to reinstate for two compelling reasons. 

[**17] First, it did not address reinstatement by title, 

content, or relief sought. Second, and equally important, 

we cannot countenance [*791] an argument that 

would undermine the basic framework for determining

appellate timetables. The same logic that would allow us 

to interpret the Bosquets' motion to retain opposing dismissal as a motion to reinstate after dismissal would 

open the door to arguments that any other pleading that 

opposes judgment in the first instance likewise operates 

to extend the trial court's plenary power and the appellate 

deadlines. Embracing this notion would contravene the 

rules that control the appellate timetables and create 

confusion and uncertainty about when a trial court's plenary jurisdiction expires. The Texas Supreme Court has 

repeatedly recognized the importance of ensuring certainty in computing appellate timetables, 8

 and we will 

not accept an argument that undermines this policy.

8 See, e.g, Mafrige v. Ross, 866 S.W.2d 590, 

592 (Tex. 1993) ("Litigants should be able to 

recognize a judgment which on its face purports 

to be final, and courts should be able to treat such 

a judgment as final for purposes of appeal."). 

 [**18] B. Did the trial court have limited jurisdiction under Rule 306a?

 The Bosquets next argue that they established the 

date of notice or their first actual knowledge by incorporating a Rule 306a motion into a response they filed 

nearly a year after judgment. This action, they contend, 

gave the court jurisdiction to reinstate the case four days 

after their counsel received the clerk's notice of dismissal. 

Rule 306a provides a mechanism to establish the 

commencement of the court's plenary power where notice is not received within twenty days of judgment. Rule 

306a(1) reaffirms that the thirty-day period for filing the 

reinstatement motion begins on the date the dismissal 

order is signed. See id. (citing TEX. R. CIV. P. 306a(1)). 

However, Rule 306a(4) and (5) provide a procedural 

remedy when more than twenty days have passed between the signing of the judgment of dismissal and the 

date a party receives the clerk's notice or otherwise acquires actual knowledge of the signing of the judgment. 

Rule 306a(4) allows a party to establish the date it actually received notice or acquired knowledge as the commencement of the plenary jurisdiction period. In this 

case, however, [**19] the Bosquets failed to take the 

procedural steps necessary to establish the date they or 

their counsel first received notice or acquired actual 

knowledge of the judgment. 

Rule 306a(5) requires the party seeking to implement Rule 306a(4) to: 

[i] file a sworn motion; 

[ii] provide notice to the other parties; and 

[iii] prove in the trial court the date upon which the 

party adversely affected first received the clerk's notice 

of judgment or acquired actual knowledge that the judgment had been signed. 

If the trial court determines a date of notice no more 

than ninety days after the original judgment was signed, 

then appellate deadlines and the period for the trial 

court's plenary power commence from the date of notice 

rather than the date the judgment was actually signed. 

See TEX. R. CIV. P. 306a(4); TEX. R. APP. P. 4.2(a)(1). 

Filing a motion that complies with the requirements

of Rule 306a invokes the trial court's jurisdiction for the 

limited purpose of determining the date of notice. See 

Memorial Hosp. v. Gillis, 741 S.W.2d 364, 365-66 (Tex. 

1987); In re Simpson , 932 S.W.2d 674, 677 (Tex. 

App.--Amarillo 1996, no writ). [**20] To invoke the 

trial court's jurisdiction to hold a hearing, the sworn motion must set forth facts that create a prima facie case 

demonstrating the party did not receive the clerk's notice 

or acquire actual knowledge of the judgment within 

twenty days after the judgment was signed. See Carrera 

v. Marsh, 847 S.W.2d 337, 342 (Tex. App.--El Paso 

1993, orig. proceeding). If the sworn motion fails to allege facts that would establish the application of Rule 

306a(4), any [*792] order determining the date of 

notice is void. See Gillis , 741 S.W.2d at 365-66; Simpson , 932 S.W.2d at 678; see also Grondona v. Sutton,

991 S.W.2d 90 (Tex. App.--Austin 1998, pet. denied) 

(only part of a prima facie case alleged within the period 

of plenary power; amendment to include full prima facie

case after plenary power expired failed to invoke the 

court's jurisdiction). As the Texas Supreme Court has 

explained: 

 
Page 6 

21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, ** 

Compliance with the time periods prescribed by these 

rules is a jurisdictional prerequisite. Unless a party establishes in the manner prescribed by the rule that he 

had no notice or knowledge [**21] of the judgment, 

the general rule prevails: a trial court's power to reinstate 

a cause after dismissal expires thirty days after the order 

of dismissal is signed. 

 

Memorial Hosp. of Galveston County v. Gillis, 741 

S.W.2d 364, 365 (Tex. 1987) (emphasis added); see also 

Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 

696, 697 (Tex. 1986) (per curiam) (effect of failure to 

comply with Rule 165a governing motions to reinstate 

after dismissals for want of prosecution); Olvera v. 

Olvera, 705 S.W.2d 283, 284 (Tex. App. -- San Antonio 

1986, writ ref'd n.r.e.) (per curiam) (on mot. for reh'g) (a 

movant under Rule 306a must not only file a sworn motion, but also must obtain a hearing and present evidence 

to support the motion). Here, the Bosquets failed to [i] 

file a sworn motion, [ii] give notice of a hearing, [iii] 

present evidence in a hearing as to the date of their actual 

knowledge or receipt of the court's notice, or [iv] obtain 

an order with written findings, resetting the commencement of the period of plenary power. Cf. Thompson v. 

Harco Nat. Ins. Co., 997 S.W.2d 607, 623 (Tex. 

App.-Dallas 1998, [**22] pet. denied) ("We reject any 

contention that a trial court 'impliedly' grants relief under 

Rule 306a(4) if it grants a motion for new trial filed more 

than thirty days after the entry of a final judgment."). 

 The Bosquets first endeavored to invoke Rule 

306a(5) in their response to the relators' motion to vacate 

the reinstatement order. This effort, however, did not 

come until nearly a year after the trial court signed the 

dismissal order. 9

 The Bosquets' response to the motion 

to vacate reinstatement (which they claim was also a 

Rule 306a motion that meets the requirements for a petition for bill of review) neither requested a hearing nor 

gave notice of one. The sole purpose of the sworn Rule 

306a(5) motion is to establish the limited jurisdiction 

necessary to hold the hearing. The Bosquets insisted 

there was no need for a hearing under Rule 306a(5) because the court already had granted the motion to reinstate. However, a hearing and notice of that hearing are 

essential to the validity of any Rule 306a(5) order. See 

Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994)

(orig. proceeding). There was no 306(a)(5) notice or 

hearing in this case. 

9 Because the Bosquets failed to implement 

Rule 306a(5), we do not address whether their 

effort was timely. The Bosquets claim that relators are estopped to claim the reinstatement order 

was void because relators continued to seek affirmative relief in the trial court after the reinstatement order was entered. However, the parties 

cannot confer jurisdiction, by estoppel, on a court

that has lost power to act. See Thompson , 997 

S.W.2d at 622. 

 [**23] Texas Rule of Appellate Procedure 4.2, 

entitled "No Notice of Trial Court's Judgement in Civil 

Case", states, "after hearing the [306a(5)] motion, the 

trial court must sign a written order that finds the date

when the party or the party's attorney first either received 

notice or acquired actual knowledge that the judgment or 

order was signed." TEX. R. APP. P. 4.2(c) (emphasis 

added). Failure to hold a hearing and make a finding 

once a prima facie case is established constitutes an 

abuse of discretion. See, e.g., Cantu , 878 S.W.2d at 

131-32 (requiring the trial court to hold a hearing and to 

make a finding in a written order when a party presents 

proof of the date of notice in trial court). The trial court 

signed no order finding the date the [*793] Bosquets 

or their attorney first received notice or acquired actual 

knowledge of the order of dismissal. 

The Bosquets do not dispute the lack of any notice,

hearing or order but instead characterize the 306a(5) motion as a "useless motion" under the facts of this case. 

They argue that because the trial court reinstated the case 

on its own, there was no need to take further action as the 

relief [**24] they sought already had been granted. 

Nevertheless, Rule 306a clearly requires a motion, notice, hearing and order to establish jurisdiction beyond 

the original plenary power. Because the Bosquets did not 

follow the procedure mandated by that rule, they failed 

to establish a new date for the trial court's plenary power 

to commence. Based on this record, we can only conclude that the trial court's jurisdiction expired thirty days 

after March 31, 1999. On May 4, 1999, the date the trial 

court issued its order reinstating the case, its jurisdiction 

had expired, and it had no authority to act. 

C. Is the reinstatement order void? 

A judgment is void "when it is apparent that the 

court rendering judgment 'had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction 

to enter the judgment, or no capacity to act as a court.'"

Id. (quoting Browning v. Placke, 698 S.W.2d 362, 363 

(Tex. 1985)). The order of reinstatement was not merely 

invalid or voidable; it was void from its inception. See 

Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). A 

void order is entirely null within itself; it is not susceptible [**25] to ratification or confirmation, and its nullity 

cannot be waived. See Guardianship of B.A.G., 794 

S.W.2d 510 (Tex. App.--Corpus Christi 1990) (void 

judgment) (citing Easterline v. Bean, 121 Tex. 327, 49 

S.W.2d 427, 429 (1932); American Universal Ins. Co. v. 

D.B. & B., Inc., 725 S.W.2d 764, 766 (Tex. App.--Corpus 

Christi 1987, writ ref'd n.r.e.)). Holding a trial court's 

order void, when that same order may have led the par-
Page 7 

21 S.W.3d 784, *; 2000 Tex. App. LEXIS 4326, ** 

ties to believe all was well may seem unfair, 10 but just as 

a trial court cannot act when it has no jurisdiction, a reviewing court cannot find jurisdiction where none exists. 

We find the trial court's May 4, 1999 order reinstating 

the case is void. 

10 A combination of factors make the result in this case seemingly harsh and unyielding. First, the dismissal was likely the result of 

an administrative error or oversight by the 

trial court. Second, the trial court's sua sponte

effort to remedy the error may have given the 

Bosquets a false sense that no other action was 

necessary. Then, for nearly a year after the 

court entered the order of reinstatement, the 

Bosquets pursued the litigation, only to learn 

on the eve of trial that their claims were dismissed after all and that the trial court's earnest effort to revivify them was without effect. 

However, the Bosquets are not without other 

possible remedies. They claim to have good 

grounds to pursue a bill of review. This may 

well be, but in the current posture of the case, 

the procedural deficiencies are jurisdictional. 

 [**26] 

D. Is mandamus relief warranted?

When a trial court erroneously reinstates a case after 

the expiration of the court's plenary jurisdiction, mandamus will issue. See Estate of Howley , 878 S.W.2d 139 

(Tex. 1994) (per curiam); see also South Main v. Wittig,

909 S.W.2d 243, 244 (Tex. App.-Houston [14th Dist.] 

1995, orig. proceeding). Having determined that the trial 

court had no jurisdiction at the time it entered the order 

reinstating the case, we find mandamus relief is warranted and, if necessary, shall issue to compel the court 

to vacate its void order. 

IV. CONCLUSION 

While the Texas Rules of Civil Procedure provide 

additional time to act for parties who do not receive 

timely notice of final judgments, the Bosquets did not 

take the procedural steps necessary to benefit from those 

rules. We cannot reasonably construe their motion to 

retain as anything but a plea to keep the case on the 

docket, a motion the trial court effectively over [*794] 

ruled in its dismissal order. Because the motion to retain 

cannot be deemed a prematurely filed motion to reinstate, motion for new trial, or motion to modify, change, 

[**27] or reform a judgment, the trial court's plenary 

power was not extended. There was no notice and hearing on the Bosquets' Rule 306a(5) contentions, and no 

order with factual findings. Consequently, there was no 

new date established for commencement of the trial 

court's plenary jurisdiction. These facts lead to the inescapable conclusion that the trial court's plenary power 

expired thirty days after it dismissed the case. Because 

the trial court was without jurisdiction when it entered 

the reinstatement order, that order is void. 

We conditionally grant relators' petition for writ of 

mandamus and direct the trial court to vacate its May 4, 

1999, order of reinstatement. The writ will issue only if 

the trial court does not comply. 

/s/ Kem Thompson Frost 

Justice 

Petition Denied and Opinion filed June 28, 2000. 

Panel consists of Justices Amidei, Anderson and 

Frost. 











| | Questioned

As of: April 7, 2015 5:48 PM EDT

Irlbeck v. John Deere Co.

Court of Appeals of Texas, Seventh District, Amarillo

June 10, 1986

No. 07-85-0009-CV

Reporter

714 S.W.2d 54; 1986 Tex. App. LEXIS 7698

LARRY IRLBECK, D/B/A I & B FARMS, APPELLANT, v.

JOHN DEERE COMPANY, APPELLEE

Subsequent History: [**1] Rehearing Denied July 7,

1986.

Prior History: FROM THE DISTRICT COURT OF

OCHILTREE COUNTY; 84TH JUDICIAL DISTRICT;

NO. 7079; HONORABLE J. E. BLACKBURN, JUDGE.

Core Terms

damages, evidentiary hearing, security agreement,

default judgment, promissory note, no writ, foreclosure,

default, hearsay, reasonable attorney's fees,

installments, unliquidated, evidential, pleadings,

combine, Holder

Case Summary

Procedural Posture

Appellant judgment debtor sought review of a default

judgment from the District Court of Ochiltree County,

84th Judicial District (Texas), which decreed appellant's

monetary liability to appellee tractor company and also

granted the foreclosure of appellee's security interest

liens on appellant's pledged collateral with an order of

sale.

Overview

Appellant judgment debtor challenged a default

judgment entered by the trial court. Appellant asserted

that the judgment was without the necessary evidential

support. The court affirmed the judgment and held that

appellee tractor company's claim for damages was an

unliquidated one, which required a hearing on damages.

However, the court held that the judgment was not

rendered without an evidentiary hearing because

appellee submitted its claim on the pleadings and

affidavits, with appended instruments, with no objection

and that the affidavit testimony admitted in court satisfied

the evidential hearing requirement. The court held that

inadmissible hearsay admitted without objection had

probative value that could be considered in determining

sufficiency. The court held that appellant's final points of

error were overruled because the alleged admissions

or stipulations of facts referred to by appellant were

developed in a temporary injunction hearing. The court

held that it would only consider evidence before the trial

court when the judgment was rendered and that it could

not go to the record of another case to ascertain facts

not shown in the record of the case before it.

Outcome

The court affirmed the judgment of the trial court and

held that there was not a complete absence of

admissible probative evidence of damages and that the

evidence was not too weak to support the damages

awarded. The court held that the alleged admissions or

stipulations in a statement of facts developed in a

temporary injunction hearing were not in the appellate

record requiring the remaining three points of error to be

overruled.

LexisNexis® Headnotes

Civil Procedure > ... > Costs & Attorney Fees > Attorney

Fees & Expenses > Reasonable Fees

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

HN1 A claim of damages that is an unliquidated one, by

virtue of Tex. R. Civ. P. 243, requires the court to hear

evidence of damages.

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview
HN2 Affidavit testimony of damages admitted in court

satisfies the evidential requirement of Tex. R. Civ. P.

243.

Criminal Law & Procedure > Sentencing > Imposition of

Sentence > Evidence

Evidence > ... > Statements as Evidence > Hearsay >

General Overview

HN3 Inadmissible hearsay admitted without objection

shall not be denied probative value merely because it is

hearsay. Tex. R. Evid. 802.

Civil Procedure >Appeals > Standards of Review > General

Overview

HN4 An appellate court will consider only evidence

before the trial when the judgment was rendered. An

appellate court cannot go to the record of another case

for the purpose of ascertaining a fact not shown in the

record of the case before it.

Counsel: Messrs. Jody Sheets and Timothy D. Zeiger,

Gassaway, Gurley, Sheets & Mitchell, Borger, Texas.

Messrs. Jeff Levinger and Michael L. McCoy,

Carrington, Coleman, Sloman & Blumenthal, Dallas,

Texas.

Judges: Reynolds, C.J., and Dodson and Boyd, JJ.

Opinion by: REYNOLDS

Opinion

[*55] Larry Irlbeck, d/b/a I & B Farms, perfected this

appeal from a default judgment decreeing his monetary

liability to John Deere Company, which was also granted

the foreclosure of its security interest liens on Irlbeck's

pledged collateral with an order of sale. With five points

of error, Irlbeck challenges the evidential support for,

and the foreclosure provision of, the judgment rendered.

On the rationale to be expressed, the points will be

overruled and the judgment will be affirmed.

John Deere brought the action underlying this appeal to

recover on two combination promissory notes and

security agreements Irlbeck executed and delivered to

Hansford Implement Company. One promissory

note-security agreement in the principal sum of

$14,187.49 [**2] was for Irlbeck's purchase and security

for the payment of a New Holl combine; the other in the

principal sum of $14,558.17 was for his purchase and

security for the payment of a Case tractor. Each note

was payable in installments -- the first in six installments,

and the second in eight installments -- of designated

[*56] amounts at designated times, and interest on

each past due installment accrued at the highest rate

permitted by law or 10% per annum, whichever was

lower. Each instrument provided that if the note be in

default, Irlbeck will pay all expenses, including

reasonable attorney's fees, incurred in collection or

otherwise. Each promissory note-security agreement

contained its written assignment by Hansford Implement

Company to John Deere Company.

John Deere filed its action on 6 April 1984, outlining the

transactions and alleging that as to each note, Irlbeck

has defaulted in his payments under the terms

of the note and security agreement, and has

failed and refused to make payments although

repeated demands for payment have been

made.

Then, John Deere made this allegation: "As of February

14, 1984, defendant owed plaintiff $9,918.06 including

all [**3] credits and offsets." John Deere prayed for

recovery from Irlbeck of the indebtedness described

with pre-and post-judgment interest and reasonable

attorney's fees, and for the foreclosure of its security

interest in the collateral, together with general relief.

Citation was issued on the day the action was filed, and

personal service was effected on Irlbeck on 16 April

1984. He neither appeared nor answered within the

time allowed by law.

Thereafter in June of 1984, John Deere moved the

court for default judgment. The motion was supported

by two affidavits, copies of Irlbeck's promissory notes

and security agreements, and copies of the filed

financing statements. The motion carried the

certification that a copy of it was mailed to Irlbeck by

certified mail on 8 June 1984. Irlbeck did not respond to

the motion.

One of the affidavits was executed by Jack B. Holder,

the Manager of Financial Services for John Deere. He

swore that he had personal knowledge of the facts

stated, among which were that the appended

promissory notes and security agreements are true and

correct copies of Irlbeck's promissory notes and security

agreements; that John Deere is the owner and holder in

714 S.W.2d 54, *54; 1986 Tex. App. LEXIS 7698, **1

Page 2 of 4
due course [**4] of the promissory notes;

and that as of 21 May 1984, 1984, [sic] there is

now due by defendant Larry Irlbeck d/b/a I & B

Farms, to the plaintiff, on the debt set forth in

the original petition the sum of $10,181.90 after

allowing all credits and offsets, with additional

interest accruing at the rate of 10% or $2.79 per

day thereafter.

Continuing, Holder stated that "payments are overdue

on the notes and defendant has refused to pay the sum

owing on the notes;" that to secure the sum owed,

Irlbeck gave to the holder of the promissory notes and

security agreements a security interest in the New Holl

combine and in the Case tractor which has not been

released; and that John Deere has retained the firm of

Carrington, Coleman, Sloman & Blumenthal to

represent it in the collection and had agreed to pay the

attorneys a reasonable fee for their services.

The other affidavit was executed by Michael L. McCoy,

an associate in the law firm. He detailed the

qualifications and legal services furnished to express

the opinion that a reasonable attorney's fee for the

firm's services in this cause would be $250.

On 29 June 1984, the court, hearing John Deere's

motion for default [**5] judgment, and reciting Irlbeck's

default, John Deere's entitlement to default judgment,

and the hearing of evidence, rendered judgment. By its

judgment, the court decreed that John Deere recover of

and from Irlbeck, d/b/a I & B Farms, the amount of

$10,181.90, together with the sum of $250 as

reasonable attorney's fees, with interest thereon at the

rate of 10% per annum from the date of the judgment,

and ordered the foreclosure of John Deere's security

interest liens on the New Holl combine and the Case

tractor with the issuance of an order of sale.

Irlbeck groups his first two points of error to present his

central contention that the judgment is without the

necessary evidential [*57] support. Initially, he charges

the trial court with error in rendering the judgment

without an evidentiary hearing on the unliquidated claim

which was not proved by an instrument in writing.

Secondly, he contends the evidence is legally and

factually insufficient to support the judgment rendered.

Under this record, Irlbeck correctly states that John

Deere's claim was unliquidated. Viewed objectively,

John Deere's pleading of its cause of action presented

a liquidated claim within a literal reading [**6] of Rule

241, Texas Rules of Civil Procedure, to permit the court

to assess damages without hearing evidence -- the

notes were in definite amounts payable in denominated

amounts at designated times with a stated interest rate

accruing upon nonpayment of an installment, and Irlbeck

ceased to make payments.

However, neither the notes nor the pleadings showed

the credits and offsets which John Deere pleaded Irlbeck

was allowed, and the pleadings did not state or even

indicate when default in payments occurred. Thus, the

pleaded factual allegations and the instruments in

writing were not sufficiently definite to enable the court

to make an accurate calculation from them of the amount

of principal and interest due on the notes. Moreover, the

reasonable attorney's fees provided by the instruments

are by their very nature unliquidated damages. It follows

that, as John Deere pleaded its cause of action, its HN1

claim of damages was an unliquidated one which, by

virtue of Rule 243, Texas Rules of Civil Procedure

required the court to hear evidence of damages.

Freeman v. Leasing Associates, Inc., 503 S.W.2d 406,

408 (Tex.Civ.App. -- Houston [14th Dist.] 1973, no writ).

And this result is [**7] not altered by John Deere's

pleaded allegation of the amount owed on a date certain

"including all credits and offsets," for this allegation is a

conclusion which, absent the factual allegations of

amounts and dates of payments on the notes, is

insufficient to enable the court to accurately calculate

the amounts due on the notes. Burrows v. Bowden, 564

S.W.2d 474, 476 (Tex.Civ.App. -- Corpus Christi 1978,

no writ); Hall v. C-F Emp. Credit U., 536 S.W.2d 266,

268 (Tex.Civ.App. -- Texarkana 1976, no writ).

Nevertheless, it cannot be successfully maintained, as

Irlbeck charges, that the judgment was rendered without

an evidentiary hearing. This is for the reason that John

Deere submitted its claim to the court on the pleadings

and affidavits, with appended instruments, to which no

objection was lodged. It has been held without

disapproval that HN2 affidavit testimony of damages

admitted in court satisfies the evidential requirement of

Rule 243, supra. K-Mart Apparel Fashions Corp. v.

Ramsey, 695 S.W.2d 243, 247 (Tex.App. -- Houston

[1st Dist.] 1985, writ ref'd n.r.e.).

Still, in contending evidential support for the judgment is

lacking, Irlbeck declares that the affidavits [**8] are

inadmissible under Rule 802, Texas Rules of Evidence,

because each statement in them is offered in evidence

to prove the truth of the matter asserted. Irlbeck

714 S.W.2d 54, *56; 1986 Tex. App. LEXIS 7698, **3

Page 3 of 4
misperceives the full import of Rule 802, which became

effective before this action was filed.

Although the rule initially states that hearsay is not

admissible except as provided by law, the second

sentence of the rule reads: "HN3 Inadmissible hearsay

admitted without objection shall not be denied probative

value merely because it is hearsay." That the rule

provides for hearsay admitted without objection to have

probative value sufficient to support a judgment was

forecast in Aquamarine Associates v. Burton Shipyard,

659 S.W.2d 820, 822 (Tex. 1983), and has become a

principle of law. K-Mart Apparel Fashions Corp. v.

Ramsey, supra; Aatco Transmission Co. v. Hollins, 682

S.W.2d 682, 685 (Tex.App. -- Houston [1st Dist.] 1984,

no writ); Neidert v. Dozers, 681 S.W.2d 847, 848

(Tex.App. -- Eastland 1984, no writ).

It seems accepted that at the hearing of evidence on an

unliquidated claim after default, testimony of the total

amount due under a written instrument is sufficient to

support an award of that amount, [**9] BLS Limousine

Service v. Buslease, Inc., 680 S.W.2d 543, 547

(Tex.App. -- Dallas 1984, no [*58] writ), and that such

testimony may be supplied by an affidavit, albeit

containing otherwise inadmissible hearsay, when it is

admitted without objection. K-Mart Apparel Fashions

Corp. v. Ramsey, supra. The unobjected to affidavit

testimony of Holder supported the amount awarded on

the notes in this cause. Likewise, the affidavit testimony

of the attorney, again containing otherwise inadmissible

hearsay but being admitted without objection, sufficiently

supported the award of attorney's fees. Neidert v.

Dozers, supra.

Given this situation and the standards of review

enunciated in Garza v. Alviar, 395 S.W.2d 821, 823

(Tex. 1965), as applicable to Irlbeck's evidential point of

error, it cannot be said either that there is a complete

absence of admissible, probative evidence of damages,

or that the evidence is too weak to support the damages

awarded. Consequently, Irlbeck's first two points of

error are overruled.

With his third, fourth and fifth points of error, Irlbeck

submits that if we find, as we have found, sufficient

evidence before the trial court to support [**10] the

default judgment, then there is yet error calling for a

reformation of the judgment. The error, Irlbeck alleges,

lies, in brief, in the rendered judgment's foreclosure

decree which, by not specifying the amount owned on

each piece of equipment, allows foreclosure of a

purchase money lien on the New Holl combine, an item

of exempt property, to pay nonexempt debts, particularly

since he has paid the amount due on the combine. To

show these facts, Irlbeck refers to John Deere's alleged

admissions or stipulations of facts contained in a

statement of facts developed in a temporary injunction

hearing four months after the default judgment was

rendered, and brought to this Court by John Deere's

appeal in that matter under our cause no.

07-84-0312-CV.

Those alleged admissions or stipulations of facts were

not before the trial court when the default judgment was

rendered, and, of course, they are not in the record of

this appeal; but, Irlbeck represents, those later

developed facts may be noticed by the authority of

State ex rel. Colleyville v. City of Hurst, 519 S.W.2d 698,

701 (Tex.Civ.App. -- Fort Worth 1975, writ ref'd n.r.e.).

However, the pronouncements of the Colleyville [**11]

court are not that definite nor that inclusive, and Irlbeck's

representation is untenable.

It is axiomatic that the HN4 appellate court will consider

only evidence before the trial when the judgment was

rendered. Gulf Oil Corp. v. Southland Royalty Co., 478

S.W.2d 583, 591 (Tex.Civ. App. -- El Paso 1972), aff'd,

496 S.W.2d 547 (Tex. 1973). And historically, the

accepted rule of law is that an appellate court cannot go

to the record of another case for the purpose of

ascertaining a fact not shown in the record of the case

before it. Victory v. State, 138 Tex. 285, 158 S.W.2d

760, 763 (1942); Nolan v. Bettis, 577 S.W.2d 551,

554-55 (Tex.Civ.App. -- Austin 1979, writ ref'd n.r.e.).

Thus, since reference may not be made to the statement

of facts in the other appeal for an ascertainment of the

facts, and appellate review must be confined to the

papers in this appeal by writ of error, McEwen v.

Harrison, 162 Tex. 125, 345 S.W.2d 706, 711 (1961),

which do not show the facts upon which Irlbeck's points

depend, [**12] the points must be, and they are,

overruled.

The judgment of the trial court is affirmed.

714 S.W.2d 54, *57; 1986 Tex. App. LEXIS 7698, **8

Page 4 of 4
Page 1 

Caution 

As of: Mar 30, 2015 

CHRISTOPHER LEIGH JOHN, PETITIONER v. MARSHALL HEALTH SERVICES, INC. AND HARRISON COUNTY HOSPITAL ASSOCIATION, INC. 

D/B/A MARSHALL REGIONAL MEDICAL CENTER, RESPONDENTS

NO. 00-0324 

SUPREME COURT OF TEXAS 

58 S.W.3d 738; 2001 Tex. LEXIS 86; 44 Tex. Sup. J. 1183

September 20, 2001, Delivered 

SUBSEQUENT HISTORY: On remand at, Remanded 

by John v. Marshall Health Servs., 91 S.W.3d 446, 2002 

Tex. App. LEXIS 8018 (Tex. App. Texarkana, 2002)

PRIOR HISTORY: [**1] ON PETITION FOR 

REVIEW FROM THE COURT OF APPEALS FOR 

THE SIXTH DISTRICT OF TEXAS. 

John v. Marshall Health Servs., Inc., 12 S.W.3d 888, 

2000 Tex. App. LEXIS 1215 (Tex. App. Texarkana, 2000)

DISPOSITION: We thus conclude that the court of 

appeals erred by dismissing the appeal for want of jurisdiction. Accordingly, the Court grants John's petition for 

review, and without hearing oral argument, reverses the 

judgment of the court of appeals and remands the case to 

that court for consideration of the parties' other arguments. 

OPINION 

 [*739] PER CURIAM 

There are two questions here. First: is a judgment 

rendered after the close of trial final and appealable if it 

does not expressly dispose of the plaintiff's claims 

against defendants with whom the plaintiff was negotiating settlement? Second: must a motion to extend 

post-judgment deadlines under Rule 306a(5) of the Texas 

Rules of Civil Procedure 1

 be filed within thirty days of 

the date the movant learned that judgment had been 

signed? The court of appeals answered both in the affirmative and dismissed the appeal for want of jurisdiction. 2

 We agree that the trial court's judgment was final

and appealable, but not that the appeal was untimely 

perfected. Accordingly, we reverse [**2] the judgment 

of the court of appeals and remand the case to that court 

for consideration of the merits. 

1 Unless otherwise noted, all references to 

rules are to the Texas Rules of Civil Procedure. 

2 12 S.W.3d 888. 

Plaintiff Christopher Leigh John sued six defendants: Trinity Mother Frances Health System, Tom 

Cammack, and Trincare Inc. ("the Trinity defendants"); 

Harrison County Hospital Association, Inc. and Marshall 

Health Services ("the Marshall defendants"); and Dianna 

Taylor. John alleged fraud, breach of contract, and tortious interference. The trial court granted partial summary judgment for the Marshall defendants on John's

breach-of-contract claims. Shortly before trial, John 

reached a preliminary settlement with the three Trinity 

defendants, but no final agreement was made and the

Trinity defendants were not dismissed from the case. The 

other three defendants moved for a continuance because 

of uncertainty about the effect of the settlement on the 

trial. The trial court denied the [**3] motion, and the 

case proceeded to trial on John's claims against Taylor 

and the Marshall defendants. John nonsuited Taylor dur-
Page 2 

58 S.W.3d 738, *; 2001 Tex. LEXIS 86, **; 

44 Tex. Sup. J. 1183 

ing the trial, and only his claims against the Marshall 

defendants were submitted to the jury. After the jury 

failed to reach a verdict, the trial court at first declared a 

mistrial, then withdrew that ruling and granted the Marshall defendants' earlier motion for a directed verdict. 

The Marshall defendants drafted and submitted a judgment, which the trial court signed on September 8. Entitled "Final Judgment", it recited the nonsuit of Taylor 

and ordered that John take nothing against the Marshall 

defendants. The judgment awarded costs against John

and contained a "Mother Hubbard" clause, that "all other 

relief not expressly granted in this judgment is denied." 

The judgment did not mention the three settling Trinity 

defendants, and the record does not reflect whether their 

settlement was finalized. 

The judgment was not filed by the clerk until September 13. John did not receive the defendants' proposed 

draft until several days later, and never received written 

notice from the clerk that a final judgment had been 

signed. 3

 John first learned of the judgment [**4] in a 

telephone conversation with the clerk on September 30. 

The clerk stated that the judgment had been signed September 13. John filed a motion for new trial on October 

13, more than thirty days after the judgment was signed 

[*740] when such motions must ordinarily be filed. 4

Post-judgment deadlines may be extended under Rule 

306a, but John did not file the requisite motion under 

Rule 306a(5) until December 10. After a hearing, the 

trial court agreed that John first learned of the judgment 

on September 30, but that the Rule 306a(5) motion was 

filed too late, and therefore the time for filing a motion 

for new trial was not extended. On December 13, John 

filed a notice of appeal which was timely only if 

post-judgment deadlines ran from September 30 instead 

of September 8. 

3 Rule 306a(3) provides in part: "When the final judgment or other appealable order is signed, 

the clerk of the court shall immediately give notice to the parties or their attorneys of record by

first-class mail advising that the judgment or order was signed." 

4 TEX. R. CIV. P. 329b(a). 

 [**5] On appeal, John argued that the judgment 

was not final because it did not dispose of the claims 

against the Trinity defendants. The court of appeals held 

that because the judgment followed a conventional trial 

on the merits and contained a "Mother Hubbard" clause, 

it was presumed final, 5

 citing this Court's opinions in 

North East Independent School District v. Aldridge 6 and 

Mafrige v. Ross. 

7

 The court of appeals further held that 

John's Rule 306a(5) motion should have been filed within thirty days of the date he first learned of the judgment 

and because it was not, neither the motion for new trial 

nor the notice of appeal were timely filed. 8 Accordingly, 

the court of appeals dismissed John's appeal for want of 

jurisdiction. 

5 12 S.W.3d at 890. 

6 400 S.W.2d 893, 897-898 (Tex. 1966). 

7 866 S.W.2d 590, 592 (Tex. 1993). 

8 12 S.W.3d at 891. 

We first consider whether the judgment was final. 

Recently in Lehmann v. Har-Con Corp., [**6] we 

observed that "the presumption that a judgment rendered 

after a conventional trial on the merits is final and appealable has proved fairly workable for nearly a century . 

. . ." 9

 John here argues that this presumption should not 

be rigidly applied to make judgments final contrary to 

litigants' reasonable expectations. We do not disagree 

with this argument in general, especially given today's 

frequency of separate trials of parties and claims in a 

single case, and bifurcated trials required in certain instances. However, we believe the presumption is entirely 

appropriate in a case like this. John did not move for 

separate trials; he went to trial against the only defendants against whom he still wished to prosecute his 

claims. The trial court and all of the parties were aware 

of the pending settlement, and there is nothing to indicate 

that the trial court did not intend the judgment to finally 

dispose of the entire case. John did not move for dismissal of his claims against the Trinity defendants or for an 

agreed judgment. Whether the judgment was final should 

not depend on one party's testimony that he did or did not 

finalize a settlement with parties from whom he sought 

no [**7] relief at trial. The Aldridge presumption fits 

just such circumstances. 

9 39 S.W.3d 191, 199 (Tex. 2001). 

We next consider the Rule 306a issue. Rule 306a(1)

provides that the periods within which parties may file 

various post-judgment motions and trial courts may exercise their plenary jurisdiction all run from the date the 

judgment is signed. Rule 306a(3) requires clerks to notify parties or their attorneys immediately when a judgment is signed. Rule 306a(4) provides the following exception to Rule 306a(1): 

If within twenty days after the judgment or other 

appealable order is signed, a party adversely affected by 

it or his attorney has neither received the notice required 

by paragraph (3) of this rule nor acquired actual 

knowledge of [*741] the order, then with respect to 

that party all the periods mentioned in paragraph (1) shall 

begin on the date that such party or his attorney received 

such notice or acquired actual knowledge of the signing, 

whichever occurred first, but in no event shall such [**8] 

periods begin more than ninety days after the original 

judgment or other appealable order was signed. 
Page 3 

58 S.W.3d 738, *; 2001 Tex. LEXIS 86, **; 

44 Tex. Sup. J. 1183 

Rule 306a(5) prescribes the procedure for claiming 

this exception: 

In order to establish the application of paragraph (4) 

of this rule, the party adversely affected is required to 

prove in the trial court, on sworn motion and notice, the 

date on which the party or his attorney first either received a notice of the judgment or acquired actual 

knowledge of the signing and that this date was more 

than twenty days after the judgment was signed. 

 

The rules do not set a deadline for filing a motion under 

Rule 306a(5). 

10

10 See Levit v. Adams, 850 S.W.2d 469 (Tex. 

1993). 

Nevertheless, the court of appeals in this case held 

that such a motion must be filed within thirty days of the 

date a party or his attorney first either receives the clerk's 

notice of a judgment or acquires actual knowledge that 

the judgment was signed. 11 Three other courts have 

reached the same conclusion, 12 but two [**9] courts 

have concluded that Rule 306a(5) does not prohibit a 

motion from being filed at any time within the trial 

court's plenary jurisdiction measured from the date determined under Rule 306a(4). 

13 The latter courts are 

plainly correct: Rule 306a simply imposes no deadline, 

and none can be added by decision, 14 other than the 

deadline of the expiration of the trial court's jurisdiction. 

We disapprove the cases that have reached a contrary 

result. 15

11 12 S.W.3d at 891. 

12 Thompson v. Harco Nat'l Ins. Co., 997 

S.W.2d 607, 618 (Tex. App.--Dallas 1998, pet. 

denied); Gonzalez v. Sanchez, 927 S.W.2d 218, 

221 (Tex. App.--El Paso 1996, no writ) (per curiam); Montalvo v. Rio Nat'l Bank, 885 S.W.2d 

235, 237 (Tex. App.--Corpus Christi 1994, no 

writ) (per curiam); Womack-Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 816 (Tex. 

App.--Dallas 1994, writ denied). 

13 Green v. Guidry, 34 S.W.3d 669, 670 (Tex. 

App.--Waco 2000, no pet.) (per curiam); Grondona v. Sutton, 991 S.W.2d 90, 92 (Tex. 

App.--Austin 1998, pet. denied) (per curiam); 

Vineyard Bay Dev. Co. v. Vineyard on Lake 

Travis, 864 S.W.2d 170, 172 (Tex. App.--Austin 

1993, writ denied) (per curiam). 

 [**10] 

14 See Lehmann, 39 S.W.3d at 205 (citing 

State Dept. of Highways & Pub. Transp. v. 

Payne, 838 S.W.2d 235, 241 (Tex. 1992), and Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 

(Tex. 1992)). 

15 See note 12 supra. 

Because the trial court here found that John did not 

have notice of the judgment until September 30, more 

than twenty days after it was signed, time periods based 

on the signing of the judgment ran instead from that date. 

Thus, under Rule 329b(a) the plaintiff had thirty days to 

file a motion for new trial, and he did so. Because the 

trial court did not rule on the motion, it was overruled by 

operation of law on the seventy-fifth day 16 after September 30, which was December 14. The trial court's

plenary jurisdiction did not expire until thirty days later, 

17 on January 13, 2000. The plaintiff's notice of appeal 

was due ninety days 18 from September 30, which was 

December 29, and was therefore timely when filed on

December 13. 

16 TEX. R. CIV. P. 329b(c). 

 [**11] 

17 TEX. R. CIV. P. 329b(e). 

18 TEX. R. APP. P. 26.1(a). 

 [*742] We thus conclude that the court of appeals

erred by dismissing the appeal for want of jurisdiction. 

Accordingly, the Court grants John's petition for review, 

and without hearing oral argument, reverses the judgment of the court of appeals and remands the case to that 

court for consideration of the parties' other arguments. 
Page 1 

Caution 

As of: Mar 30, 2015 

WILLIAM JONES, ET AL., Appellants v. MARK C. GRIEGE, Appellee 

No. 05-90-01194-CV 

COURT OF APPEALS OF TEXAS, Fifth District, Dallas 

803 S.W.2d 486; 1991 Tex. App. LEXIS 453

January 30, 1991, Filed 

PRIOR HISTORY: [**1] On Appeal from the 

Probate Court No. 2; Dallas County, Texas; Trial Court 

Cause No. 86-4590-P/2. 

JUDGES: Enoch, C.J., and Lagarde and Joe Burnett JJ. 

OPINION BY: BURNETT 

OPINION 

 [*487] OPINION 

We questioned whether the judgment in this case 

was final, to determine whether we had jurisdiction over 

this appeal. For the reasons given below, we conclude 

that the judgment is final and that we do have jurisdiction. 

Appellee Mark C. Griege succeeded appellant William Jones as the guardian of an incompetent person. 

Griege sued Jones and alleged that Jones had misappropriated various funds held in trust for the incompetent. 

Griege requested both actual and punitive damages from 

Jones. 

Griege then filed a motion for summary judgment, 

which was granted. The summary judgment awarded 

Griege actual damages but was silent on Griege's request 

for punitive damages. Although the summary judgment

did not purport to dispose of the entire probate proceeding, it is not necessary that it do so for purposes of appellate review. An order in a probate proceeding is appealable if it finally adjudicates some substantial right 

and the order may be final and appealable even though 

the decision [**2] does not fully and finally dispose of 

the entire probate proceeding. Bowen v. Hazel, 723 

S.W.2d 795, 797 (Tex. App.--Texarkana 1987, no writ). 

Nonetheless, Griege's request for punitive damages was 

necessarily urged in Griege's proceeding against Jones. 

Therefore, if the summary judgment did not dispose of 

that request, then it did not finally adjudicate all of 

Griege's claims against Jones. A summary judgment enjoys no presumption of finality. See Chase Manhattan 

Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990)

(per curiam) (on mot. for reh'g). Therefore, we had to 

determine whether this summary judgment disposed of

Griege's request for punitive damages. 

In response to the inquiry that we made, Griege's attorney wrote the Court a letter. It stated that: 

As counsel for [Griege] and in consultation with my

client, we decided not to pursue the punitive damage 

claim. . . . Therefore, the summary judgment which was 

entered was not entered by mistake. It was a conscious 

decision on the part of [Griege] to forego his right to 

attempt to collect punitive damages. 

There is no showing that Griege had ever informed 

the trial court, however, of his decision to waive [**3] 

his request for punitive damages. We hold that it was not 

necessary for Griege to do so in order to show that the 

jurisdiction of this Court has been successfully invoked. 

We are aware that parties cannot generally confer 

jurisdiction upon a court by waiver. What is usually 
Page 2 

803 S.W.2d 486, *; 1991 Tex. App. LEXIS 453, ** 

meant by that principle, however, is that a party cannot 

agree to having an action heard by a tribunal that otherwise lacks authority to hear it. E.g., Welder v. Fritz, 750 

S.W.2d 930, 932 [*488] (Tex. App.--Corpus Christi, 

orig. proceeding) (parties cannot agree to treat a master's 

recommendation as if it were an order entered by a district judge for purposes of having it reviewed); Hogan v. 

G., C. & S.F. Railway Co., 411 S.W.2d 815, 816 (Tex. 

Civ. App.--Beaumont 1966, writ ref'd) (parties cannot 

agree to have the Ninth District Court of Appeals hear a 

case arising in the Twelfth District). A waiver of a court's 

lack of jurisdiction necessarily entails at least an implicit 

agreement between the parties, to which they hope that 

the court assents, to have the court resolve their controversy. 

In contrast, Griege has not waived the lack of this

Court's jurisdiction. He has waived only a claim for 

[**4] affirmative relief in the form of punitive damages. 1

 His act of waiver is a "unilateral act," not requiring 

Jones's agreement. Burton v. National Bank of Commerce of Dallas, 679 S.W.2d 115, 117 (Tex. 

App.--Dallas 1984, no writ). By that unilateral act, 

Griege removes the necessity for the trial court to take 

any further action and so imparts the requisite finality to 

the judgment now in place. That Jones may not have 

known of Griege's decision to waive his request for punitive damages at the time that Jones perfected this appeal 

is irrelevant: at most, Jones would have perfected this 

appeal prematurely. See TEX. R. APP. P. 58(b). The only 

remaining question is whether Griege was required, once 

he had decided to waive his request for punitive damages, to take any further action in the trial court before he 

informed this Court of his waiver. 

1 We are careful to note that Griege has given 

us notice of his waiver of a request for relief, and 

not a waiver of the cause of action that might 

support such relief. We expressly reserve ruling 

today on whether a party can waive, for the first 

time on appeal, an underlying cause of action 

without taking further action, such as a nonsuit, 

in the trial court, in order to establish a judgment's finality. 

 [**5] 

Each court of appeals may, on affidavit or otherwise, 

as the court may determine, ascertain the matters of fact 

that are necessary to the proper exercise of its jurisdiction. TEX. GOV'T. CODE ANN. § 22.220(c) (Vernon 

1988). Appellate courts may receive affidavits to determine questions of jurisdiction if the facts are not otherwise apparent in the record. Stewart v. Texco Newspapers, Inc., 734 S.W.2d 175, 177 (Tex. App.--Houston [1st 

Dist.] 1987, no writ). This Court has held that the inquiry 

into appellate jurisdiction is not in all cases limited to the 

record on appeal. Smith v. Basham, 227 S.W.2d 853, 

855 (Tex. Civ. App.--Dallas), aff'd, 149 Tex. 279, 233 

S.W.2d 297 (Tex. 1950). A court of appeals may make 

inquiry into jurisdiction and hear extrinsic evidence to 

show that a record does not speak the truth, where it 

shows jurisdictional facts. Loper v. Hosier, 148 S.W.2d 

889, 894 (Tex. Civ. App.--Dallas 1941, writ dism'd, 

judgment cor.) (per curiam) (on mot. for reh'g). 

Usually, an appellate court receives extrinsic evidence to show why an appeal should be dismissed. One 

example occurs when an appellant has enjoyed the benefits of a judgment. See Roach [**6] v. Roach, 672 

S.W.2d 524, 532-33 (Tex. App.--Amarillo 1984, no writ) 

(on mot. for reh'g). Another example occurs when events 

subsequent to the judgment render the subject matter of 

the appeal moot. See Roadrunner Investments, Inc. v. 

Texas Utilities Fuel Co., 526 S.W.2d 615, 616 (Tex. Civ. 

App.--Fort Worth 1975, no writ). Yet there is no sound 

reason why an appellate court should be able to receive 

extrinsic evidence to decline jurisdiction and not be able 

to receive extrinsic evidence to assert jurisdiction. An 

instructive case is Texas & Pacific Railway Co. v. Beckham Brothers & Co., 202 S.W. 991, 992 (Tex. Civ. 

App.--El Paso 1918, writ ref'd). In that case, the names 

of two plaintiffs were at variance from the names of two 

prevailing parties in the judgment. The judgment therefore did not show that all parties had been disposed of. 

Compare Shivers Well Service, Inc., v. Houston, 736

S.W.2d 251, 252-53 (Tex. App.--Fort Worth 1987, orig. 

proceeding) (an asserted misnomer in two judgments 

resulted in the judgments being interlocutory). The

Beckham Brothers Court, however, allowed the identity 

of the parties to be established by uncontroverted affidavit, so that [**7] the parties [*489] could show that 

the judgment was in fact final. 202 S.W. at 992. Thus, it 

follows that, if this Court questions its jurisdiction because the trial court has not expressly granted or denied a 

request for relief, the party who made that request can 

establish the finality of the trial court's judgment simply 

by notifying this Court that he has waived the request. 

We conclude that Griege's notice, to this Court, of

his decision to waive his request for punitive damages 

suffices to establish that the trial court's judgment is now 

final. Accordingly, we have jurisdiction over this appeal. 
| | Cited

As of: April 7, 2015 5:50 PM EDT

Jones v. Rabson & Broocks, L.L.C.

Court of Appeals of Texas, First District, Houston

February 13, 2003, Filed

NO. 01-01-01210-CV

Reporter

2003 Tex. App. LEXIS 1443; 2003 WL 302439

TERRY JONES, Appellant v. RABSON & BROOCKS,

L.L.C.; PELICAN CONNECTION MANAGEMENT,

L.L.C.; AND BROOCKS, BAKER & LANGE, L.L.P.,

Appellees

Prior History: [*1] On Appeal from the 129th District

Court. Harris County, Texas. Trial Court Cause No.

00-28899.

Disposition: Affirmed.

Core Terms

deed, trial court, summary judgment, damages, theft,

cause of action, amended petition, constable's,

amendment to pleading, civil conspiracy, attorney's fees,

records, no evidence, counterclaim, sanctions, Street,

summary judgment hearing, slander of title, pleadings,

contends, overrule, cloud

Case Summary

Procedural Posture

Plaintiff landowner sued defendants, law firm, company,

and partnership (law firm), for quiet title, conversion,

theft, civil conspiracy, tortious interference with contract,

wrongful execution, and slander of title. The law firm

filed a no-evidence motion for summary judgment. The

129th District Court for Harris County (Texas) rendered

summary judgment for the law firm. The landowner

appealed.

Overview

The law firm executed a judgment against a previous

owner of the land and obtained several parcels of the

previous owner's land at a constable's sale. The

landowner was negotiating a sale to a third party, which

fell thru because of the cloud on his title caused by the

constable's sale. As soon and the landowner submitted

his deed to the law firm, the law firm issued him a deed

without warranty. The appellate court found that: (1) the

summary judgment was a final appealable judgment,

(2) the trial court did not abuse its discretion in not

allowing the landowner to file his third and fourth

amended petitions because the landowner did not seek

the trial court's permission to file the amended

pleadings, (3) the landowner failed to state a cause of

action for theft or civil conspiracy because there was no

evidence of theft or any other unlawful act, and (4) the

landowner failed to state a cause of action for slander of

title because there was no evidence of legal malice or

special damages.

Outcome

The district court's judgment was affirmed.

LexisNexis® Headnotes

Civil Procedure > ... > Pleadings > Amendment of

Pleadings > General Overview

Civil Procedure > Judgments > Summary Judgment >

General Overview

Civil Procedure > ... > Summary Judgment > Hearings >

General Overview

Civil Procedure > ... > Summary Judgment > Motions for

Summary Judgment > Timing of Motions & Responses

HN1 Tex. R. Civ. P. 63 provides that amended pleadings

shall not be filed within seven days of trial without

obtaining leave of court. A summary judgment hearing

is a trial governed by Tex. R. Civ. P. 63. It is well-settled

summary judgment law that if a nonmovant for summary

judgment (1) files an amended pleading after the

summary judgment hearing and (2) the amended

pleading raises an additional claim not mentioned in the

summary judgment motion, then the trial court does not

err in granting the summary judgment motion because
the trial court may consider only the pleadings on file at

the time of the hearing, or filed after the hearing, but

before judgment with permission of the court.

Civil Procedure > Appeals > Summary Judgment Review >

General Overview

Civil Procedure > ... > Summary Judgment > Motions for

Summary Judgment > General Overview

Civil Procedure > ... > Summary Judgment > Entitlement

as Matter of Law > General Overview

Torts > ... > Concerted Action > Civil Conspiracy > General

Overview

HN2 The appellate court reviews a "no-evidence"

summary judgment motion in the light most favorable to

the nonmovant; it assumes the nonmovant's evidence

to be true and resolves any doubts in the nonmovant's

favor, while disregarding all evidence and inferences to

the contrary.

Civil Procedure > ... > Summary Judgment > Entitlement

as Matter of Law > General Overview

Criminal Law & Procedure > Criminal Offenses > Acts &

Mental States > General Overview

HN3 To defeat a no-evidence motion under Tex. R. Civ.

P. 166a(i), the nonmovant has to raise a fact issue

showing that the defendants (1) unlawfully (2)

appropriate his property (3) with the intent to deprive

him of it. Tex. Penal Code Ann. § 31.03 (Vernon 2000).

Intent to deprive is the accused's intent at the time of the

taking. Intent may be inferred from a failure to return the

property.

Real Property Law > Title Quality >Adverse ClaimActions >

Quiet Title Actions

Torts > ... > Concerted Action > Civil Conspiracy > General

Overview

HN4 A civil conspiracy claim is not actionable unless

there is an overt, unlawful act.

Real Property Law > Title Quality >Adverse ClaimActions >

General Overview

Real Property Law > Title Quality >Adverse ClaimActions >

Quiet Title Actions

Torts > Business Torts > Slander of Title > General

Overview

Torts > Business Torts > Slander of Title > Elements

Torts > Business Torts > Trade Libel > General Overview

Torts > ... > Concerted Action > Civil Conspiracy > General

Overview

Torts > ... > ConcertedAction > Civil Conspiracy > Elements

HN5 To recover in an action for slander of title, a party

must plead and prove: (1) the uttering and publishing of

disparaging words; (2) falsity; (3) malice; (4) special

damages; (5) possession of an estate or interest in the

property disparaged; and (6) the loss of a specific sale.

Civil Procedure > Judgments > Enforcement & Execution >

Writs of Execution

Torts > Intentional Torts > Prima Facie Tort > General

Overview

HN6 Legal malice is defined as wrongful conduct that is

intentional and without just cause or excuse.

Civil Procedure > ... > Summary Judgment > Hearings >

General Overview

Real Property Law > Title Quality >Adverse ClaimActions >

General Overview

Real Property Law > Title Quality >Adverse ClaimActions >

Quiet Title Actions

Torts > Business Torts > Slander of Title > General

Overview

Torts > Remedies > Damages > General Overview

HN7 A plaintiff claiming slander of title may recover the

amount he would have realized from the lost sale minus

the amount for which he can sell the land at the time of

trial with the cloud removed.

Judges: Panel consists of Justices Taft, Keyes, and

Higley.

Opinion by: Evelyn V. Keyes

Opinion

MEMORANDUM OPINION

This is an appeal of summary judgment rendered for

appellees/defendants Rabson & Broocks, L.L.C.;

Pelican Connection Management, L.L.C.; and Broocks,

Baker & Lange, L.L.P (the Rabson defendants) against

appellant, Terry Jones. In eight issues presented for

review, Jones challenges the rendition of summary

judgment, contending that (1) the Rabson defendants

were not entitled to summary judgment on his causes of

2003 Tex. App. LEXIS 1443, *1

Page 2 of 6
action for theft, civil conspiracy, slander of title, and

tortious interference with contract; (2) he suffered

recoverable damages; (3) he has a viable claim for

attorney's fees; (4) the trial court abused its discretion

by not granting him leave to file his third and fourth

amended petitions; and (5) summary judgment was

improperly rendered because there was an unresolved

counterclaim. We affirm.

Factual & Procedural Background

The parties [*2] do not dispute the essential facts of the

underlying dispute; however, the parties' interpretation

of those facts is greatly disparate. The events leading to

this lawsuit unfolded in the following sequence. The

Rabson defendants obtained a $ 360,000 judgment

against Gladys Goffney in an unrelated lawsuit. In the

spring of 1999, as part of their efforts to collect the

judgment, the Rabson defendants searched the Harris

County real property records and identified roughly 17

pieces of property that Goffney owned, including an

unimproved lot at 5206 Wayne Street in Houston. After

a writ of execution was issued on the judgment in May

1999, the Rabson defendants requested a constable's

sale of the properties. On July 6, 1999, the constable's

sale was completed. The Rabson defendants received

the deeds from the sale on August 11, 1999 and

recorded them in October 1999. The Wayne Street

property, however, had been sold six years earlier to

Noah Murchison. It is not clear from the record whether

the deed records were incomplete or the person who

searched the records overlooked the deed conveying

the property from Goffney to Murchison.

After the writ of execution was issued in the unrelated

[*3] lawsuit against Goffney, but before the constable's

sale took place, Murchison sold the property to Jones

for $ 12,500. Jones recorded his deed on July 27, 1999.

Only after Jones began negotiating with the Fifth Ward

Community Redevelopment Corporation to sell it the

property for $ 25,000 did he learn there was a cloud on

his title; he was unable to complete the sale of the

property in November 1999 as planned. Just after the

first of the year 2000, Jones contacted the Rabson

defendants to attempt to resolve the question of

ownership. He originally sent an unsigned, unrecorded

deed to the Rabson defendants' counsel that was not

accepted as proof of ownership; on March 30, 2000,

Jones supplied a signed, recorded deed conveying the

property from Goffney to Murchison.

Upon receiving this deed, the Rabson defendants

conceded that Jones was the rightful owner of the

property. Jones asked the Rabson defendants to supply

him with a general warranty deed but, because their title

was void from inception, the Rabson defendants refused

to execute such a deed. Instead, they provided Jones

with a deed without warranty.

The Rabson defendants characterize their inclusion of

the Wayne Street [*4] property in the constable's sale

as an innocent mistake--one they rectified as soon as

they obtained legal proof that Jones owned the property.

Jones, in contrast, characterizes the entire series of

transactions as a malicious, fraudulent scheme to

deprive him of his property. When he did not obtain the

general warranty deed he asked for, Jones filed suit to

quiet title. He sought to recover compensatory damages,

exemplary damages, and attorney's fees. The Rabson

defendants answered with a general denial.

On October 13, 2000, despite Jones's earlier refusal to

accept an identical deed, the Rabson defendants

delivered to Jones an executed deed without warranty

in which it conveyed any and all of their interests in the

Wayne street property to Jones. Evidently, Jones has

never recorded this deed. In November 2000, the Fifth

Ward Community Redevelopment Corporation renewed

its offer to purchase the property for $ 25,000. Jones

refused the sale, in part because he believed that the

cloud on the property was not removed, in part because

of the pending litigation, and in part because he was no

longer interested in selling for that price.

Jones filed a second amended petition in [*5] December

2000, setting out causes of action for conversion, theft,

civil conspiracy to commit theft, and slander of title. 1

Broocks, Baker & Lange filed a second, separate

answer to this amended petition, repeating the general

denials and pleading the affirmative defenses of failure

to mitigate damages and tender of performance. The

firm also added a counterclaim for Rule 13 violations,

seeking attorney's fees. In January, the Rabson

defendants filed a no-evidence motion for summary

judgment in which they identified elements of each

cause of action for which there was no evidence and

challenged all causes of action based on an absence of

proof of damages. In his response to the motion, Jones

filed an affidavit setting out the facts in detail. The

motion was heard on March 26, 2001. Before the trial

1 Although the second amended petition is not included in the clerk's record, the parties both refer to these causes of action

in their pleadings and motions; accordingly, we accept these as having been pleaded.

2003 Tex. App. LEXIS 1443, *1

Page 3 of 6
court ruled on the motion, Jones filed a third amended

petition, three days after the summary judgment hearing,

adding a cause of action for tortious interference with

contract and seeking additional damages for mental

anguish. The Rabson defendants supplemented their

motion for summary judgment to raise a no-evidence

challenge to this additional cause of action. Jones filed

a fourth amended [*6] petition on August 14, 2001

adding a cause of action for wrongful execution.

The trial court rendered summary judgment on

September 10, 2001, basing it on the March hearing.

The judgment did not address the counterclaim for

sanctions but included a "Mother Hubbard" clause.

Jones's motion for new trial was overruled by operation

of law and this appeal ensued. On appeal, Jones does

not address the cause of action for conversion; thus he

has waived any complaint regarding this issue.

Finality of Judgment

As a threshold matter, we address Jones's eighth issue

on review to determine whether this appeal is, as he

claims, interlocutory because there is an outstanding

counterclaim for sanctions. The Rabson defendants

argue that a counterclaim for sanctions is not a cause of

action that the trial [*7] court was obligated to address in

its judgment. They also contend that the trial court orally

denied the motion for sanctions, but that the order was

apparently not reduced to writing. Jones does not

address whether the trial court ruled on the motion for

sanctions and speaks only to the language of the

judgment itself.

Jones argues that the judgment was interlocutory

because there is no language in the trial court's

judgment that "with unmistakable clarity informs that it

was a final judgment." We disagree. The order is entitled

"FINAL SUMMARY JUDGMENT" and the last sentence

of the judgment states, "All relief requested and not

expressly granted is denied." The Rabson defendants

have not contested the finality of the appeal, nor

appealed the trial court's denial of their claim for

sanctions. Jones treated the judgment as final by filing

a motion for new trial, in which he does not mention the

counterclaim, and by filing a notice of appeal. Based on

the record and the language of the judgment, we

conclude that the judgment was final for purposes of

appeal. See Lehman v. Har-Con Corp., 39 S.W.3d 191,

205, 44 Tex. Sup. Ct. J. 364 (Tex. 2001). Accordingly,

we overrule issue eight and [*8] address the merits of

the appeal.

Amended Pleadings

In issue seven, Jones contends the trial court abused its

discretion by not granting him leave to file his third and

fourth amended petitions. He argues that because the

Rabson defendants did not move to strike the pleadings

or show they were prejudiced by the untimely amended

petitions, the trial court abused its discretion by not

considering these later petitions. It is evident from the

judgment that the trial court did not consider the third or

fourth petitions because the judgment was based on

the motions and the summary judgment hearing held on

March 26, 2001, before either amended petition was

filed. The record does not contain a motion for leave to

late-file either petition, a motion to strike the amended

pleadings, or an order striking them.

Rule 63 of the Texas Rules of Civil Procedure HN1

provides that amended pleadings shall not be filed

within seven days of trial without obtaining leave of

court. TEX. R. CIV. P. 63. A summary judgment hearing

is a "trial" governed by Rule 63. See Goswami v.

Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490,

31 Tex. Sup. Ct. J. 399 (Tex. 1988). It is well-settled

summary judgment [*9] law that if a nonmovant for

summary judgment (1) files an amended pleading after

the summary judgment hearing and (2) the amended

pleading raises an additional claim not mentioned in the

summary judgment motion, then the trial court does not

err in granting the summary judgment motion because

the trial court may consider only the pleadings on file at

the time of the hearing, or filed after the hearing (but

before judgment) with permission of the court.

Automaker, Inc. v. C.C.R.T. Co., Ltd., 976 S.W.2d 744,

746 (Tex.App.--Houston [1st Dist.] 1998, no pet.). Jones

did not seek the trial court's permission to file his

amended pleadings. Although the Rabson defendants

did not file a motion to strike the amended pleadings,

they filed a letter with the trial court objecting to the

amendments. The trial court did not err in refusing to

consider these late-filed pleadings.

We overrule issue seven. Therefore, we will not address

Jones's causes of action for tortious interference with

contract or wrongful execution, nor his claim for

damages based on mental anguish. We also overrule

issue five, in which Jones contends that summary

judgment on the tortious interference [*10] with contract

claim was improper.

Theft, Civil Conspiracy, and Slander of Title

In issues one, two, and three, Jones contends the trial

court erred in rendering summary judgment for the

2003 Tex. App. LEXIS 1443, *5

Page 4 of 6
Rabson defendants on Jones's claims for theft, civil

conspiracy, and slander of title. HN2 We review a

"no-evidence" summary judgment motion in the light

most favorable to the nonmovant; here, we assume

Jones's evidence to be true and resolve any doubts in

his favor, while disregarding all evidence and inferences

to the contrary. Jones v. Bank United of Texas, FSB, 51

S.W.3d 341, 343 (Tex. App.--Houston [1st Dist.] 2001,

pet. denied).

Theft & Civil Conspiracy

HN3 To defeat the no-evidence motion under 166a(i),

Jones had to raise a fact issue showing that the Rabson

defendants (1) unlawfully (2) appropriated his property

(3) with the intent to deprive him of it. TEX. PEN. CODE

ANN. § 31.03 (Vernon 2000). Intent to deprive is the

accused's intent at the time of the taking. Thomas v.

State, 753 S.W.2d 688, 694 (Tex. Crim. App. 1988).

Intent may be inferred from a failure to return the

property. Rowland v. State, 744 S.W.2d 610, 613 (Tex.

Crim. App. 1988). [*11]

Although Jones argues that his affidavit provides ample

evidence of theft, we cannot agree. He has globally

stated facts to support his conclusions as he sees them,

but has not connected any of these facts to each

challenged element of his claims, such as whether the

Rabson defendants committed an unlawful act. The

constable's sale was held pursuant to a lawful writ of

execution. Nor does Jones provide evidence of intent.

The Rabson defendants argue there is no evidence of

intent to deprive Jones of the property because the

constable's deed transferred only Gladys Goffney's

interest in the property, not Jones's. The Rabson

defendants provided Jones with a deed disclaiming any

interest in the property, albeit a deed Jones apparently

believes does not remove the cloud on the title, thus

refuting any inference of theft. While the inclusion of the

Wayne Street property in the constable's sale was

unfortunate, we hold Jones provided no evidence to

show that it was tantamount to theft.

HN4 A civil conspiracy claim is not actionable unless

there is an overt, unlawful act. American Tobacco Co.,

Inc. v. Grinnell, 951 S.W.2d 420, 438, 40 Tex. Sup. Ct. J.

658 (Tex. 1997). Because we have held [*12] there was

no theft, and Jones has not alleged any other unlawful

act, we further hold that there was no overt, unlawful act

upon which a conspiracy could have rested. The trial

court did not err in rendering summary judgment on

Jones's claims for theft and civil conspiracy.

We overrule issues one and two.

Slander of Title

HN5 To recover in an action for slander of title, a party

must plead and prove: (1) the uttering and publishing of

disparaging words; (2) falsity; (3) malice; (4) special

damages; (5) possession of an estate or interest in the

property disparaged; and (6) the loss of a specific sale.

See Williams v. Jennings, 755 S.W.2d 874, 879 (Tex.

App.--Houston [14th Dist.] 1988, writ denied). Jones

cannot prevail because he has provided no evidence of

legal malice or of special damages.

HN6 Legal malice is defined as wrongful conduct that is

intentional and without just cause or excuse. Continental

Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452, 40

Tex. Sup. Ct. J. 172 (Tex. 1996). Because the Rabson

defendants had a lawful writ of execution and the

property records contained Gladys Goffney's deed to

the Wayne Street property, the inclusion [*13] of the

property in the constable's sale, although incorrect, was

based on reasonable cause. Thus, there is no evidence

of legal malice. Moreover, although Jones proved the

loss of a specific sale, he did not offer any evidence of

special damages. HN7 A plaintiff may recover the

amount he would have realized from the lost sale minus

the amount for which he could have sold the land at the

time of trial with the cloud removed. A.H. Belo Corp. v.

Sanders, 632 S.W.2d 145, 146, 25 Tex. Sup. Ct. J. 257

(Tex. 1982). The time of trial here was March 26,

2001--the date of the summary judgment hearing. See

Goswami, 751 S.W.2d at 490. Although Jones provided

evidence that he was unable to complete the sale for $

25,000, he provided no evidence of the market value of

the property at the time of trial. Without such evidence,

the trial court could not calculate special damages,

even if it determined the Rabson defendants had

slandered Jones's title. Accordingly, we hold the trial

court did not err in rendering summary judgment on this

claim.

We overrule issue three.

Attorney's Fees

In issue six, Jones contends that he is entitled to

attorney's fees because his suit is one for [*14]

declaratory judgment. The Rabson defendants argue

that the true nature of the suit is to remove a cloud on

Jones's title, thus attorney's fees are not recoverable.

Because we have overruled all of appellant's other

2003 Tex. App. LEXIS 1443, *10

Page 5 of 6
issues on appeal, the issue of attorney's fees is moot.

We affirm the trial court's judgment.

Evelyn V. Keyes, Justice

2003 Tex. App. LEXIS 1443, *14

Page 6 of 6
| | Caution

As of: April 7, 2015 5:51 PM EDT

Lefton v. Griffith

Court of Appeals of Texas, Fourth District, San Antonio

March 31, 2004, Delivered ; March 31, 2004, Filed

No. 04-03-00402-CV

Reporter

136 S.W.3d 271; 2004 Tex. App. LEXIS 2812

David LEFTON and Arthur Lefton, Appellants v. Dixie

GRIFFITH d/b/a Discount Furniture Warehouse,

Appellee

Subsequent History: Released for Publication July 2,

2004.

Prior History: [**1] From the 225th Judicial District

Court, Bexar County, Texas. Trial Court No.

2002-CI-15103. Honorable Pat Boone, Judge Presiding.

Disposition: Affirmed in part, reversed and remanded

in part.

Core Terms

damages, mental anguish, trial court, lost profits,

inventory, default judgment, economic damages,

attorney's fees, award of damages, reputation, market

value, provides, allegations, distress, notice, legal

insufficiency, notice of appeal, furniture, issues, fails,

days

Case Summary

Procedural Posture

Appellant lessors challenged a decision from the 225th

Judicial District Court in Bexar County (Texas), which

entered a default judgment in favor of appellee lessee in

an action alleging breach of contract, tortious

interference, fraud, intentional infliction of emotional

distress, and a violation of the Texas Deceptive Trade

Practices Act.

Overview

The lessee was unable to pay rent. The lessors agreed

to give her until a certain date to vacate the premises.

However, they later refused to grant access to the

rented property. She filed an action against the lessors,

who failed to answer the complaint. After a default

judgment was entered in the case, the lessors sought

review. On appeal, the court determined that there was

insufficient evidence to support the award of economic

damages. The lessee, as the owner of the property, was

permitted to testify as to its market value. However, the

evidence was conclusory as to the value of the inventory

and the home. The lessee did not show how she came

to a conclusion regarding loss. Further, she failed to

show that she had been denied a loan or that a higher

interest rate was charged. She failed to show lost profits

with reasonable certainty. Her allegations did not rise to

the level of compensable mental anguish. However, the

award of attorney fees was upheld because it was

presumed that the trial court took judicial notice of the

usual and customary attorney fees. Finally, the court

overruled the lessors' argument that the return of service

was invalid.

Outcome

The court reversed the trial court's award of economic

damages and mental anguish. The case was remanded

for a new trial on those issues. The court affirmed the

award of attorney fees.

LexisNexis® Headnotes

Civil Procedure > Appeals > Notice of Appeal

HN1 See Tex. R. App. P. 30.

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > General Overview

Civil Procedure > Appeals > Notice of Appeal

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN3 Tex. R. App. P. 25.1(d)(7)(A) requires that a notice

of restricted appeal must state that the appellant is a
party affected by the trial court's judgment but did not

participate--either in person or through counsel--in the

hearing that resulted in the judgment complained of.

Tex. R. App. P. 25.1(d)(7)(A). Rule 25.1(d)(7)(B) further

requires that a notice of restricted appeal must state

that the appellant did not timely file either a

postjudgment motion, request for findings of fact and

conclusions of law, or notice of appeal. Tex. R. App. P.

25.1(d)(7)(B).

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN2 Where a party fails to timely file an answer, the

facts alleged in a complaint are deemed admitted,

except the amount of damages.

Civil Procedure > Appeals > Appellate Briefs

HN4 A reply brief is limited in scope to responding to

matters in an appellee's brief. Tex. R. App. P. 38.3.

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

Evidence > Burdens of Proof > General Overview

HN5 An appellant attacking the legal sufficiency of an

adverse finding on which he did not have the burden of

proof must demonstrate that there is no evidence to

support the adverse finding. The reviewing court must

consider all evidence in a light most favorable to the

party in whose favor the verdict has been rendered and

indulge every reasonable inference from the evidence

in such party's favor. If more than a scintilla of evidence

exists to support the finding, the no-evidence challenge

fails.

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

Evidence > Burdens of Proof > General Overview

HN6 A party attacking the factual sufficiency of an

adverse finding on an issue on which the other party

had the burden of proof must demonstrate that there is

insufficient evidence to support the adverse finding. In

reviewing an insufficiency of the evidence challenge,

the court must first consider, weigh, and examine all of

the evidence which supports and which is contrary to

the jury's determination. Having done so, the court

should set aside the verdict only if the evidence that

supports the jury finding is so weak as to be clearly

wrong and manifestly unjust.

Evidence > ... > Testimony > Lay Witnesses > General

Overview

Real Property Law > Property Valuations

HN7 An owner is qualified to testify about the market

value of his property.

Civil Procedure > Remedies > Damages > General

Overview

HN8 Documents that represent merely conclusory

allegations will not support an amount awarded for

unliquidated damages.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Remedies > Damages > General

Overview

HN9 There can be no recovery for damages which are

speculative or conjectural.

Civil Procedure > Remedies > Damages > General

Overview

HN10 Texas law provides that in order to recover actual

damages for loss of credit reputation, a plaintiff must

first show that a loan was actually denied or a higher

interest rate charged.

Contracts Law > ... > Measurement of Damages >

Foreseeable Damages > General Overview

HN11 Recovery for lost profits does not require that the

loss be susceptible to exact calculation. However, the

injured party must do more than show that it suffered

some lost profits. The loss amount must be shown by

competent evidence with reasonable certainty. This is a

fact-intensive determination. At a minimum, opinions of

lost-profit estimates must be based on objective facts,

figures, or data from which the lost-profits amount may

be ascertained. Although supporting documentation

may affect the weight of the evidence, it is not necessary

to produce in court the documents supporting the

opinions or estimates.

136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1

Page 2 of 9
Contracts Law > ... > Measurement of Damages >

Foreseeable Damages > General Overview

HN12 The bare assertion that contracts were lost does

not demonstrate a reasonably certain objective

determination of lost profits.

Torts > ... > Types of Losses > Pain & Suffering > General

Overview

Torts > ... > Pain & Suffering > Emotional Distress > General

Overview

Torts > ... > Pain & Suffering > Emotional Distress >

Evidence

HN13 Mental anguish damages are appropriate when

there is either direct evidence of the nature, duration,

and severity of plaintiffs' mental anguish, thus

establishing a substantial disruption in the plaintiffs'

daily routine, or other evidence of a high degree of

mental pain and distress that is more than mere worry,

anxiety, vexation, or anger. The absence of evidence of

the nature, duration, and severity of mental anguish,

particularly when it can be readily supplied or procured

by the plaintiff, justifies close judicial scrutiny of other

evidence offered on this element of damages.

Civil Procedure > ... > Jury Trials > Jury Instructions >

General Overview

Torts > ... > Types of Losses > Pain & Suffering > General

Overview

Torts > ... > Pain & Suffering > Emotional Distress > General

Overview

HN14 Texas law provides that not only must there be

evidence of the existence of compensable mental

anguish, there must also be some evidence to justify

the amount awarded. While the impossibility of any

exact evaluation of mental anguish requires that juries

be given a measure of discretion in finding damages,

that discretion is limited. Juries cannot simply pick a

number and put it in the blank. They must find an

amount that, in the standard language of the jury charge,

would fairly and reasonably compensate for the loss.

Reasonable compensation is no easier to determine

than reasonable behavior--often it may be harder--but

the law requires factfinders to determine both.

Civil Procedure > Remedies > Costs & Attorney Fees >

General Overview

Evidence > Judicial Notice > General Overview

HN15 See Tex. Civ. Prac. & Rem. Code Ann. § 38.004(1)

(1997).

Civil Procedure > Remedies > Costs & Attorney Fees >

General Overview

Evidence > Inferences & Presumptions > General

Overview

Evidence > Judicial Notice > General Overview

HN16 Even if a trial court did not state that it was taking

judicial notice of attorney fees, an appellate court may

presume that the trial court did so.

Civil Procedure > ... > Service of Process > Proof of

Service > General Overview

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Governments > Courts > Clerks of Court

HN17 See Tex. R. Civ. P. 107.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Remedies > Damages > General

Overview

Civil Procedure > Appeals > Remands

Real Property Law > ... > Remedies > Damages > General

Overview

Torts > ... > Pain & Suffering > Emotional Distress > General

Overview

HN18 When damages awarded in a default judgment

after an uncontested hearing are supported by either

legally or factually insufficient evidence, an appellate

court must remand the case for a new trial on those

damage issues.

Counsel: For Appellant: Ryan G. Anderson, David L.

Hanna, Kathy H. Kang, William H. Ford, Ball & Weed,

P.C., San Antonio, TX.

136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1

Page 3 of 9
For Appellee: N. Mark Ralls, Robert A. Ewert, Gonzales

Hoblit Ferguson L.L.P., San Antonio, TX.

Judges: Opinion by: Karen Angelini, Justice. Sitting:

Alma L. Lopez, Chief Justice, Karen Angelini, Justice,

Sandee Byran Marion, Justice.

Opinion by: Karen Angelini

Opinion

[*273] David and Arthur Lefton appeal a default

judgment granted in favor of Dixie Griffith. We affirm the

judgment of the trial court in part and reverse and

remand the judgment of the trial court in part.

BACKGROUND

Dixie Griffith leased a property owned by David and

Arthur Lefton for use as a furniture store. According to

Griffith, she was unable to pay her rent. The Leftons

agreed to give her until November 1, 2000, to vacate.

Instead of keeping their promise, [*274] however, they

changed the locks on October 20, 2000. For eight days,

they refused to give her access to the property. She was

allowed access to the property on October 28, 2000, for

two weekend days. Because of the Leftons' actions,

Griffith alleges, she was forced her to sell the inventory

of her furniture business at an extreme loss.Additionally,

she was forced to sell her home to pay [**2] her

creditors. She also suffered damage to credit reputation,

lost profits, and mental anguish.

Griffith sued the Leftons for breach of contract, tortious

interference, fraud, intentional infliction of emotional

distress, and violation of the Deceptive Trade Practices

Act. When the Leftons failed to answer the suit, Griffith

moved for default judgment. The trial court granted

default judgment in favor of Griffith on her DTPA claim,

awarding her $ 350,000 in economic damages, $

700,000 in trebled economic damages, $ 290,000 in

mental anguish damages, $ 580,000 in trebled mental

anguish damages, and $ 2,000 in attorney fees.

The Leftons filed a restricted appeal under Texas Rule

of Appellate Procedure 30. See TEX. R. APP. P. 30 HN1

("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)."). 1 HN2

Because the Leftons failed to timely file an answer, the

facts alleged in Griffith's [**3] petition are deemed

admitted, except the amount of damages. Tex.

Commerce Bank, N. A. v. New, 3 S.W.3d 515, 516, 42

Tex. Sup. Ct. J. 1175 (Tex. 1999). The Leftons present

the following issues for review:

(1) Did Griffith present legally and factually sufficient

evidence to support the award of damages?

(2) Did Griffith show proof of service?

[**4] In their reply brief, the Leftons bring up two

additional issues: first, they allege that Griffith cannot

recover because she fails to establish that the Leftons

caused the damages awarded; second, they allege that

Griffith cannot recover because her alleged facts do not

constitute a cause of action under the DTPA. HN4 A

reply brief is limited in scope to responding to matters in

an appellee's brief. TEX. R. APP. P. 38.3. Therefore,

because the Leftons failed to bring up these issues in

their original brief, they are not properly before this

court. Sunbeam Envtl. Servs., Inc. v. Tex. Workers'

Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.

App.--Austin 2002, no pet.).

Even if these issues were properly before the court,

however, because the Leftons failed to timely file an

answer, the facts alleged in Griffith's petition are deemed

admitted, except the amount of damages. New, 3

S.W.3d at 516. In her petition, [*275] Griffith alleges

that the Leftons' actions "were a producing cause of

damages to Plaintiff." She further alleges a DTPA cause

of action by stating that "Defendants engaged in

1

Texas Rule of Appellate Procedure 25.1(d)(7)(A) HN3 requires that a notice of restricted appeal must "state that the

appellant is a party affected by the trial court's judgment but did not participate--either in person or through counsel--in the

hearing that resulted in the judgment complained of." TEX. R. APP. P. 25.1(d)(7)(A). Texas Rule of Appellate Procedure

25.1(d)(7)(B) further requires that a notice of restricted appeal must "state that the appellant did not timely file either a

postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal." TEX. R. APP. P. 25.1(d)(7)(B).

Griffith argues that the Leftons failed to properly perfect their appeal because their notice of appeal fails to contain these

statements. We have since granted leave, however, for the Leftons to so amend their notice of appeal, and they have done so.

See TEX. R. APP. P. 25.1(f) (allowing notice to be amended "on leave of the appellate court"). Accordingly, we overrule this

issue on appeal.

136 S.W.3d 271, *271; 2004 Tex. App. LEXIS 2812, **1

Page 4 of 9
unconscionable conduct as defined in § 17.50 of the

Texas Business & Commerce Code. [**5] " Thus,

because the Leftons alleged causation and a DTPA

claim, and because these allegations are admitted, the

Leftons' argument is without merit.

DISCUSSION

I. Legal and Factual Sufficiency

The Leftons contend that Griffith failed to present legally

and factually sufficient evidence of damages.

HN5 An appellant attacking the legal sufficiency of an

adverse finding on which he did not have the burden of

proof must demonstrate that there is no evidence to

support the adverse finding. Croucher v. Croucher, 660

S.W.2d 55, 58, 27 Tex. Sup. Ct. J. 59 (Tex. 1983). The

reviewing court must consider all evidence in a light

most favorable to the party in whose favor the verdict

has been rendered and indulge every reasonable

inference from the evidence in such party's favor. Harbin

v. Seale, 461 S.W.2d 591, 592, 14 Tex. Sup. Ct. J. 128

(Tex. 1970). If more than a scintilla of evidence exists to

support the finding, the no-evidence challenge fails.

Formosa Plastics Corp. USA v. Presidio Eng'rs, 960

S.W.2d 41, 48, 41 Tex. Sup. Ct. J. 289 (Tex. 1998).

HN6 A party attacking the factual sufficiency of an

adverse finding on an issue on which the other party

had the burden of proof must demonstrate that there

[**6] is insufficient evidence to support the adverse

finding. Hickey v. Couchman, 797 S.W.2d 103, 109

(Tex. App.--Corpus Christi 1990, writ denied). In

reviewing an insufficiency of the evidence challenge,

the court must first consider, weigh, and examine all of

the evidence which supports and which is contrary to

the jury's determination. Plas-Tex, Inc. v. U.S. Steel

Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329

(Tex. 1989) (per curiam). Having done so, the court

should set aside the verdict only if the evidence that

supports the jury finding is so weak as to be clearly

wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d

175, 176, 29 Tex. Sup. Ct. J. 214 (Tex. 1986) (per

curiam).

A. Was Affidavit in Evidence?

The record contains an affidavit by Griffith describing

her damages. This affidavit is on file in the clerk's record

and appears to have been filed after the entry of default

judgment. The Leftons argue that because the affidavit

was (a) not filed with the court at the time of the hearing,

and (b) not admitted into evidence, we cannot know that

the trial court ever considered it.

Griffith responds by pointing out that the trial court

clearly references an affidavit [**7] during the hearing.

The Leftons counter, however, that while the record

reflects that the trial court referred to an affidavit at the

default judgment hearing, there is no evidence that the

trial court was referring to Griffith's affidavit.

It is clear that the trial court had Griffith's affidavit before

it. At the hearing, Griffith's lawyer refers to the affidavit

several times. Additionally, the trial court itself indicates

that it had Griffith's affidavit before it:

THE COURT: Where is [the plaintiff]?

COUNSEL: Between Florida and Dallas.

THE COURT: Florida and--when did she leave?

COUNSEL: I am unaware of that answer.

THE COURT: Did she leave last week, or when did she

leave?

[*276] COUNSEL: Honestly, Your Honor, I don't know.

THE COURT: What's your client's name?

COUNSEL: Dixie Griffith.

THE COURT: And you don't know--she's between

Florida and where?

COUNSEL: Dallas.

THE COURT: And you don't know when she left.

COUNSEL: No, I'm not sure of that.

THE COURT: Huh?

COUNSEL: I am not sure of that, no.

THE COURT: You know why this puzzles me? Because

this was--your client's affidavit was notarized today.

COUNSEL: That's correct. I have been in touch with her

over [**8] the phone, and she faxed me her signature on

that affidavit after we [had] discussed it, and I had a

faxed copy to her.

136 S.W.3d 271, *275; 2004 Tex. App. LEXIS 2812, **4

Page 5 of 9
The trial court's statement, "This was--your client's

affidavit was notarized today," indicates that the trial

judge had an affidavit of Griffith's before him and was

looking at it as he made this statement. Furthermore,

because Griffith's affidavit was notarized the same day

as the hearing took place, this statement confirms that it

was Griffith's affidavit that was before the trial court.

Because it is clear the trial court considered Griffith's

affidavit, we overrule this issue on appeal. See New, 3

S.W.3d at 517 ("The trial court did not err when it

considered the affidavits in rendering its default

judgment.").

B. Affidavit Testimony

The Leftons next argue that Griffith's affidavit does not

provide legally or factually sufficient evidence of

economic damages, mental anguish damages, or

attorney fees.

1. Economic Damages

The trial court awarded Griffith $ 350,000 in economic

damages. In her affidavit, Griffith describes four types of

economic damages: (1) the loss resulting from the sale

of her inventory, which she [**9] values at $ 290,000; (2)

the loss resulting from the sale of her home, which she

values at $ 60,000; (3) the harm to her credit rating,

which she values at $ 250,000; and (4) lost profits,

which she values at $ 175,000. The Leftons argue that

Griffith's testimony describing these four types of

economic damages is legally and factually insufficient.

a. Losses from Sale of Inventory and Sale of Home

The Leftons first argue that Griffith's testimony

describing the alleged losses from the sale of her

inventory and home is legally and factually insufficient.

Griffith's affidavit provides:

My inventory at the time of the forced sale was worth $

300,000. I was forced to sell my entire inventory for only

$ 10,000 to the only company that offered me a bid.

Therefore, I lost $ 290,000 because the Defendants

broke their promise and locked me out of the Premises

and forced me to sell my inventory.

. . . .

Moreover, because the failure of my business deprived

me of my only source of income, I was unable to pay my

personal creditors. As a result, I was soon forced to sell

my house, at a greatly reduced price, in an attempt to

pay my business suppliers and personal creditors.

Because [**10] the Defendants' actions placed me in a

position where I needed cash quickly in order to satisfy

some of my creditors, I was forced to sell my personal

residence as quickly as possible, which resulted in a

loss of $ 60,000 on the sale of my house.

[*277] Citing Porras v. Craig, 675 S.W.2d 503, 27 Tex.

Sup. Ct. J. 515 (Tex. 1984), the Leftons argue that the

above testimony is incompetent because it fails to refer

to market value. In Porras, a case based on permanent

damage to land, the court reversed an award of

damages where the owner failed to testify to the market

value of his property. Id. 675 S.W.2d at 504. In Porras,

however, "the owner's testimony affirmatively showed

that he referred to personal rather than market value."

Id. 675 S.W.2d at 505. Here, Griffith's testimony does

not affirmatively show that she was referring to personal

rather than market value. Thus, this case is

distinguishable from Porras on this basis. In fact, Porras

affirms the general rule that HN7 "an owner is qualified

to testify about the market value of his property." Id.

Because, therefore, an owner is qualified to testify

about the market value of his property, and because

Griffith's [**11] testimony does not affirmatively show

that she was referring to personal rather than market

value, we overrule this argument on appeal.

The Leftons also argue that the above testimony is

incompetent because it is conclusory. There is no

evidence, they argue, that the inventory Griffith sold for

$ 10,000 was actually worth $ 300,000. We agree. HN8

Documents that represent merely conclusory

allegations will not support an amount awarded for

unliquidated damages. Jones v. Andrews, 873 S.W.2d

102, 107 (Tex. App.--Dallas 1994, no writ). Here,

Griffith's allegations fail to provide a factual basis to

support her conclusion. We do not know, for example,

the type of furniture or even the amount of furniture she

sold. As such, we have no factual basis upon which to

affirm her conclusion. See Brownlee v. Brownlee, 665

S.W.2d 111, 112, 27 Tex. Sup. Ct. J. 259 (Tex. 1984)

(holding that affidavits consisting only of conclusions

are insufficient to raise an issue of fact). Accordingly, we

hold that the evidence of loss from the sale of inventory

is legally insufficient to support an award for damages.

The testimony regarding the sale of her home is equally

conclusory. As the owner of her [**12] home, Griffith is

clearly qualified to testify about the value of it. Porras,

675 S.W.2d at 505. Because, however, she fails to

explain how she arrived at the conclusion that she lost $

60,000 from having to sell her home to pay her creditors,

136 S.W.3d 271, *276; 2004 Tex. App. LEXIS 2812, **8

Page 6 of 9
we have no way of knowing what she based her

conclusion on. Her estimate could be purely speculative.

HN9 "There can be no recovery for damages which are

speculative or conjectural." Roberts v. U.S. Home Corp.,

694 S.W.2d 129, 135 (Tex. App.--San Antonio 1985, no

writ) (reversing a default judgment award for damages

to credit reputation). Accordingly, we hold that the

evidence of loss from the sale of Griffith's home is

legally insufficient to support an award of damages.

b. Damage to Credit Reputation

The Leftons next argue, and Griffith concedes, that

Griffith's testimony regarding her damage to credit

reputation is incompetent. Griffith's affidavit provides:

Further, as a result of the loss of my business, which

was caused by the Defendants, my credit reputation

was ruined because I was unable to pay my bills as they

came due. This injury was a natural, probable, and

foreseeable consequence of the Defendants' [**13]

wrongful conduct. This injury to credit rating has caused

extreme hardship over the past two years and will

continue to cause hardship into the foreseeable future.

I believe that this loss of credit rating has damaged me

in the amount of $ 250,000.

HN10 Texas law provides that in order to recover actual

damages for loss of credit reputation, a plaintiff must

first show that a loan was actually denied or a higher

interest rate [*278] charged. St. Paul Surplus Lines Ins.

Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53, 41 Tex.

Sup. Ct. J. 1357 (Tex. 1998). Here, Griffith failed to

allege any such fact. Again, "there can be no recovery

for damages which are speculative or conjectural."

Roberts, 694 S.W.2d at 135. Accordingly, we hold that

the evidence of damage to credit reputation is legally

insufficient to support an award of damages.

c. Lost Profits

The Leftons also argue that Griffith's testimony

regarding lost profits is incompetent. Griffith's affidavit

provides:

Because I was forced to sell my entire inventory to a

competitor for a fraction of its value, I [had] insufficient

cash to pay my suppliers and other creditors, ruining my

valuable trade relationships. Therefore, [**14] as a

result of Defendants' actions, Discount Furniture

Warehouse went out of business permanently. I have

been in business for eight (8) years and probably would

have been in business for at least five more years,

probably more. I personally earned net profit of

approximately $ 35,000 per year from the business.

Therefore, I believe I am entitled to lost profits equal to

that same income for the next five years, or $ 175,000.

HN11 Recovery for lost profits does not require that the

loss be susceptible to exact calculation. Tex.

Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877

S.W.2d 276, 279, 37 Tex. Sup. Ct. J. 676 (Tex. 1994).

However, the injured party must do more than show that

it suffered some lost profits. Id. The loss amount must

be shown by competent evidence with reasonable

certainty. Szczepanik v. First S. Trust Co., 883 S.W.2d

648, 649, 37 Tex. Sup. Ct. J. 860 (Tex. 1994); Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84, 35

Tex. Sup. Ct. J. 881 (Tex. 1992). This is a fact-intensive

determination. Heine, 835 S.W.2d at 84. At a minimum,

opinions of lost-profit estimates must be based on

objective facts, figures, or data from which the

lost-profits amount may be ascertained. [**15]

Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at

84. Although supporting documentation may affect the

weight of the evidence, it is not necessary to produce in

court the documents supporting the opinions or

estimates. Heine, 835 S.W.2d at 84.

Here, Griffith's affidavit fails to provide a factfinder with

sufficient data to determine her lost profits with

reasonable certainty. Her "bare assertion" that she

expected to make $ 35,000 in profit for the next five

years because she made $ 35,000 in profit for the past

eight years does not demonstrate a reasonably certain

objective determination of lost profits. See Heine, 835

S.W.2d at 85 HN12 ("The bare assertion that contracts

were lost does not demonstrate a reasonably certain

objective determination of lost profits."). In fact, though

she attributes her financial woes to "seasonal

difficulties," the fact that she could not pay her rent

undermines that conclusion. We hold that the evidence

of lost profits is legally insufficient to support an award

of damages.

2. Mental Anguish

The trial court awarded Griffith $ 290,000 in mental

anguish damages. The Leftons argue [**16] that

Griffith's affidavit does not support such an award.

Griffith's affidavit provides:

As a result of Defendants' actions, I had irate customers

calling my home and coming by my house at all hours of

136 S.W.3d 271, *277; 2004 Tex. App. LEXIS 2812, **12

Page 7 of 9
the day and night. I suffered severe emotional distress

and mental anguish as a result of numerous encounters

with angry, frustrated customers whom I was unable to

help. As a result of Defendants' intentionally cruel

actions, I was unable to sleep, was depressed, and

suffered [*279] from anxiety. Because I believe that the

emotional injury I suffered was just as devastating as

the loss of my business inventory, I believe that my

damages for emotional and mental anguish also equal

$ 290,000.

HN13 Mental anguish damages are appropriate when

there is either "direct evidence of the nature, duration,

and severity of [plaintiffs'] mental anguish, thus

establishing a substantial disruption in the plaintiffs'

daily routine," or other evidence of "a high degree of

mental pain and distress" that is "more than mere worry,

anxiety, vexation, or anger." Saenz v. Fid. & Guar. Ins.

Underwriters, 925 S.W.2d 607, 614, 39 Tex. Sup. Ct. J.

743 (Tex. 1996) (citing Parkway Co. v. Woodruff, 901

S.W.2d 434, 444, 38 Tex. Sup. Ct. J. 828 (Tex. 1995)).

[**17] Here, Griffith does not establish the duration of

her anguish. It is not clear how long she "was unable to

sleep, was depressed, and suffered from anxiety."

Because Griffith does not establish "the nature, duration,

and severity of mental anguish," she must show other

evidence of "a high degree of mental pain and distress."

Parkway, 901 S.W.2d at 444. Additionally, "the absence

of [evidence of the nature, duration, and severity of

mental anguish], particularly when it can be readily

supplied or procured by the plaintiff, justifies close

judicial scrutiny of other evidence offered on this element

of damages." Id.

HN14 Texas law also provides:

Not only must there be evidence of the existence of

compensable mental anguish, there must also be some

evidence to justify the amount awarded. . . . While the

impossibility of any exact evaluation of mental anguish

requires that juries be given a measure of discretion in

finding damages, that discretion is limited. Juries cannot

simply pick a number and put it in the blank. They must

find an amount that, in the standard language of the jury

charge, "would fairly and reasonably compensate" for

the loss. . . . Reasonable compensation [**18] is no

easier to determine than reasonable behavior--often it

may be harder--but the law requires factfinders to

determine both.

Saenz, 925 S.W.2d at 614.

Thus, Griffith must show: (1) that she suffered a high

degree of mental pain and distress; and (2) that $

290,000 is a fair and reasonable amount for the mental

anguish she suffered. Here, Griffith's testimony that she

"was unable to sleep, was depressed, and suffered

from anxiety" fails to establish either. Griffith's distress,

while understandable, "does not rise to the level of

compensable mental anguish" as defined by Texas law.

Id. Additionally, there is no evidence that $ 290,000 "is

fair and reasonable compensation" for the amount she

suffered. Id. Accordingly, we hold that the evidence of

mental anguish is legally insufficient to support an award

of damages.

3. Attorney Fees

The trial court awarded Griffith $ 2,000 in attorney fees.

On appeal, the Leftons argue that there is insufficient

evidence of attorney fees because the only reference to

attorney fees in the record is unsworn statements by

counsel during the hearing. The Leftons fail, however,

to cite authority for this proposition. [**19] TEX. R. APP.

P. 38.1(h). Additionally, the Texas Civil Practices and

Remedies Code provides: HN15 "The court may take

judicial notice of the usual and customary attorney's

fees and of the contents of the case file without receiving

further evidence in a proceeding before the court." TEX.

CIV. PRAC. & REM. CODE § 38.004(1) (Vernon 1997).

Moreover, HN16 "even if the trial court did not state that

it was taking such judicial notice, [the appellate [*280]

court] may presume that the trial court did so." Inwood

Dad's Club, Inc. v. Aldine Indep. Sch. Dist., 882 S.W.2d

532, 542 (Tex. App.--Houston [1st Dist.] 1994, no writ).

Here, the proceeding was before the court. Additionally,

although the trial court did not state that it was taking

judicial notice, we may presume that it did. Id.

Accordingly, we hold that the evidence of attorney fees

is legally and factually sufficient to support the award.

II. Return of Service

The Leftons argue that the default judgment as to David

Lefton must be set aside because "although the return

[of service] bears a file stamp indicating that it was filed

on November 14, 2002, the file stamp has not been

[**20] signed by a representative of the District Clerk's

Office." The Leftons fail to cite, however, any case law

for the proposition that a file stamp is not valid if it is not

signed by a representative of the district clerk's office.

Accordingly, the Leftons failed to properly brief this

issue. TEX. R. APP. P. 38.1(h).

Additionally, their argument is without merit. Here, the

stamp shows that David Lefton was served on

136 S.W.3d 271, *278; 2004 Tex. App. LEXIS 2812, **16

Page 8 of 9
November 14, 2002. The default judgment was granted

November 25, 2002. Accordingly, the return of service

was on file for ten days before the default judgment was

granted. See TEX. R. CIV. P. 107 HN17 ("No default

judgment shall be granted in any cause until the citation

. . . with proof of service as provided by this rule . . . shall

have been on file with the clerk of the court ten days,

exclusive of the day of filing and the day of judgment.").

Because the Leftons provide no authority for their

argument, and because the return of service was on file

for ten days before the default judgment was granted,

we overrule this issue on appeal.

CONCLUSION

Because there is insufficient evidence to support an

award of damages for Griffith's loss from the sale of her

[**21] inventory, loss from the sale of her home, lost

profits, and damage to credit reputation, we reverse the

trial court's award for economic damages and remand

this cause for a new trial on economic damages. See

Heine, 835 S.W.2d at 86 (holding that HN18 when

damages awarded in a default judgment after an

uncontested hearing are supported by either legally or

factually insufficient evidence, we must remand the

case for a new trial on those damage issues); Jackson

v. Gutierrez, 77 S.W.3d 898, 904 (Tex. App.--Houston

[14th Dist.] 2002, no pet.) (reversing and remanding the

trial court's awards for medical expenses, mental

anguish, pain and suffering, and automobile repair, and

affirming the award for lost wages).

Because there is insufficient evidence to support an

award of damages for Griffith's mental anguish, we

reverse the trial court's award for mental anguish and

remand the cause for a new trial on mental anguish

damages. See Heine, 835 S.W.2d at 86.

We affirm the trial court's award for attorney fees.

Karen Angelini, Justice

136 S.W.3d 271, *280; 2004 Tex. App. LEXIS 2812, **20

Page 9 of 9
Page 1 

Caution 

As of: Mar 30, 2015 

DOUGLAS LEHMANN AND VIRGINIA LEHMANN, PETITIONERS v. 

HAR-CON CORPORATION, RESPONDENT; MELVIN G. HARRIS AND HELENA M. HARRIS, PETITIONERS v. HARBOUR TITLE COMPANY, RESPONDENT 

NO. 99-0406 - consolidated with - NO. 99-0461 

SUPREME COURT OF TEXAS 

39 S.W.3d 191; 2001 Tex. LEXIS 6; 44 Tex. Sup. J. 364

January 26, 2000, Argued 

February 1, 2001, Delivered 

NOTICE: 

 [**1] 

PRIOR HISTORY: ON PETITIONS FOR REVIEW FROM THE COURT OF APPEALS FOR THE 

FOURTEENTH DISTRICT OF TEXAS. 

DISPOSITION: Judgments reversed, cases remanded. 

JUDGES: JUSTICE HECHT delivered the opinion of 

the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE OWEN, JUSTICE ABBOTT, and JUSTICE 

O'NEILL joined. JUSTICE BAKER filed a concurring 

opinion in which JUSTICE ENOCH joined, except for 

Part IV and the discussion of Inglish and Bandera, and in 

which JUSTICE HANKINSON joined, except for Part 

IV. 

OPINION BY: Nathan L. Hecht 

OPINION 

 [*192] In these two consolidated cases we revisit

the persistent problem of determining when a judgment 

rendered without a conventional trial on the merits is 

final for purposes of appeal. We consider only cases in 

which one final and appealable judgment can be rendered and not cases, like some probate and receivership 

proceedings, in which multiple judgments final for purposes of appeal can be rendered on certain discrete issues. 1

 And we consider a judgment's finality only for 

purposes of appeal and not for other purposes, such as 

issue and claim preclusion. 2 In Mafrige v. Ross, 

3

 we 

held that a summary judgment [**2] is final if it contains language purporting to dispose of all claims and 

parties. We gave as one example of such language what 

we have called a "Mother Hubbard" clause 4 -- a recitation that all relief not expressly granted is denied. 5

 Since 

then, the routine inclusion of this general statement in 

otherwise plainly interlocutory orders and its ambiguity 

in many contexts have rendered it inapt for determining 

finality when there has not been a conventional trial. We 

no longer believe that a Mother Hubbard clause in an 

order or in a judgment issued without a full trial can be 

taken to indicate finality. We therefore hold that in cases 

in which only one final and appealable judgment can be 

rendered, a judgment issued without a conventional trial 

is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the 

court, regardless of its language, or it states with unmistakable clarity that it is a final judgment [*193] as to 

all claims and all parties. In the two cases before us, the 

court of appeals concluded that judgments that do not 

meet this test were final and dismissed the appeals as 

having been untimely perfected. 6

 We reverse and [**3] 

remand for consideration of the merits of the appeals. 
Page 2 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

1 See Crowson v. Wakeham, 897 S.W.2d 779, 

783 (Tex. 1995) (involving probate proceedings); 

Huston v. Federal Deposit Ins. Corp., 800 S.W.2d 

845, 847 (Tex. 1990) (involving receivership 

proceedings). 

2 See Street v. Second Court of Appeals, 756 

S.W.2d 299, 301 (Tex. 1988). 

3 866 S.W.2d 590 (Tex. 1993). 

4 Teer v. Duddlesten, 664 S.W.2d 702, 704 

(Tex. 1984). 

5 Mafrige, 866 S.W.2d 590 n.1. 

6 Lehmann v. Har-Con-Corp., S.W.2d , 

1998 Tex. App. LEXIS 4657 (Tex. App.--Houston 

[14th Dist.] 1998), 988 S.W.2d 415 (1999) (op. 

on reh'g); Harris v. Harbour Title Co., 

S.W.2d , 1999 Tex. App. LEXIS 2708 (Tex. 

App.--Houston [14th Dist.] 1999). 

I

Lehmann v. Har-Con Corp.

Douglas and Virginia Lehmann sued the University 

of St. Thomas and Har-Con Corp. in the district court in 

Harris County to recover damages for injuries Douglas 

suffered in a construction [**4] accident. The University cross-claimed against Har-Con for indemnity. The 

Lehmanns settled with Har-Con and executed a release, 

agreeing in part to indemnify Har-Con against certain 

claims which had been or could be asserted by or 

through them. Virginia then filed an amended petition on 

behalf of her minor son against both defendants, claiming damages for loss of parental consortium because of 

his father's injuries. In response, Har-Con filed a counterclaim against Virginia and a third-party petition 

against Douglas, seeking indemnity from them under the 

terms of their prior release. 

The Lehmanns and Har-Con all moved for summary 

judgment on Har-Con's indemnity claims. The district 

court denied the Lehmanns' motion and granted 

Har-Con's motion. The court's order granting Har-Con's 

motion stated in full: 

[caption] 

ORDER 

On this 12 day of March, 1998 came on to be considered the Motion for Summary Judgment of 

HAR-CON CORPORATION. After considering the motion, the response, the summary judgment evidence and 

the argument of counsel, the Court is of the opinion that 

the motion should be in all things granted. It is therefore, 

ORDERED, ADJUDGED AND DECREED that the 

Motion [**5] for Summary Judgment by HAR-CON 

CORPORATION be and it is hereby GRANTED. 

All relief not expressly granted herein is denied. 

Signed this the 12 day of March, 1998 

s/ 

JUDGE PRESIDING 

[s/ Attorneys for Har-Con Corporation] 

The order did not reference Virginia's claims on behalf of her son against Har-Con, although it would appear that Har-Con's summary judgment on its indemnity 

claim would effectively bar recovery for Virginia's son. 

The order also did not reference Virginia's son's claims 

against the University, which would not appear to be 

affected by Har-Con's summary judgment. The order 

contained a "Mother Hubbard" clause stating that "all 

relief not expressly granted herein is denied." 

The district clerk advised the Lehmanns by postcard

that an interlocutory summary judgment order had issued. The record does not reflect whether the parties received a copy of the actual order after it was signed. The 

Lehmanns tell us that the practice of the district clerk in 

Harris County is not to send copies of orders to the parties but to give parties notice by postcard when orders 

are signed. The notice does not completely describe the 

content of the order. 

The Lehmanns [**6] appear to have believed that 

the summary judgment order was interlocutory because 

they moved to sever it and Har-Con's claims into a separate action, ostensibly to make the summary judgment 

final. The court granted the motion to sever on the twenty-fifth day after the summary judgment order was 

signed. Twenty-eight days after the severance [*194] 

order was signed, the Lehmanns noticed their appeal

from the summary judgment order. 

If the summary judgment was not final until the 

severance order was signed, then the Lehmanns' appeal 

was timely. But the court of appeals held that the summary judgment order was final when it issued because of 

the Mother Hubbard clause and that the order was not 

modified by the severance so as to restart the time for 

perfecting appeal. 7

 Because the Lehmanns did not perfect appeal within thirty days of the signing of the order 

as prescribed by the rules of appellate procedure, 8

 the 

court dismissed the appeal for want of jurisdiction. In 

holding that the summary judgment order was final, the 

court followed our decision in Mafrige, although the 

court expressed concerns that the inclusion of a Mother 

Hubbard clause in an otherwise plainly interlocutory 

order [**7] should not make the order final. 

7 S.W.2d , 1998 Tex. App. LEXIS 4657; 

988 S.W.2d 415 (op. on reh'g). 
Page 3 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

8 See TEX. R. APP. P. 26.1 (appellate time 

limits). 

We granted the Lehmanns' petition for review and 

consolidated it for argument and decision with Harris v. 

Harbour Title Co. 

9

9 43 Tex. Sup. J. 94, 96 (Nov. 12, 1999). 

Harris v. Harbour Title Co. 

Melvin and Helena Harris sued five defendants -- 

Greenfield Financial Corp. and Larry J. Greenfield ("the 

Greenfield defendants), Tim Rice and Rice Development, Inc. ("the Rice defendants"), and Harbour Title Co. 

-- in the district court in Harris County on 

breach-of-contract and tort claims arising from a conveyance of real property. The court granted an interlocutory default judgment against Tim Rice on liability only, 

leaving for later a determination of the [**8] damages 

to be assessed against him. The Harrises nonsuited their 

claims against the Greenfield defendants. The fifth defendant, Harbour Title Co., moved for summary judgment, which the court granted with the following order: 

[caption] 

Order Granting Harbour Title Company's 

Motion for Summary Judgment 

On August 28, 1998, came on to be heard the Motion for Summary Judgment of one of the defendants,

Harbour Title Company, and the Court having considered the Motion, together with any response, and the 

supplemental briefing filed by the parties to date is of the 

opinion that said Motion is with merit and should be 

granted. It is therefore 

ORDERED that defendant Harbour Title Company's 

Motion for Summary Judgment is in all things granted; it 

is further 

ORDERED that the Plaintiffs, Melvin G. Harris and 

Helena M. Harris take nothing as to any of their claims 

against Harbour Title Company. 

All relief requested and not herein granted is denied. 

SIGNED this 15 day of October 1998. 

s/ 

JUDGE PRESIDING 

APPROVED AND ENTRY REQUESTED: 

[s/ Attorneys for Harbour Title Company] 

Although the order did not reference the Harrises' 

pending claims against the Rice [**9] defendants, it 

nevertheless contained a Mother Hubbard clause stating 

that "all relief requested and not herein granted is denied." 

The Harrises assert that they received notice of the 

order by a postcard that described the order as an interlocutory summary judgment, but the postcard is not in 

our record. The record does not reflect whether the parties obtained a copy of the order after it was signed. It 

appears that the district clerk followed her usual procedure of notifying the parties by [*195] postcard in lieu 

of providing copies of the order. 

The district court apparently did not consider the 

summary judgment order to be final; forty- six days after 

it was signed, the court generated a form order setting the 

case for trial the next year. The Harrises, too, appear to 

have believed the summary judgment to be interlocutory; 

two weeks after the order issued setting the case for trial, 

the Harrises obtained what was captioned a "Final Default Judgment" against the Rice defendants. Twenty-five days later the Harrises noticed their appeal from 

Harbour Title's summary judgment. 

If Harbour Title's summary judgment did not dispose of the Harrises' claims against the Rice defendants, 

and the [**10] default judgment against those defendants was the final order in the case, then the Harrises' 

appeal was timely. But following Mafrige, as it had done 

in Lehmann, the court of appeals concluded that the 

summary judgment order was final and therefore dismissed the appeal as not having been timely perfected. 

We granted the Harrises' petition for review and consolidated it with Lehmann for argument and decision. 10

10 43 Tex. Sup. J. 94, 96 (Nov. 12, 1999). 

II 

A

Though its origins are obscure and its rationale has 

varied over time, 11 the general rule, with a few mostly 

statutory exceptions, is that an appeal may be taken only 

from a final judgment. 12 A judgment is final for purposes 

of appeal if it disposes of all pending parties and claims 

in the record, except as necessary to carry out the decree. 

13 (An order that does not dispose of all pending parties 

and claims may also be final for purposes of appeal in 

some instances, such as orders that resolve certain discrete [**11] issues in some probate 14 and receiverships 

15 cases, but we exclude those cases from consideration 

here. Nor do we consider when a judgment may be final 

for purposes other than appeal, such as claim and issue 

preclusion. 16 ) Because the law does not require that a 

final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from 

its language and the record in the case. Since timely perfecting appeal (as well as filing certain post- judgment 
Page 4 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

motions and requests) hangs on a party's making this 

determination correctly, certainty is crucial. 

11 See CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, 

FEDERAL PRACTICE & PROCEDURE §§ 

3906-3907 (1992). 

12 See, e.g., North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); Gulf C. 

& S.F. Ry. v. Fort Worth & N.O. Ry., 68 Tex. 98, 

2 S.W. 199, 200 (Tex. 1886), op. on reh'g, 68 Tex. 

106, 3 S.W. 564 (1887); see TEX. CONST. art. V, 

§ 3-b (direct appeals to the Supreme Court); TEX. 

CIV. PRAC. & REM. CODE §§ 15.003(c) (interlocutory joinder and intervention appeals), 51.012 

(court of appeals jurisdiction), 51.014 (interlocutory appeals); TEX. GOV'T CODE §§ 22.001(c)

(direct appeals), 22.225(d) (interlocutory appeal 

to the Supreme Court). 

 [**12] 

13 See Jack B. Anglin Co., v. Tipps, 842 

S.W.2d 266, 272 (Tex. 1992); Linn v. Arambould, 

55 Tex. 611, 617-18 (1881) (surveying several 

tests for determining when a judgment is final). 

See generally 49 C.J.S. Judgments § 11 (1947); 

46 AM. JUR. 2D Judgments § 200-206 (1994). 

14 Crowson v. Wakeham, 897 S.W.2d 779, 783 

(Tex. 1995). 

15 Huston v. Federal Deposit Ins. Corp., 800 

S.W.2d 845, 847 (Tex. 1990). 

16 See Street v. Second Court of Appeals, 756 

S.W.2d 299, 301 (Tex. 1988). 

From the beginning, however, certainty in determining whether a judgment is final has proved elusive. 

What has vexed courts in this State and elsewhere is this: 

must a final judgment dispose of all parties and claims 

specifically, or may it do so by general language or even 

by inference? If a specific disposition of each party and 

[*196] claim is strictly required, a judgment apparently 

intended by the parties and the trial court to be final and 

appealable may not be. An appeal from such a judgment 

must be dismissed [**13] or at least abated, resulting in 

delay and a waste of the courts' and the parties' resources. More importantly, if a judgment intended to be 

final did not meet the strict requirements, then the case 

would remain open, allowing the possibility of further 

proceedings and appeal years later. On the other hand, if 

a judgment may dispose of all parties and claims by general language or inference, a party or trial court may 

think that a judgment is interlocutory, only to be told 

later by the appellate court after the time for appeal has 

passed that the judgment was final. A party who is uncertain whether a judgment is final must err on the side 

of appealing or risk losing the right to appeal. 

In 1881, after struggling with these problems for 

many years, 17 we attempted to resolve them in the case 

of Linn v. Arambould. 

18 There we stated that a final 

judgment after trial must dispose of the issues "intrinsically, and not inferentially." 19 That is, specificity was 

strictly required. The results of this rule were predictable. 

Appellate courts frequently declared shabbily drafted 

judgments interlocutory even though the trial courts and 

the parties had obviously intended for them to [**14] 

be final. 20 Confused parties were spending time and 

money attempting to appeal from possibly final judgments, only to have the appellate courts dismiss the appeals for want of jurisdiction. 21 As this Court later reflected on Arambould's intrinsic-disposition requirement 

for finality: 

By its application most judgments easily became 

black or white -- final or interlocutory; but all too often 

judgments which were obviously intended to be final

were being held interlocutory because of careless 

draftsmanship. The rule had to be changed to accommodate oversight or carelessness. 22

17 See Hanks v. Thompson, 5 Tex. 6, 8 (1849)

(defining a final judgment as awarding the judicial consequences which the law attaches to the 

facts and determining the subject matter of the 

controversy between the parties); accord West v. 

Bagby, 12 Tex. 34 (1854). See also Fitzgerald v. 

Fitzgerald, 21 Tex. 415 (1858); Hancock v. Metz, 

7 Tex. 177 (1851) (both holding that a judgment 

for the defendant for costs did not constitute a final judgment); Warren v. Shuman, 5 Tex. 441, 

450 (Tex. 1849) (finding that a judgment that 

awards costs without disposing of the subject 

matter of the controversy is not a final judgment).

See generally 31 JEREMY C. WICKER, TEXAS 

PRACTICE, CIVIL TRIAL & APPELLATE 

PROCEDURE § 506, at 289-311 (1985) (chronicling, in depth, the challenges of distinguishing 

between final and interlocutory judgments in 

various contexts beginning in the mid-19th century). 

 [**15] 

18 55 Tex. 611 (1881). 

19 Id. at 619. 

20 See Aldridge, 400 S.W.2d at 895. 

21 See, e.g., East & West Tex. Lumber Co. v. 

Williams, 71 Tex. 444, 9 S.W. 436 (Tex. 1888); 

Hill v. Templeton, 25 S.W. 652 (Tex. Civ. App. 

1894); Mills v. Paul, 4 Tex. Civ. App. 503, 23 

S.W. 395 (Tex. Civ. App. 1893). 

22 Aldridge, 400 S.W.2d at 895. 

In 1896 we altered course. In Rackley v. Fowlkes, 23

the plaintiff had, in a prior suit, sued for title to real 
Page 5 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

property and for rent for the four years the property was 

in the defendant's possession, but at trial he offered no 

evidence of the amount of rent due until after the evidence was closed, and because the offer was late the 

court refused to hear it. The court in that suit rendered 

judgment awarding title to the plaintiff without mentioning his claim for rent. When the plaintiff filed a second 

suit for the rent, the defendant asserted res judicata in 

defense. The trial court rendered judgment for the plaintiff, concluding [**16] that the rent claim had not been 

adjudicated in the prior suit, and the court of civil appeals affirmed. We reversed the judgments of the lower 

courts, not because the rent claim should have been adjudicated [*197] in the first suit, but because it was

adjudicated: 

The proposition seems to be sound in principle and 

well supported by authority that where the pleadings and 

judgment in evidence show that the pleadings upon 

which the trial was had put in issue plaintiff's right to 

recover upon two causes of action, and the judgment

awards him a recovery upon one, but is silent as to the 

other, such judgment is prima facie an adjudication that 

he was not entitled to recover upon such other cause. 

This liberal construction of the judgment against the 

party who sought to recover therein is supported by the 

presumption that the court performed the duty devolved 

upon it upon the submission of the cause by disposing of 

every issue presented by the pleadings so as to render its 

judgment final and conclusive of the litigation, and by 

the further fact that the policy of the law favors the 

speedy settlement of litigation and opposes the harassing 

of the defendant with two suits for the same cause. 

[**17] 24

 

23 89 Tex. 613, 36 S.W. 77, 78 (Tex. 1896). 

24 Rackley, 36 S.W. 77 at 78 (citations omitted). 

Three years later we used the rule stated for purposes of res judicata in Rackley to determine whether a 

judgment was final for purposes of appeal. In Davies v. 

Thomson, 

25 the plaintiffs sued for money and an interest 

in real property as their share of a joint venture. The trial 

court rendered judgment on a jury verdict awarding the 

plaintiffs money without mentioning the claim for an 

interest in real property. We held that the judgment disposed of both claims was therefore final and appealable. 

26

25 92 Tex. 391, 49 S.W. 215 (Tex. 1899). 

26 Davies, 92 Tex. 391, 49 S.W. 215 at 217. 

Neither Rackley nor Davies mentioned Arambould

or attempted to reconcile their results with the rule in that 

case, thereby generating [**18] confusion in the appellate courts over how to determine finality in cases involving cross-claims and counterclaims. Some courts

treated judgments that merely implicitly disposed of all 

claims as final, while other courts required that final 

judgments expressly adjudicate each claim. 27 In 1913, 

the Court resolved the conflict in Trammell v. Rosen, 

28

rejecting the rule stated in Arambould. The plaintiff in 

Trammell sued on a promissory note secured by property 

that the defendant and his wife claimed was their homestead. The couple counterclaimed to establish their

homestead claim and for damages for wrongful sequestration. The trial court instructed a verdict for the plaintiff on his claim and against the defendants on their 

counterclaim. The judgment recited the verdict and 

awarded damages to the plaintiff but did not mention the 

counterclaim. 29 Citing Rackley, the Court concluded that 

the judgment was final, reasoning that by granting the 

plaintiff's claim the trial court implicitly but necessarily 

denied the defendants' counterclaim. 30 Still, the Court 

strongly encouraged courts to expressly address each 

claim and party in final judgments to avoid further confusion: [**19] 

We feel constrained to hold that the judgment of the 

trial court, although irregular and imperfect in form, is 

sufficient to support the appeal. However, we feel impelled to say, also, that we think that, as a matter of practice, and to avoid confusion, every final judgment should 

plainly, explicitly, and specifically dispose of each and 

every party to the cause, and of each and every issue 

therein presented by the pleadings. 31

27 See Trammell v. Rosen, 106 Tex. 132, 157 

S.W. 1161, 1162 (Tex. 1913) (listing the various 

appellate courts subscribing to each school of 

construction). 

28 Id.

29 Trammell, 157 S.W. at 1161. 

30 Trammell, 157 S.W. at 1161-1163. 

31 Trammell, 157 S.W. at 1163. See also Burton Lingo Co. v. First Baptist Church, 222 S.W. 

203, 204 (Tex. Comm'n App. 1920, holding approved) (citing Trammell for support of its presumption that the judgment disposed of a claim). 

 [*198] Two cases decided after Trammell suggest 

that the entire record should be considered in determining [**20] whether a post-trial judgment is final. In 

Hargrove v. Insurance Investment Corp., we held that a 

judgment for the plaintiff was final when "considered as 

a whole in the light of the entire record". 32 Similarly, in 

Ferguson v. Ferguson, we held that a judgment awarding 

the plaintiff recovery on some of her claims while silent 

as to others was final, stating that "in arriving at whether 

or not a judgment is final, the pleadings and evidence 

must also be taken into consideration". 33 Neither case 

should be read to deviate from the presumptive rule of 
Page 6 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

Trammell. We did not hold in either case that the record 

could be used to show that a post-trial judgment final on 

its face was really not final. In two other cases during the 

same time period we did not mention the record in applying Trammell. 

34

32 142 Tex. 111, 176 S.W.2d 744, 746 (Tex. 

1944). 

33 161 Tex. 184, 338 S.W.2d 945, 947 (Tex. 

1960). 

34 Gamble v. Banneyer, 137 Tex. 7, 151 

S.W.2d 586 (Tex. 1941); Vance v. Wilson, 382 

S.W.2d 107 (Tex. 1964) (res judicata). 

 [**21] In 1966, we reaffirmed Rackley, Davies, 

and Trammell in Northeast Independent School District 

v. Aldridge. 

35 The school district sued Aldridge for 

breach of contract, and he asserted in his defense that he 

had contracted only as an agent for his principal. He also 

brought a third-party action against his principal, alleging that the principal was responsible for any damages to 

which the school district might be entitled. The trial 

court granted a partial summary judgment holding Aldridge personally liable to the district and directed that 

the case proceed to trial to determine the amount of 

damages to be awarded. The parties then stipulated to the 

amount of damages, and the trial court rendered judgment for the district against Aldridge based on the stipulation. The judgment did not mention Aldridge's 

third-party action against his principal. The court of civil 

appeals dismissed Aldridge's appeal, holding that the 

trial court's judgment was not final. 36 We held that the 

judgment against Aldridge disposed of the third-party 

action and was final for purposes of appeal. After reviewing the courts' historical difficulties in making finality determinations, we stated [**22] the following rule 

for determining, in most instances, whether judgments in 

which parties and issues made by the pleadings are not 

disposed of in express language are, nevertheless, final 

for appeal purposes. When a judgment, not intrinsically 

interlocutory in character, is rendered and entered in a 

case regularly set for conventional trial on the merits, no 

order for a separate trial of issues having been entered . . 

., it will be presumed for appeal purposes that the Court 

intended to, and did, dispose of all parties legally before 

it and of all issues made by the pleadings between such 

parties. 37

35 400 S.W.2d 893 (Tex. 1966). 

36 Aldridge v. Northeast Indep. Sch. Dist., 392 

S.W.2d 607 (Tex. Civ. App.--San Antonio 1965), 

rev'd and remanded, 400 S.W.2d 893 (Tex. 1966). 

37 400 S.W.2d at 897-898. 

 

We added: "Of course, the problem [of determining 

whether judgments are final] can be eliminated entirely 

by a careful drafting of judgments [**23] to conform to 

the pleadings or by inclusion in judgments of a simple 

statement that all relief not expressly granted is denied." 

38 Inclusion of a catch-all statement -- which we later 

denominated a "Mother Hubbard" clause 39 -- would 

make clear that a post-trial judgment on the merits, presumed to have disposed of all claims, did indeed do so. 

38 Id. at 898. 

39 Teer v. Duddlesten, 664 S.W.2d 702, 704 

(Tex. 1984). 

 [*199] B

The presumption that a judgment rendered after a 

conventional trial on the merits is final and appealable 

has proved fairly workable for nearly a century, but we 

have never thought that it could be applied in other circumstances, as we first explained nearly sixty years ago. 

In Davis v. McCray Refrigerator Sales Corp., 

40 the 

plaintiff sued for the unpaid balance of the purchase 

price of a refrigerator, and the defendant counterclaimed 

for cancellation of the debt and for damages for payments already made and lost merchandise due to improper refrigeration. [**24] The defendant also filed a 

plea in abatement on the grounds that the plaintiff was a 

foreign corporation not licensed to do business in Texas 

and therefore not entitled to sue in state court. The trial 

court deferred ruling on the defendant's plea until after 

the case was tried on the merits. After the jury returned a 

verdict, the trial court rendered judgment both that the 

plaintiff's claim be dismissed and that the plaintiff take 

nothing. 41 The only basis the trial court had for dismissal 

was the defendant's plea in abatement, while the only 

basis for rendering a take-nothing judgment was plaintiff's failure of proof at trial. The judgment did not mention the defendant's counterclaim. The court of civil appeals rejected the defendant's argument that the judgment 

was interlocutory and reversed and rendered judgment 

for the plaintiff. 42 This Court reversed and dismissed the 

appeal. Citing Trammell, the Court acknowledged that 

while a final judgment need not expressly dispose of 

each issue so long as other provisions of the judgment 

necessarily imply that the unmentioned issues have been 

disposed of, a dismissal of the plaintiff's suit did not 

necessarily imply a disposal of [**25] the defendant's 

cross-action. 43 The Court explained: 

If the court had intended to merely sustain the plea 

in abatement and dismiss plaintiff's suit, and had intended to retain the defendant's cross-action for further consideration, it would have entered the very judgment that 

was entered in this case. The mere failure of the judgment to refer to defendant's cross-action was not suffi-
Page 7 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

cient in itself to raise an inference that it was thereby 

intended to dispose of the cross-action. 44 

40 136 Tex. 296, 150 S.W.2d 377 (Tex. 1941). 

41 McCray Refrigerator Sales Corp. v. Davis, 

140 S.W.2d 477, 478 (Tex. Civ. App.--Fort Worth 

1940), rev'd, 136 Tex. 296, 150 S.W.2d 377 (Tex. 

1941). 

42 Id.

43 150 S.W.2d at 378. 

44 Id.

Although the judgment did not "merely" sustain the 

plea in abatement but also decreed that the plaintiff take 

nothing, the inclusion of the dismissal in the judgment as 

the first basis for decision was enough to make [**26] 

Trammell's presumptive finality rule inapplicable. 

Davis may have departed too far from Trammell. 

The trial court's decree following a jury trial on the merits that the plaintiff take nothing without mention of the 

defendant's counterclaim should perhaps have been presumed to deny all relief, despite the alternative ruling 

that the plaintiff's claim should be dismissed. But regardless of Davis's unusual circumstances, the case 

makes the point, which we expressly acknowledged in

Aldridge, that "it will not be presumed that a judgment 

dismissing a plaintiff's suit on nonsuit, plea to the jurisdiction, plea in abatement, for want of prosecution, etc., 

also disposed of the issues in an independent 

cross-action." 45

45 Aldridge, 400 S.W.2d at 897. 

We have since held that "etc." includes default 

judgments and summary judgments. 46 The reason for not 

applying a presumption in any of these circumstances 

[*200] is that the ordinary expectation that supports the 

presumption that a judgment [**27] rendered after a 

conventional trial on the merits will comprehend all 

claims simply does not exist when some form of judgment is rendered without such a trial. On the contrary, it 

is quite possible, perhaps even probable these days in 

cases involving multiple parties and claims, that any 

judgment rendered prior to a full-blown trial is intended 

to dispose of only part of the case. Accordingly, the finality of the judgment must be determined without the 

benefit of any presumption. 

46 See, e.g., Houston Health Clubs, Inc. v. 

First Court of Appeals, 722 S.W.2d 692 (Tex. 

1986), and the cases cited therein. 

A judgment that finally disposes of all remaining 

parties and claims, based on the record in the case, is 

final, regardless of its language. 47 A judgment that actually disposes of every remaining issue in a case is not 

interlocutory merely because it recites that it is partial or 

refers to only some of the parties or claims. Thus, if a 

court has dismissed all of the claims in a case but one, 

[**28] an order determining the last claim is final. 48

This is settled law in Texas, and while there have been 

proposals to change it by rule, proposals that are currently pending consideration by this Court's Advisory 

Committee, we are not inclined to depart from it here. 

The language of an order or judgment cannot make it

interlocutory when, in fact, on the record, it is a final 

disposition of the case. 

47 Farmer v. Ben E. Keith Co., 907 S.W.2d 

495, 496 (Tex. 1995) (per curiam); H. B. Zachry 

Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. 

1963) (per curiam); McEwen v. Harrison, 162 

Tex. 125, 345 S.W.2d 706, 707 (Tex. 1961). 

48 Farmer, 907 S.W.2d at 496; H. B. Zachry 

Co., 364 S.W.2d at 193; McEwen, 345 S.W.2d at 

707. 

But the language of an order or judgment can make 

it final, even though it should have been interlocutory, if 

that language expressly disposes of all claims and all 

parties. It is not enough, [**29] of course, that the 

order or judgment merely use the word "final". The intent to finally dispose of the case must be unequivocally 

expressed in the words of the order itself. But if that intent is clear from the order, then the order is final and 

appealable, even though the record does not provide an 

adequate basis for rendition of judgment. So, for example, if a defendant moves for summary judgment on only 

one of four claims asserted by the plaintiff, but the trial 

court renders judgment that the plaintiff take nothing on 

all claims asserted, the judgment is final -- erroneous, but 

final. 49 A judgment that grants more relief than a party is

entitled to is subject to reversal, but it is not, for that 

reason alone, interlocutory. 50

49 Young v. Hodde, 682 S.W.2d 236 (Tex. 

1984) (per curiam); Chessher v. Southwestern 

Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)

(per curiam). 

50 Continental Airlines, Inc. v. Kiefer, 920 

S.W.2d 274 (Tex. 1995). 

Texas [**30] appellate courts, this Court included, 

have had difficulty determining when a judgment is final 

on its face -- by its own express terms, in other words -- 

even though it should not have been because no sufficient basis for rendering a final judgment was presented. 

In Schlipf v. Exxon Corp., 

51 the plaintiffs sued for gas 

royalties and prejudgment interest, and moved for summary judgment only on the royalties issue. Neither the 

defendant nor an intervenor moved for summary judgment against the plaintiffs. The trial court granted the 
Page 8 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

plaintiffs' motion, awarding the royalties claimed, but 

denied prejudgment interest. The judgment recited: 

 

 [*201] We held that this language conclusively disposed of all parties and issues, as it clearly did, although 

in reaching this conclusion, we reiterated our observation 

in Aldridge that the finality of a judgment would be 

made clear "by inclusion . . . of a simple statement that 

all relief not expressly granted is denied." 53 This observation, appropriate in Aldridge in reference to judgments 

after a conventional trial on the merits, was misleading in 

Schlipf, because the only "relief" properly under consideration when the order issued [**31] was that raised by 

the motion for summary judgment 54 -- the plaintiffs' entitlement to royalties. After a full trial on the merits, the 

statement in a judgment that all relief not requested is 

denied signifies finality; there is no expectation that the 

court tried only part of the case, absent an order for severance or separate trials. But after a motion for partial 

summary judgment, the same statement in a judgment is 

ambiguous. It may refer only to the motion on which the 

trial court is ruling, not to all claims of all parties, and 

not even to other claims of the movant. 

51 644 S.W.2d 453 (Tex. 1982) (per curiam). 

the relief herein granted Plaintiffs, . . . is in satisfaction of all of their claims and causes of action . . . and all 

claims and/or causes of action herein asserted by all parties herein and not herein granted are hereby in all things 

denied and concluded . . . . 52

52 Id. at 454. 

 [**32] 

53 Id.

54 See New York Underwriters Ins. Co. v. 

Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per 

curiam); Young v. Hodde, 682 S.W.2d 236 (Tex. 

1984) (per curiam); Chessher v. Southwestern 

Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)

(per curiam). 

Two years later, in Teer v. Duddlesten, we emphasized that the Aldridge language -- all relief not expressly 

granted is denied -- which we termed for the first time a 

"Mother Hubbard" clause, has no place in partial summary judgments because, by definition, those proceedings do not address all of the facts and issues in a case. 55

A Mother Hubbard clause, we said, could not convert a 

partial summary judgment into a final order. 56 Following 

Teer, most courts of appeals held that a Mother Hubbard

clause could not make final a judgment rendered without 

a full trial, 57 although other courts reached the contrary 

conclusion. 58 

55 Teer v. Duddlesten, 664 S.W.2d 702, 704 

(Tex. 1984). 

 [**33] 

56 Id.

57 E.g., Bethurum v. Holland, 771 S.W.2d 719

(Tex. App.--Amarillo 1989, no writ); Sakser v. 

Fitze, 708 S.W.2d 40, 42 (Tex. App.--Dallas 

1986, no writ) (declaring that a Mother Hubbard 

clause in an order does not convert an intrinsically interlocutory partial summary judgment into a 

final judgment). 

58 E.g., Georgetown Assoc., Ltd. v. Home Fed. 

Sav. & Loan Ass'n, 795 S.W.2d 252, 253 (Tex. 

App.--Houston [14th Dist.] 1990, writ dism'd 

w.o.j.); Hodde v. Young, 672 S.W.2d 45, 47 (Tex. 

App.--Houston [14th Dist.]) (holding that a 

judgment was final and appealable because it 

contained a Mother Hubbard clause), writ ref'd, 

n.r.e., 682 S.W.2d 236 (Tex. 1984) (per curiam) 

(noting that the erroneous rendition of a final 

judgment is not fundamental error). 

We attempted to clarify matters in Mafrige v. Ross. 

59 There, two plaintiffs sued some twelve defendants for 

malicious prosecution, slander, libel, conspiracy, and 

negligence. 60 No party other than the plaintiffs asserted 

any claims. [**34] The defendants, some individually 

and some in groups, filed a total of eight summary judgment motions, some directed against one of the plaintiffs 

and some against both. 61 Only one motion addressed 

both of the plaintiffs and all of the claims asserted; 62

even together, the other seven motions did not address 

both plaintiffs and all claims. 63 The trial court granted all 

eight motions with eight separate orders, one for each 

motion. 64 Each order stated that the [*202] plaintiff or 

plaintiffs, depending on whether the motion had been 

directed at one or both, were to take nothing against the 

movant or movants. 65 Thus, taken together, the eight 

orders provided that both of the plaintiffs were to take 

nothing against all of the defendants. On the plaintiffs' 

appeal, however, the court of appeals held that there was 

not a final judgment because most of the defendants had 

not moved for summary judgment on all claims by both 

plaintiffs and thus were not entitled to a final judgment, 

and the "take nothing" language of the orders did not 

make them final. 66 The court also held that if the orders 

had contained Mother Hubbard clauses they would have 

been final under this Court's precedents, [**35] although the court of appeals did not agree that that would 

have been the proper result. 67

59 866 S.W.2d 590 (Tex. 1993). 

60 Id. at 590. 

61 Id.

62 Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 

385, 388-389 (Tex. App.--Houston [14th Dist.] 
Page 9 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

1992), rev'd sub nom. Mafrige v. Ross, 866 

S.W.2d 590 (Tex. 1993). 

63 Id.

64 866 S.W.2d at 590-591. 

65 Id.

66 Ross, 834 S.W.2d at 394. 

67 Ross, 834 S.W.2d at 393-394. 

We reversed, holding that the "take nothing" language in the eight summary judgment orders disposed of 

all claims asserted by both plaintiffs against each of the 

defendants and thus constituted a final judgment. We 

then explained: 

If a summary judgment order appears to be final, as

evidenced by the inclusion of language purporting to 

dispose of all claims or parties, the judgment should be 

treated as final for purposes of appeal. If the judgment 

grants [**36] more relief than requested, it should be 

reversed and remanded, but not dismissed. We think this 

rule to be practical in application and effect; litigants 

should be able to recognize a judgment which on its face 

purports to be final, and courts should be able to treat 

such a judgment as final for purposes of appeal. 68

68 Mafrige, 866 S.W.2d at 592; accord 

Springer v. Spruiell, 866 S.W.2d 592 (Tex. 1993)

(per curiam). 

 

As examples of "language purporting to dispose of all 

claims or parties," we gave not only the "take nothing" 

language of the orders before us, and the statement that 

summary judgment is granted as to all claims asserted, 

but also the standard Mother Hubbard clause -- that all 

relief not expressly granted is denied. 69 In so doing we 

revived the ambiguity created in Schlipf that Teer had 

tried to end. 

69 Mafrige, 866 S.W.2d at 590 n.1. 

 [**37] The ambiguity has persisted in our decisions. In Martinez v. Humble Sand & Gravel, Inc., 

70 we 

held that the inclusion of a Mother Hubbard clause in an 

order did not necessarily make it final. There, some but 

not all of the defendants moved for summary judgment, 

and the trial court granted the motions, dismissing the 

plaintiff's cause of action against "those Defendants", but 

also ordering that summary judgment was proper "as to 

all remaining Defendants", thereby suggesting that the 

court intended to render a final summary judgment. 71

However, the trial court subsequently severed the summary judgment by order inviting other defendants to

move on the same grounds. 72 Although this order contained a Mother Hubbard clause, we held that judgment 

had not been rendered for the non-moving defendants. 

73

70 875 S.W.2d 311 (Tex. 1994) (per curiam). 

71 Id. at 313. 

72 Id.

73 Id.

But in Bandera Electric Cooperative, Inc. v. 

Gilchrist, 

74 we held that [**38] a Mother Hubbard 

clause in a summary judgment made it final. There the 

plaintiff moved for summary judgment on its claims 

without mentioning the defendant's counterclaims. 75 The 

defendant did not move for summary judgment. The trial 

court [*203] granted the plaintiff's motion by order 

that included a Mother Hubbard clause. We concluded

that the order was final, albeit erroneous. 76 We attempted 

to explain that our ruling was consistent with Martinez

because the conflict in the orders involved in that case 

showed that they were not final even though "a Mother 

Hubbard clause . . . would have created a final and appealable judgment". 77 Besides its obvious inadequacy in 

explaining the result in Martinez, this explanation suggested that a Mother Hubbard clause would by itself

make any summary judgment final, contrary to our 

holding in Teer. 

74 946 S.W.2d 336 (Tex. 1997) (per curiam). 

75 Id. at 337. 

76 Id.

77 Id. at 337 n.2. 

Determining [**39] the significance of omitting a 

Mother Hubbard clause in an order has been no easier. In 

Park Place Hosp. v. Estate of Milo, we suggested that the 

absence of a Mother Hubbard clause indicated that a

summary judgment was intended to be interlocutory. 78

There, the trial court granted summary judgment for

three of five remaining defendants and later severed the 

judgment from the case. We concluded that the judgment 

did not become final for purposes of appeal until it was 

severed, in part based on the omission of a Mother Hubbard clause. But in two other cases we held that the 

omission of a Mother Hubbard clause did not make a 

summary judgment interlocutory that otherwise appeared 

final. In Continental Airlines, Inc. v. Kiefer, 

79 the defendant moved for summary judgment "on all claims 

brought by" the plaintiffs. After the motion was filed, but 

before it was heard and decided, the plaintiffs amended 

their pleadings to add additional claims. The defendant 

did not amend its motion to address these later claims. 

The trial court granted what it entitled a "final summary 

judgment", dismissing the plaintiffs' cause of action" -- 

"cause", singular -- although multiple causes of action 

[**40] had been asserted. We held that the judgment 

was final, explaining as follows: 

Finality "must be resolved by a determination of the 

intention of the court as gathered from the language of 

the decree and the record as a whole, aided on occasion 
Page 10 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

by the conduct of the parties." 5 RAY W. MCDONALD, 

TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, ed., 1992 ed.); see Ferguson v. Ferguson, 161 Tex. 

184, 338 S.W.2d 945, 947 (Tex. 1960). In the circumstances described here, we think the district court intended to render a final, appealable judgment. . . . Neither the parties nor the court of appeals have suggested 

that the judgment was not final. 80

78 909 S.W.2d 508, 510 (Tex. 1995). 

79 920 S.W.2d 274, 276 (Tex. 1996). 

80 Id. at 277. 

 

The judgment did not include a Mother Hubbard clause, 

but we did not find its omission significant. We reached 

a similar conclusion in Inglish v. Union State Bank. 

81

81 945 S.W.2d 810 (Tex. 1997) (per curiam). 

 [**41] In sum, our opinions have not been entirely consistent on whether the inclusion or omission of a 

Mother Hubbard clause does or does not indicate that a 

summary judgment is final for purposes of appeal. This 

ambivalence has resulted in considerable confusion in 

the courts of appeals. 82

82 See, e.g., Elaine A. Carlson & Karlene S. 

Dunn, Navigating Procedural Minefields: Nuances in Determining Finality of Judgments, 

Plenary Power, and Appealability, 41 SO. TEX. 

L. REV. 953, 969-1001 (2000); William J. Cornelius & David F. Johnson, Tricks, Traps, and 

Snares in Appealing a Summary Judgment in 

Texas, 50 Baylor L. Rev. 813, 825-835 (1998). 

III 

A

Much confusion can be dispelled by holding, as we 

now do, that the inclusion of a Mother Hubbard clause -- 

by which we mean the statement, "all relief not granted is 

denied", or essentially those words -- [*204] does not 

indicate that a judgment rendered without a conventional 

trial is final for purposes of appeal. We overrule Mafrige

[**42] to the extent it states otherwise. If there has been 

a full trial on the merits either to the bench or before a 

jury, the language indicates the court's intention to finally 

dispose of the entire matter, assuming that a separate or 

bifurcated trial is not ordered. But in an order on an interlocutory motion, such as a motion for partial summary 

judgment, the language is ambiguous. It may mean only 

that the relief requested in the motion -- not all the relief 

requested by anyone in the case -- and not granted by the 

order is denied. The clause may also have no intended 

meaning at all, having been inserted for no other reason 

than that it appears in a form book or resides on a word 

processor. For whatever reason, the standard Mother

Hubbard clause is used in interlocutory orders so frequently that it cannot be taken as any indication of finality. 

As we have already explained, an order can be a final judgment for appeal purposes even though it does not 

purport to be if it actually disposes of all claims still 

pending in the case. Thus, an order that grants a motion 

for partial summary judgment is final if in fact it disposes of the only remaining issue and party in the case, even 

[**43] if the order does not say that it is final, indeed, 

even if it says it is not final. (Again, we do not consider 

here the various kinds of cases in which there may be 

more than one final judgment for purposes of appeal.) 

Also, an order can be final and appealable when it should 

not be. For example, an order granting a motion for

summary judgment that addressed all of the plaintiff's 

claims when it was filed but did not address claims

timely added by amendment after the motion was filed 

may state unequivocally that final judgment is rendered 

that the plaintiff take nothing by his suit. Granting more 

relief than the movant is entitled to makes the order reversible, but not interlocutory. 83

 

83 See Young v. Hodde, 682 S.W.2d 236, 237 

(Tex. 1984) (per curiam); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 

1983) (per curiam); Schlipf v. Exxon Corp., 644 

S.W.2d 453 (Tex. 1983) (per curiam). 

While the present problems in determining whether 

an [**44] order is a final judgment should be lessened 

significantly by denying the standard Mother Hubbard 

clause of any indicia of finality in any order not issued 

after a conventional trial, the difficulty in determining 

what does make an order final and appealable remains. 

One solution would be stricter requirements for the form 

of a final judgment. Rule 58 of the Federal Rules of Civil 

Procedure takes this approach by requiring that to be 

final a judgment must "be set forth on a separate document" and be entered by the clerk on the civil docket. 

The separate-document requirement was added to the 

rule in 1963 to remove uncertainty over whether a trial 

judge's opinion or order constituted a final judgment. 84

Rule 58, with its dual requirements, "'enhances certainty 

by insisting on formality.'" 85 The United States Supreme 

Court has insisted on strict compliance with the rule, 

quoting Professor Moore's observation that the rule 

"'would be subject to criticism for its formalism 

were it not for the fact that something like this was 

needed to make certain when a judgment becomes effective, which has a most important bearing, inter alia, on 

the time for appeal and the making of post-judgment
Page 11 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

[**45] motions that go to the finality of the judgment 

[*205] for purposes of appeal.'" 86

84 Bankers Trust Co. v. Mallis, 435 U.S. 381, 

384-385, 55 L. Ed. 2d 357, 98 S. Ct. 1117 (1978). 

85 CHARLES ALAN WRIGHT, ARTHUR R. 

MILLER, & MARY KAY KANE, FEDERAL 

PRACTICE & PROCEDURE § 2781 (2d ed. 

1995) (quoting Benjamin Kaplan, Amendments of 

the Federal Rules of Civil Procedure, 1961-1963, 

77 HARV. L. REV. 801, 831 (1964)). 

86 United States v. Indrelunas, 411 U.S. 216, 

220-221, 36 L. Ed. 2d 202, 93 S. Ct. 1562 (1973). 

 

The one recognized exception is a party's failure to object. 87

 

87 Bankers Trust, 435 U.S. at 387-388. 

The price of certainty, however, as federal rulemakers have come to realize, is that in many cases the failure 

to comply with Rule 58 means that no final [**46] 

judgment was ever rendered, and the time for appeal

remains open. 88 A proposed amendment to Rule 58

would provide that if final judgment is not rendered on a 

separate document, it is deemed rendered on the sixtieth 

day after the clerk's entry on the civil docket. 89 While 

this proposal helps ensure that every case will be closed, 

it also makes it more likely that a party will not be aware 

that the time for appeal is running -- the problem the 

1963 amendment to Rule 58 was meant to cure -- because he does not know of the clerk's entry on the civil 

docket. 

88 COMMITTEE ON RULES OF PRACTICE 

& PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED 

AMENDMENTS TO THE FEDERAL RULES 

OF APPELLATE, BANKRUPTCY, CIVIL, 

AND CRIMINAL PROCEDURE 100-114 (Aug. 

2000). 

89 Id. 

There may be other solutions to these dilemmas 

which could be implemented by changes in our own 

rules, and this Court's Advisory Committee is presently 

studying the issues. But we do not write rules by opinion. 

90 [**47] We must decide what Texas law requires for

finality given the present rules. 

90 State Dept. of Highways & Pub. Transp. v. 

Payne, 838 S.W.2d 235, 241 (Tex. 1992); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 

(Tex. 1992). 

In the past we have tried to ensure that the right to 

appeal is not lost by an overly technical application of 

the law. 91 Fundamentally, this principle should guide in 

determining whether an order is final. Simplicity and 

certainty in appellate procedure are nowhere more important than in determining the time for perfecting appeal. From the cases we have reviewed here, we conclude that when there has not been a conventional trial 

on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every 

pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and 

all parties. An order that adjudicates only the plaintiff's 

claims against the defendant does not adjudicate [**48] 

a counterclaim, cross-claim, or third party claim, nor 

does an order adjudicating claims like the latter dispose 

of the plaintiff's claims. An order that disposes of claims 

by only one of multiple plaintiffs or against one of multiple defendants does not adjudicate claims by or against 

other parties. An order does not dispose of all claims and 

all parties merely because it is entitled "final", or because 

the word "final" appears elsewhere in the order, or even 

because it awards costs. Nor does an order completely 

dispose of a case merely because it states that it is appealable, since even interlocutory orders may sometimes 

be appealable. Rather, there must be some other clear 

indication that the trial court intended the order to completely dispose of the entire case. Language that the 

plaintiff take nothing by his claims in the case, or that the 

case is dismissed, shows finality if there are no other 

claims by other parties; but language that "plaintiff take 

nothing by his claims against X" when there is more than 

one defendant or other parties in the case does not indicate finality. 

91 Verburgt v. Dorner, 959 S.W.2d 615, 

616-617 (Tex. 1997). 

 [**49] To determine whether an order disposes of 

all pending claims and parties, it may of course be necessary for the appellate court [*206] to look to the 

record in the case. Thus, in the example just given, if the 

record reveals that there is only one plaintiff and only 

one defendant, X, the order is final, but if the record reveals the existence of parties or claims not mentioned in 

the order, the order is not final. On the other hand, an 

order that expressly disposes of the entire case is not 

interlocutory merely because the record fails to show an 

adequate motion or other legal basis for the disposition. 

The record may help illumine whether an order is made 

final by its own language, so that an order that all parties 

appear to have treated as final may be final despite some 

vagueness in the order itself, while an order that some 

party should not reasonably have regarded as final may 

not be final despite language that might indicate otherwise. 
Page 12 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

One may argue after Aldridge and Mafrige that it is 

perilous to suggest any particular language that will 

make a judgment final and appealable because that language can then be inserted in orders intended to be interlocutory. But to leave in [**50] doubt the degree of 

clarity required for finality creates its own problems. The 

Mother Hubbard clause proved to give no indication of 

finality not just because it found its way into every kind 

of order, but because it was inherently ambiguous, as we 

have explained. A statement like, "This judgment finally 

disposes of all parties and all claims and is appealable", 

would leave no doubt about the court's intention. An order must be read in light of the importance of preserving 

a party's right to appeal. If the appellate court is uncertain 

about the intent of the order, it can abate the appeal to 

permit clarification by the trial court. 92 But if the language of the order is clear and unequivocal, it must be 

given effect despite any other indications that one or 

more parties did not intend for the judgment to be final. 

An express adjudication of all parties and claims in a 

case is not interlocutory merely because the record does 

not afford a legal basis for the adjudication. In those circumstances, the order must be appealed and reversed. 

92 TEX. R. APP. P. 27.2. 

 [**51] B

Nothing in the order in Lehmann indicates that it is a 

final judgment, and it did not dispose of all pending 

claims and parties. The order in Harris states that plaintiffs take nothing as to "one of the defendants", but that 

language does not suggest that all of the plaintiffs' claims 

were denied. As the order recites and as the record

demonstrates, the defendant named in the order was not 

the only defendant remaining in the case. Thus, we conclude that a final and appealable judgment was not rendered in either case. 

We are concerned that in neither case were the 

non-movants provided a copy of the court's signed order 

but were merely sent notice by postcard that an order had 

been signed. The Rules of Civil Procedure do not require 

clerks to send all parties copies of all orders, only final 

orders. 93 Nevertheless, the practice of courts in some 

counties is to require that a party seeking an order provide copies and addressed, postage-paid envelopes for all 

other parties. The Court's Advisory Committee should 

consider whether the rules should require that all parties 

be given copies of all orders signed in a case. 

93 See TEX. R. CIV. P. 306a(3). 

 [**52] IV 

We must respond briefly to the concurring opinion. 

It would hold that no "type of conclusory finality language can ever be read to grant more relief than requested by the parties." 94 This goes too far. The legitimate 

problem with Mother Hubbard clauses, which we failed 

to appreciate in Mafrige, is that they are ambiguous: one 

cannot be sure whether the denial of all relief other than 

what has been expressly [*207] granted is limited to 

relief requested in a motion or extends to all relief requested in the litigation. But it is a long way from the 

now well-established fact that Mother Hubbard clauses 

can understandably be misread to the concurring opinion's conclusion that clear language should be given no 

meaning. We require certainty for finality, but we cannot 

say that certainty is impossible. 

94 Post, 39 S.W.3d 191, 2001 Tex. LEXIS 6, 

*89. 

The concurring opinion claims as authority for its 

position pre-Mafrige law, but before Mafrige, this Court 

repeatedly held that general language in a summary 

judgment finally disposed [**53] of the litigation even 

though no party had requested final relief. In Schlipf v. 

Exxon Corp. we held that an order granting the plaintiffs' 

motion for summary judgment on one of its claims and 

generally denying all other relief was final, even though 

no defendant had moved for summary judgment or requested the denial of any relief. 95 Similarly, in Chessher 

v. Southwestern Bell Telephone Co. we held that a summary judgment generally disposing of all four claims 

asserted by the plaintiff was final, even though the defendant moved for summary judgment on only one of the 

claims. 96 Again in Young v. Hodde, we agreed that a 

Mother Hubbard clause in an order granting summary 

judgment for the plaintiff disposed of a defendant's 

counterclaim, even though the plaintiff's motion had addressed only his own claims and not the counterclaim. 97

It has simply never been the law in Texas that a summary 

judgment generally disposing of all claims and parties is 

nevertheless interlocutory merely because rendition of a 

final judgment was improper. In essence, the concurring 

opinion's position is that a trial court has no jurisdiction 

to grant more relief than is requested, and that if [**54] 

it does so, its action is absolutely void. We do not agree 

that a court's power to act, as distinct from the proper 

exercise of that power, is defined by a party's request for 

relief. 

95 644 S.W.2d 453 (Tex. 1982) (per curiam). 

96 658 S.W.2d 563 (Tex. 1983) (per curiam). 

Although our opinion did not quote the trial 

court's order, an examination of the record in the 

case reveals that the order recited that the court 

had considered the defendant's motion for summary judgment, the plaintiff's responses, and the 

defendant's reply, and had notified the parties that 

"it had determined to grant the defendant's mo-
Page 13 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

tion for summary judgment." The decretal portion 

of the order stated "that plaintiff, Paul G. 

Chessher, take nothing of and from defendant, 

Southwestern Bell Telephone Company. Costs of 

court are hereby taxed against plaintiff, Paul G. 

Chessher." 

97 Young v. Hodde, 682 S.W.2d 236, 236-237 

(Tex. 1984) (per curiam), writ ref'd n.r.e., 672 

S.W.2d 45 (Tex. App.--Houston [14th Dist.]). 

 [**55] The concurring opinion acknowledges that 

its position may result in more appeals being taken from 

orders that look final but are really interlocutory, but it 

argues that appellate courts can easily deal with such 

problems by abating appeals to allow trial courts to clarify their orders. What the concurring opinion ignores is 

that trial courts and parties will assume that orders with 

general dispositive language mean what they say, only to 

learn months or years after an appeal should have been 

taken that no final judgment was ever rendered. JUSTICE BAKER would insist that every order granting 

summary judgment specifically identify: (1) the claims 

each party brought; (2) the grounds upon which each

party seeks summary judgment; (3) each ground upon 

which the trial court granted summary judgment; and (4) 

each ground upon which the trial court denied summary 

judgment. 

 

Any order that failed to meet these requirements would 

be interlocutory, according to JUSTICE BAKER, "regardless of how clearly it states that it is a final judgment 

disposing of all parties and issues." 98 The very real risk 

of such a rule is that thousands of judgments intended to 

be final would remain interlocutory [**56] because

they did not comply with all of these requirements. 

[*208] This is precisely what has happened in the federal system, as we have already explained, even though 

the federal rules impose far fewer requirements on final 

judgments than the concurring opinion would. 

98 Post, 39 S.W.3d 191, 2001 Tex. LEXIS 6, 

*94 (emphasis in original). 

* * * * *

For the reasons we have explained, the judgments of

the court of appeals in these cases are reversed, and the 

cases are remanded to that court for further proceedings. 

Nathan L. Hecht 

Justice 

Opinion delivered: February 1, 2001 

CONCUR BY: James A. Baker 

CONCUR 

Argued January 26, 2000 

JUSTICE BAKER filed a concurring opinion in 

which JUSTICE ENOCH joined, except for Part IV and 

the discussion of Inglish and Bandera, and in which 

JUSTICE HANKINSON joined, except Part IV. 

The Court granted these petitions in Lehmann and 

Harris to solve the Mafrige problems. The Court fails to 

do so. Thus, while I concur in the result the Court reaches, I cannot agree with the [**57] reasoning it uses to 

reach that result. 

In March 1993, we granted writ in Mafrige v. Ross

to resolve the inherent problems in determining finality 

of summary judgments for purposes of appeal. 866 

S.W.2d 590 (Tex. 1993). There we recognized that determining finality had "been a recurring and nagging 

problem throughout the judicial history of this state." 

Mafrige, 866 S.W.2d 590. Thus, in a major departure 

from our prior jurisprudence, we created a new rule

providing: "If a summary judgment order appears to be 

final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment 

should be treated as final for purposes of appeal." Mafrige, 866 S.W.2d 590 at 592. 

Despite the certainty we intended this bright-line 

rule to provide, the last seven years have proved that the 

Mafrige rule has created more problems than it 

solved--confusing the lower courts, operating as a trap 

for unwary litigants, and consistently bringing about arguably unjust and oftentimes absurd results. So, in November 1999, we granted the petitions in these cases to 

resolve the Mafrige problems. Inexplicably, the Court 

[**58] begins its opinion by chronicling the evolution 

of the rules and presumptions governing finality of orders following a conventional trial on the merits from the 

middle of the last century to the present. 1 Then, with 

very little discussion of the problems Mafrige and its 

progeny created in determining summary judgment finality, the Court concludes that the solution is to maintain 

the principle of the Mafrige legal fiction--with only 

slight modification. However, rather than solve, the 

Court merely perpetuates the problems Mafrige created. 

The cases grappling to apply Mafrige illustrate that there 

is but one real solution. We should return to the principle 

we announced in Teer v. Duddlesten--that a Mother 

Hubbard clause simply "has no place in a partial summary judgment," and that a summary judgment order is 

not an appealable, final judgment unless it actually disposes of all parties and issues. 664 S.W.2d 702, 703-04 

(Tex. 1984). The Court states: "We do not write rules by 

opinion." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *46. The 

Court is right; we should not establish rules by judicial 

fiat. We should not have done so in Mafrige and we 
Page 14 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

should not have perpetuated the [**59] Mafrige problems with Inglish and Bandera. Any new summary 

judgment finality rule should be achieved by this Court's 

formally promulgating a new procedure rule. The Court 

should recognize this, overrule Mafrige and its progeny, 

and await a recommendation by [*209] our rules advisory committee. Because the Court refuses to take this 

path, I concur in the judgment only. 

1 These rules and presumptions are irrelevant 

to the issues before the Court today. As we have 

repeatedly admonished--in Mafrige, in Aldridge, 

and even in the Court's opinion today--the rules 

governing finality after a conventional trial are 

wholly inappropriate for determining finality of 

summary judgments. See Mafrige, 866 S.W.2d 

590 at 592; North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966); 

Lehmann, S.W.3d , 1998 Tex. App. LEXIS 

4657. 

I. MAFRIGE AND ITS PROGENY

Before Mafrige, courts determined summary judgment finality by reviewing the live pleadings, the summary judgment [**60] motion, and the summary judgment order. Harris County v. Nash, 22 S.W.3d 46, 

49-50 (Tex. App.--Houston [14th Dist.] 2000, pet. filed); 

Kaigler v. General Elec. Ins. Mortgage Corp., 961 

S.W.2d 273, 275 (Tex. App.--Houston [1st Dist.] 1997, 

no pet.). A summary judgment was deemed final and 

appealable only if it expressly disposed of all parties and 

issues or if it was severed from the remainder of the suit. 

Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 

159 Tex. 550, 324 S.W.2d 200, 200 (Tex. 1959) ("[A] 

summary judgment which does not dispose of all parties 

and issues in the pending suit is interlocutory and not 

appealable unless a severance of that phase of the case is 

ordered by the trial court."). 

With Mafrige, this Court attempted to simplify this 

process by holding that the "magic language" of a Mother Hubbard or similar finality clause conclusively transforms an interlocutory summary judgment into a final, 

appealable order. Mafrige, 866 S.W.2d at 592. We have 

twice revisited Mafrige to clarify its scope. See Inglish v. 

Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997)

(holding [**61] that the Mafrige rule applies even when 

neither party appeals the erroneous summary judgment); 

Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 

337 (Tex. 1997) (explaining that when the Mafrige rule 

renders a partial summary judgment final for purposes of 

appeal, the appellate court should reverse and remand 

only the erroneously disposed claims). Unfortunately, 

Mafrige did little towards alleviating the lower courts' 

confusion--and Inglish and Bandera only compounded it. 

The Court's opinion suffers the same problem. Namely, 

its slightly-modified Mafrige rule falls far short of remedying the myriad of problems the Mafrige fiction and its 

progeny created. 

A. FINALITY LANGUAGE 

One source of confusion under Mafrige has been 

uncertainty about what language triggers its finality rule.

In Mafrige, we held that a partial summary judgment is 

treated as final for appeal purposes when the order contains a Mother Hubbard clause stating that "all relief not 

expressly granted is denied" or other language "purporting to dispose of all claims or parties." 866 S.W.2d at 590

& n.1, 592. We further clarified that [**62] "other" 

finality language includes "a statement that the summary 

judgment is granted as to all claims asserted by the plaintiff, or a statement that the plaintiff takes nothing against 

defendant." Mafrige, 866 S.W.2d at 590 n.1.; see also 

Inglish, 945 S.W.2d at 811 (holding statement that "defendant is entitled to summary judgment in this case," 

and that plaintiff should "take nothing on account of his 

lawsuit" rendered partial summary judgment final for 

purposes of appeal); Springer v. Spruiell, 866 S.W.2d 

592, 593 (Tex. 1993) (holding that summary judgment 

order reciting plaintiffs "have and recover nothing" purported to dispose of all parties and issues). 

Despite these examples, some lower courts have refused to hold orders containing this exact language final 

for purposes of appeal. E.g., Carey v. Dimidjian, 982 

S.W.2d 556, 558 (Tex. App.--Eastland 1998, no pet.) 

(holding that order containing Mother Hubbard clause 

was not final and appealable where the motion was labeled "Partial Summary Judgment" and the parties treated the order as interlocutory); Hinojosa v. Hinojosa, 866 

S.W.2d 67, 69-70 [**63] (Tex. App.--El Paso 1993, no 

writ) (holding that order containing Mother Hubbard

clause did not render judgment final because it did not 

dispose of counterclaim). Other courts have struggled 

with what "other" language purports to render a judgment final--often reaching opposite conclusions about 

identical clauses. Compare [*210] Postive Feed, Inc. 

v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.--Houston 

[1st Dist.] 1999, no pet.) (holding that order granting 

defendant's summary judgment "in all things" purported 

to be final), with St. Paul Ins. Co. v. Mefford, 1998 Tex. 

App. LEXIS 7388, No. 05-96-01581- CV (Tex. 

App.--Dallas Nov. 30, 1998, no pet.) (not designated for 

publication), 1998 WL 821537, at *2 2

 (holding that order granting defendant's summary judgment "in all 

things" did not purport to be final). 

2 The unpublished opinions cited in Part I are 

cited only as examples, not as precedent. See 

TEX. R. APP. P. 47.7. 
Page 15 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

While the Court recognizes that the "routine inclusion of [a Mother Hubbard clause] in [**64] otherwise 

plainly interlocutory orders and its ambiguity in many 

contexts have rendered it inapt for determining finality," 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *2, it ignores the 

obvious problems courts have faced interpreting other

language "purporting to dispose of all claims or parties." 

Mafrige, 866 S.W.2d at 592. In fact, despite the Court's 

extensive analysis and discussion, its holding represents 

but a minor departure from Mafrige. 

Its modified rule has two parts. The first represents 

no change in Texas law. It simply reiterates that a summary judgment order that actually disposes of all parties 

and issues is final for purposes of appeal. 39 S.W.3d 

191, 2001 Tex. LEXIS 6, *10. The second part provides 

that a Mother Hubbard clause is no longer enough to

invoke the fiction that an otherwise interlocutory order is 

treated as final for purposes of appeal. Instead, to invoke 

the Mafrige fiction, an interlocutory order must now 

"clearly and unequivocally state[] that it finally disposes 

of all claims and all parties." 39 S.W.3d 191, 2001 Tex. 

LEXIS 6, *47. The Court further explains that the statements "plaintiff take nothing by his claims in the case" 

and "this judgment finally disposes of all parties [**65] 

and all claims and is appealable" clearly and unequivocally state that an order is final. 39 S.W.3d 191, 2001 

Tex. LEXIS 6, *50. In essence, the Court's rule does no 

more than replace one set of magic language with another--while ignoring the reality that courts will likely face 

the same challenges deciding what language "clearly and 

unequivocally states" that an order is final, 39 S.W.3d 

191, 2001 Tex. LEXIS 6, *47, as they did deciding what 

other language clearly "purports to dispose of all claims 

or parties" under Mafrige. 866 S.W.2d at 592. 

 

B. OMITTED PARTIES

Applying Mafrige to omitted parties, like those in 

both Lehmann and Harris, has also troubled the lower 

courts. Specifically, they have struggled with deciding 

when finality language operates to render a summary

judgment final against omitted parties. This issue often 

surfaces when both the summary judgment motion and

the resulting order omit any specific reference to one or 

more parties. 3

 In this situation, several courts have held 

that Mafrige applies, reasoning that issues and parties are 

co-extensive and thus if "an order disposes of all issues 

in a case, then it necessarily disposes of all parties to a 

case, [**66] and vice versa." Kaigler, 961 S.W.2d at 

276; see also Lehmann v. Har-Con Corp., 988 S.W.2d 

415, 416-17 (Tex. App.--Houston [14th Dist.] 1999, pet. 

granted); Harper v. Newton, 910 S.W.2d 9, 12 n.1 (Tex. 

App.--Waco), rev'd sub nom. on other grounds, Dallas 

County v. Harper, 913 S.W.2d 207 (Tex. 1995). 

3 This issue also arises when a trial court expressly mentions and disposes of a party even 

though that party was not mentioned in the motion for summary judgment. Here, the lower 

courts have been more willing to apply Mafrige

and hold that the order purports to dispose of all 

parties and issues. See, e.g., Mikulich v. Perez, 

915 S.W.2d 88, 91-92 (Tex. App.--San Antonio 

1996, no writ). 

In contrast, other courts have interpreted Mafrige

more narrowly, reasoning that an "order that explicitly 

grants a summary judgment in favor of less than all the 

defendants does not clearly evidence an intent to dispose 

of all claims [**67] against all defendants, especially 

those against whom [*211] summary judgment was 

not sought, regardless of the inclusion of a Mother Hubbard clause." Lowe v. Teator, 1 S.W.3d 819, 823-24 (Tex. 

App.--Dallas 1999, pet. filed); see also Midkiff v. Hancock E. Tex. Sanitation, Inc., 996 S.W.2d 414, 416 (Tex. 

App.--Beaumont 1999, no pet.); Vanderwiele v. Llano 

Trucks, Inc., 885 S.W.2d 843, 845 (Tex. App.--Austin 

1994, no writ). 

Here the Court summarily dismisses this omitted 

parties problem: 

Nothing in the order in Lehmann indicates that it is a 

final judgment, and it did not dispose of all pending 

claims and parties. The order in Harris states that plaintiff take nothing as to "one of the defendants", but that 

language does not suggest that all of the plaintiffs' claims 

were denied. As the order recites and as the record

demonstrates, the defendant named in the order was not 

the only defendant remaining in the case. Thus, we conclude that a final appealable judgment was not rendered 

in either case. 

 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *51. Despite the 

presence of a Mother Hubbard clause, the trial court and 

parties in Lehmann continued treating the [**68] order 

as interlocutory--even in the face of this Court's admonishment that a Mother Hubbard clause indicates finality. 4

988 S.W.2d at 416. The Court now holds that the order 

did not purport to be final based solely on its new rule 

discounting the dispositive effect of Mother Hubbard 

clauses. 

4 In fact, the district clerk sent all the parties 

(including those omitted from the summary 

judgment order) a postcard indicating that an 

"Order for Interlocutory Summary Judgment" had 

been signed. Lehmann, 988 S.W.2d at 416. 

However, the Court's resolution merely sidesteps the 

real problem. What happens in the next case when, on 

facts identical to Lehmann, a trial court signs an interloc-
Page 16 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

utory summary judgment with the Court's new magic 

language rather than a Mother Hubbard clause? We are 

right back where we started. Substituting one magic

phrase for another leads nowhere. 

The reality is simply that omitted parties oftentimes 

do not believe that a summary judgment order that they 

have [**69] not seen, that does not mention them, and 

that results from a hearing in which they did not participate will operate to dispose of them or their claims. But, 

under the Court's standard, if these parties do not perfect 

a timely appeal from the erroneous judgment, their right 

to appeal is forever lost. This result elevates form over 

substance and hinders parties' rights to have the merits of 

their claims considered. See, e.g., Rodriguez v. NBC 

Bank, 5 S.W.3d 756, 763 n.4 (Tex. App.--San Antonio 

1999, no pet.) (recognizing this Court's "express goal of 

reaching the merits of a cause of action, instead of dismissing actions on procedural technicalities"). 

C. OMITTED CROSS-CLAIMS AND COUNTERCLAIMS 

The courts of appeals have also treated omitted 

cross-claims and counterclaims inconsistently--despite 

our holding in Bandera. In Bandera, the trial court 

signed an order with a Mother Hubbard clause that did 

not mention the defendant's counterclaims. 946 S.W.2d at 

337. This Court explained that "because the order contained a Mother Hubbard clause denying all other relief, 

it also purported to dispose of [the defendant's] counterclaims." Bandera, 946 S.W.2d at 337. [**70] But several courts have refused to apply Mafrige in this situation, maintaining that a summary judgment that does not 

mention counterclaims or cross-claims cannot purport to 

be final--regardless of whether it contains finality language. E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33

(Tex. App.--Houston [14th Dist.] 2000, pet. denied); 

Hervey v. Flores, 975 S.W.2d 21, 25 (Tex. App.--El Paso 

1998, pet. denied); cf. Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d 430, 433 n.2 (Tex. App.--Beaumont 

2000, no pet.). Other courts have followed Bandera's 

mandate, holding that finality language--such as "plaintiff takes nothing"--renders [*212] a judgment final 

for appeal purposes, despite omission of any reference to 

defendant's counterclaims. In re Monroe, 2000 Tex. App. 

LEXIS 2159, No. 05-99-01758- CV (Tex. App.--Dallas 

Mar. 31, 2000, orig. proceeding) (not designated for publication), 2000 WL 378519, at *1-2; see also Kaigler, 

961 S.W.2d at 275-76. 

The Court's rule does not provide a satisfactory 

remedy for this situation either. The Court states:

An order that adjudicates only the plaintiff's claims 

against the defendant does [**71] not adjudicate a

counterclaim, cross-claim, or third party claim, nor does 

an order adjudicating claims like the latter dispose of the 

plaintiff's claims. An order that disposes of claims by 

only one of multiple plaintiffs or against one of multiple 

defendants does not adjudicate claims by or against other 

parties. An order does not dispose of all claims and all 

parties merely because it is entitled "final," or because 

the word "final" appears elsewhere in the order, or even 

because it awards costs. Nor does an order completely 

dispose of a case merely because it states that it is appealable, since even interlocutory orders may sometimes 

be appealable. Rather, there must be some other clear 

indication that the trial court intended the order to completely dispose of the entire case. 

 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *47-48. 

Under its modified finality rule, the lower courts'

disagreement in this area will continue because too many 

questions are left unanswered. For example, should a 

"final" summary judgment order stating that defendant is 

granted summary judgment "in all things" dispose of a 

cross-claim by another defendant as well as the claim by 

the plaintiff that brought the original claim? In this 

[**72] situation, there is no doubt that the order is unambiguous. However, it is likewise clear, but not from 

the order, that the third party's claim against the defendant was never considered. Should an order granting 

summary judgment for a plaintiff that recites it is a final 

and appealable order be final for counterclaims not mentioned in the motion or order? The order unequivocally 

states that it is a final, appealable order. Nonetheless 

there is a counterclaim that has not been considered. The 

Court states that a summary judgment granted for a 

plaintiff "does not adjudicate a counterclaim" and then 

goes on to say that to make the order final there must be 

"some other clear indication that the trial court intended 

the order to completely dispose of the entire case." 39 

S.W.3d 191, 2001 Tex. LEXIS 6, *47-48. In the example 

above, does the additional statement that "this is a final, 

appealable order" provide this "other clear indication"? 

These very issues are repeatedly raised in the courts of 

appeals, and the Court's modified rule simply does not 

resolve them. 

D. TRIAL COURTS' AND PARTIES' INTENT 

Differing philosophies about the effect the trial 

courts' and parties' intent should have on how [**73] 

Mafrige applies has created the most confusion and inconsistency. The courts of appeals have taken three approaches. Some courts apply a bright-line test, holding 

that a Mother Hubbard clause or other finality language 

always renders an order final for appeal purposes, regardless of any evidence of contrary intent. E.g., Preston 

v. American Eagle Ins. Co., 948 S.W.2d 18, 20-21 & n.1 

(Tex. App.--Dallas 1997, no writ) (holding that summary 
Page 17 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

judgment purported to be final despite fact it was entitled 

"partial summary judgment"); cf. In re Cobos, 994 

S.W.2d 313, 315 (Tex. App.--Corpus Christi 1999, orig. 

proceeding) ("As Mafrige and Inglish make clear, the 

intent of the trial court is not the controlling consideration in determining whether a judgment is final."). Other 

courts modify this approach, looking only within the four 

corners of the order and giving effect to any evidence of 

contrary intent found there. E.g., Rodriguez, 5 S.W.3d at 

763-64 (Tex. App.--San Antonio 1999, no pet.) ("Looking within the four corners of the summary judgment

order, the plain language of the [*213] Mother Hubbard clause did not, and could not, [**74] purport to 

grant or deny any more relief than the relief which [the 

defendant] sought."); Midkiff, 996 S.W.2d at 416 (looking to order "as a whole" to conclude that summary 

judgment order containing Mother Hubbard clause did

not purport to be final). 

Finally, despite our holding in Inglish that the trial 

court's intent is irrelevant in this context, other courts 

still refuse to apply Mafrige if there is evidence of contrary intent anywhere in the record. This usually occurs 

when the parties and court treat an order as interlocutory 

by continuing with the litigation rather than appealing 

the erroneous order. E.g., Lowe, 1 S.W.3d at 823-24

(holding that summary judgment could not be final 

where the record reflected that there were parties who 

did not participate in the summary judgment proceeding); Carey, 982 S.W.2d at 558 (relying, in part, on 

court's and parties' treatment of order containing Mother 

Hubbard clause as interlocutory to conclude judgment 

was not final). 

The Court's solution to this problem is as confusing 

as the rule it seeks to supplant. It appears to reject the 

bright-line approach Mafrige espouses [**75] and instead adopt a rule combining the second and third approaches. First, the Court notes that an order is final for 

appeal purposes if it "unequivocally states that it finally 

disposes of all parties and all claims and is appealable." 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *47. It also explains 

that "if the language of the order is clear and unequivocal, it must be given effect despite any other indications 

that one or more parties did not intend for the judgment 

to be final." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *50. 

From these statements, the Court's new rule walks and 

talks a lot like a bright-line Mafrige rule, with magic 

language establishing finality. 

However, the Court also states that "to determine 

whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court 

to look to the record in the case." 39 S.W.3d 191, 2001 

Tex. LEXIS 6, *49. This sounds more like a pre-Mafrige

rule, where a court must look to the record and the order 

to determine if an order actually disposes of all pending 

parties and issues. 

Because of the lower courts' confusion and disagreement about the role of intent in determining finality, 

I am convinced that the Court has not provided a workable rule that clearly [**76] defines that role as it applies 

to determining summary judgment finality. 

E. APPLYING MAFRIGE TO NON-SUMMARY 

JUDGMENT ORDERS

Finally, the question of whether Mafrige applies 

outside the summary judgment context has confused the 

lower courts. Courts of appeals have applied Mafrige to a 

plea to the jurisdiction, Webb v. HCM Mgmt. Corp., 

1998 Tex. App. LEXIS 372, No. 07-96-0369- CV (Tex. 

App.--Amarillo Jan. 12, 1998, pet. denied) (not designated for publication) 1998 WL 16033, at *1; an agreed 

judgment, In re Cobos, 994 S.W.2d at 315-16; a directed 

verdict, e.g., Polley v. Odom, 957 S.W.2d 932, 943 (Tex. 

App.--Waco 1997, judgm't vacated); and a severance 

order, Harris County Flood Control Dist. v. Adam, 988 

S.W.2d 423, 427 (Tex. App.--Houston [1st Dist.] 1999, 

pet. filed). In contrast, at least one court has declined to 

apply Mafrige to a dismissal for want of jurisdiction. In 

re Tejas, 1998 Tex. App. LEXIS 4405, Nos. 

01-98-00688-CV, 01-98-00689-CV, 01-98-00690-CV 

(Tex. App.--Houston [1st Dist.] July 13, 1998, orig. proceeding) (not designated for publication), 1998 WL 

394562, at *1 n.1. And another has expressly refused to 

[**77] extend Mafrige to any order that is not a summary judgment. Biltmore Swim & Racquet Club Recreational Ass'n v. McAbee, 1998 Tex. App. LEXIS 4812, No. 

05-98-00252- CV (Tex. App.--Dallas Aug. 10, 1998, no 

pet.) (not designated for publication), 1998 WL 459819, 

at *1. 

In Aldridge, this Court held that a presumption of 

finality exists when an order is signed following a traditional trial on the [*214] merits. Aldridge, 400 

S.W.2d at 897-98. But we specifically noted that such a 

finality presumption would not be appropriate in other 

contexts. Aldridge, 400 S.W.2d at 897. Then in Mafrige

we carved out an exception to what we had said in Aldridge by holding that an irrebuttable finality presumption applies to summary judgments containing a Mother 

Hubbard or similar finality clause. Mafrige, 866 S.W.2d 

at 592. Here again, just as we had limited Aldridge to 

conventional trials on the merits, we expressly limited 

Mafrige to summary judgments. Mafrige, 866 S.W.2d at 

591 ("The issue is whether . . . a summary judgment, 

which purports to be final by the inclusion of Mother 

Hubbard language or its equivalent, should be treated 

[**78] as final for purposes of appeal."). Unfortunately, 

several courts of appeals have erroneously applied Maf-
Page 18 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

rige in other contexts, causing confusion over how to 

determine finality of various other types of orders. 

Mafrige and its progeny are limited to summary 

judgments--with good reason. No good can come of interjecting additional uncertainty into (1) conventional 

trials on the merits, to which the majority acknowledges 

the Aldridge presumption has "proved a fairly workable" 

rule, 39 S.W.3d 191, 2001 Tex. LEXIS 6, *23, or (2) numerous other types of orders, when even the majority 

acknowledges that "the ordinary expectation" supporting 

a finality presumption "simply does not exist when some 

form of judgment is rendered without such a trial" because "it is quite possible, perhaps even probable these 

days . . . that any judgment rendered prior to a full-blown 

trial is intended to dispose of only part of the case." 39 

S.W.3d 191, 2001 Tex. LEXIS 6, *27. 

However, the Court's opinion here implicates finality of all judgments. This expansion into issues not before 

the Court today can only cause mischief in areas already 

plagued by confusion. If the Court persists in adhering to 

Mafrige's principles, it [**79] should at least limit its

holding, as we did in Mafrige, to summary judgements. 

II. POLICY CONSIDERATIONS 

Not surprisingly, the post-Mafrige era has given rise 

to considerable analysis by courts and commentators of 

both the competing policies Mafrige implicates and suggestions for reform. A few have applauded the 

bright-line rule. See Kaigler, 961 S.W.2d at 275-76 (recognizing that the rule provides harsh results, but emphasizing that uniform enforcement "encourages attentiveness to correct judgments"); Boyce, Mafrige v. Ross and 

the Pitfalls of Presumptions, APPELLATE ADVOCATE, Nov. 1997, at 7 (opining that Mafrige "resolved 

the confusion created by prior contradictory language 

and flatly inconsistent holdings"). 

 

However, praises have been few and far between. Criticism has been the rule and the comments call for this 

Court to reconsider our decision: 

What began as a benign growth allowing review of 

unripe claims on appeal, in Mafrige, became a malignant 

cancer cutting off causes of action before trial, in Inglish. 

If it were up to me, I would lock Mother Hubbard in the 

cupboard and return to the rule before Aldridge [**80] 

that a judgment is final and appealable only if it expressly disposes of all parties and all claims in the case. That 

appellants can even cite authority for the absurd result 

they seek, illustrates how wrong a turn the law has taken 

in this area--and how strong the need to right it. 

Harris County Flood Control Dist., 988 S.W.2d at 

427-28 (Taft, J., concurring in denial of rehearing en 

banc); see also, e.g., Lehmann, 988 S.W.2d at 418

("Mafrige is not as clear to litigants as the supreme court 

believes it is . . . . In short, Mafrige has created several 

problems: 1) it is catching the parties by surprise . . .;2) it 

exalts form over substance; and 3) in more than a few 

situations, it ignores common sense."); Carlson & Dunn, 

Navigating [*215] Procedural Minefields: Nuances in 

Determining Finality of Judgments, Plenary Power, and 

Appealability, 41 S. TEX. L. REV. 953, 971 (2000)

("Despite the appeal of the certainty provided by this 

bright-line rule, the reality is that still, after seven years, 

it continues to operate as a trap for unwary litigants, 

bringing about arguably unjust and oftentimes draconian 

results."); Swanda, Summary [**81] Judgment, 

Mother Hubbard Clauses, and Mafrige v. Ross, APPELLATE ADVOCATE, May 1997, at 3 (complaining 

that the questions Mafrige raises "are just as elusive" as 

the questions it sought to resolve). 

Strong policies support our practice of adhering to

settled rules of law "unless there exists the strongest reasons for change." Benavides v. Garcia, 290 S.W. 739, 

740-41 (Tex. Comm'n App. 1927, judgm't adopted). But 

we have also recognized the "doctrine of stare decisis 

does not stand as an insurmountable bar to overruling 

precedent." Gutierrez v. Collins, 583 S.W.2d 312, 317 

(Tex. 1979). "Generally, we adhere to our precedents for 

reasons of efficiency, fairness, and legitimacy." Weiner 

v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995). However, 

when adherence to a judicially- created rule of law no 

longer furthers these interests, and "the general interest 

will suffer less by such departure, than from a strict adherence," we should not hesitate to depart from a prior 

holding. Benavides, 290 S.W. at 740. The lower courts' 

application of Mafrige over the last seven years illustrates undeniably that this is just such [**82] a case. 

We intended Mafrige, Inglish, and Bandera to provide certainty to litigants. Instead, they have bred chaos. 

Most disturbing is that the casebooks are now replete 

with examples of dismissed cases where the parties and 

courts clearly intended an order containing finality language to be interlocutory. 5 E.g., Inglish, 945 S.W.2d at 

811; In re Cobos, 994 S.W.2d at 315-16; Pena v. Valley 

Sandia, Ltd., 964 S.W.2d 297, 298-99 (Tex. 

App.--Corpus Christi 1998, no pet.); Kaigler, 961 S.W.2d 

at 275-76. Even the Court acknowledges: 

The ordinary expectation that supports the presumption that a judgment rendered after a conventional trial 

on the merits will comprehend all claims simply does not 

exist when some form of judgment is rendered without 

such a trial. On the contrary, it is quite possible, perhaps 

even probable these days in cases involving multiple 

parties and claims, that any judgment rendered prior to a 

full-blown trial is intended to dispose of only part of the 

case. Accordingly, the finality of the judgment must be 

determined without the benefit of any presumption. 
Page 19 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *26-27. Because 

[**83] of this reality, it is difficult to understand why 

the Court persists in adhering to Mafrige's principles. 

5 Oftentimes in these cases litigation continues 

to move forward. Any error in including magic 

finality language in a summary judgment is not 

discovered until it is too late; the appellate timetable has expired and the trial court has lost plenary power to act. The litigants have forever lost 

their right to complain of the judgment. 

The author of the Court's opinion recently opined: 

"Appellate procedure should not be tricky. It should be 

simple, it should be certain, it should make sense, and it 

should facilitate consideration of the parties' argument on 

the merits. . . ." Lane Bank Equip. Co. v. Smith S. Equip., 

Inc., 10 S.W.3d 308, 314 (Tex. 2000) (Hecht, J., concurring). This Court has repeatedly refused to adopt positions which elevate form over substance. See, e.g., Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999); Nueces 

Canyon Consol. Indep. Sch. Dist. v. Central Educ. 

Agency, 917 S.W.2d 773, 775-76 (Tex. 1996). [**84] 

The Court here even recognizes that "simplicity and certainty in appellate procedure are nowhere more important 

than in determining the time for perfecting appeal." 39 

S.W.3d 191, 2001 Tex. LEXIS 6, *47. Unfortunately 

though, the Court declines to embrace this opportunity 

[*216] to effectuate meaningful change and provide

certainty for courts and litigants. Instead the Court leaves 

them as it found them, grappling with determining 

whether summary judgment orders are fictitiously made 

final. 

III. THE SOLUTION 

The Court notes: "We do not write rules by opinion.

We must decide what Texas law requires for finality, 

given the present rules." 39 S.W.3d 191, 2001 Tex. LEXIS 6, *46-47. Yet, the Mafrige finality rule this Court 

created represented such a major departure from prior 

Texas law. In fact, but for the judicially-created Mafrige 

rule, no one would dispute that "what Texas law requires 

for finality" of summary judgments is an order actually 

disposing of all parties and issues. 

Rather than simply amend the Mafrige finality rule 

and perpetuate the problems the unworkable system 

Mafrige and its progeny created, the Court should focus 

on shaping a real solution--one providing the desired 

certainty and protecting [**85] parties' right to appellate review. This requires wiping the slate clean. Mafrige 

created enough problems with its fictional finality and its 

holding that trial courts can use magic language to create 

final summary judgments by granting relief not requested. 866 S.W.2d 590 at 591-92. In Inglish we compounded the problem by confirming that Mafrige applies 

even when the parties continue litigating rather than appealing a partial summary judgment made final under

Mafrige. Inglish, 945 S.W.2d at 811. We completed the 

trilogy in Bandera, holding that when a party appeals a 

summary judgment granting more relief than requested, 

the court of appeals should address the merits of the appeal, remanding only the part of the judgment that exceeds the relief requested in the summary judgment motion. 946 S.W.2d at 337. Undeniably, these rules were 

designed to simplify summary judgment finality. But, in 

application, these cases only demonstrate that we should 

have adhered to our own admonishments that this Court 

simply should not make rules by opinion. E.g., Alvarado 

v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (explaining that we [**86] should not revise rules by

opinion); see also Verburgt v. Dorner, 959 S.W.2d 615, 

619 (Tex. 1997) (Baker, J., dissenting) (noting that this 

Court's jurisprudence forbids rule amendments by judicial fiat). 

Thus, we should overrule Mafrige, Inglish, and 

Bandera--to the extent they created new rules by judicial 

fiat--and instead tackle the problems of summary judgment finality through our rulemaking process. Accordingly, we should return to our prior position that a Mother Hubbard clause (or other magic language) has no 

place in any summary judgment order--final or partial--and that a trial court may not sua sponte grant more 

relief than the parties request simply by adding conclusory finality language to a summary judgment order.

Further, a summary judgment should be entitled to no 

presumption at all about whether it is final. 

Returning to the law as it was pre-Mafrige requires 

determining the state of the law before Mafrige. Mafrige 

actually held two things: (1) that "'Mother Hubbard' language or its equivalent in an order granting summary 

judgment makes an otherwise partial summary judgment 

final for appeal purposes; " and (2) that if [**87] a 

summary judgment "grants more relief than requested, it 

should be reversed and remanded, but not dismissed." 

866 S.W.2d 590, 592. 

Before Mafrige, this first holding was not the law. In 

Teer v. Duddlesten we held that: 

There is no presumption in partial summary judgments that the judgment was intended to make an adjudication about all parties and issues. The Mother Hubbard clause that "all relief not expressly granted is denied" has no place in a partial summary judgment hearing. The concepts of a partial summary judgment on the 

one hand, and a judgment [*217] that is presumed to 

determine all issues and facts on the other, are inconsistent. 

 
Page 20 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

664 S.W.2d at 704. In Mafrige we recognized this earlier 

statement in Teer, but rejected it and held that finality 

language could render a partial summary judgment final 

for purposes of appeal. 866 S.W.2d 590 at 592. 

Mafrige's second holding--that a summary judgment 

granting more relief than requested should be reversed 

and remanded, but not dismissed--does not appear to be 

an entirely new rule. In both Teer and Chessher, another 

pre-Mafrige case, we reversed and remanded (rather 

[**88] than dismissed) summary judgment orders after 

determining that they were interlocutory because they 

granted more relief than requested. See Teer, 664 S.W.2d 

702 at 705; Chessher v. Southwestern Bell Tel. Co., 658 

S.W.2d 563, 564 (Tex. 1983). But see Ross v. Arkwright 

Mut. Ins. Co., 834 S.W.2d 385, 393 (Tex. App.--Houston 

[14th Dist.] 1992) (opining that these cases are "in direct 

contravention of TEX. R. CIV. P. 166a(c)" and discussing disagreement in the courts over whether summary

judgment orders granting more relief than requested were 

interlocutory or appealable, but erroneous, judgments), 

rev'd sub. nom. Mafrige, 866 S.W.2d at 590. Thus, 

while the courts were not entirely in agreement, it appears we had already established the rule that a summary 

judgment order granting more relief than requested is not 

interlocutory--it is simply erroneous. For this reason, I 

agree with the Court that if an order actually does dispose of each claim and every party, it is an appealable 

judgment, even if it grants more relief than requested. 

This is consistent with the long-standing rule that if an 

order actually disposes of [**89] all parties and issues, 

it is final for appeal purposes. E.g., Houston Health 

Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 

693 (Tex. 1986). However, consistent with my view that 

we should overrule Mafrige and its progeny and recognize no presumption for or against finality, I do not believe any type of conclusory finality language can ever 

be read to grant more relief than requested by the parties. 

6

6 It would not be enough for a court to generally state "plaintiff takes nothing," "defendant is

granted summary judgment in all things," or "this 

is a final appealable judgment." Conclusory finality clauses (i.e. "magic language") do not indicate

that a trial court actually granted relief not requested for or against parties or issues are not 

mentioned in the order. 

We should determine summary judgment finality by 

comparing the live pleadings and the summary judgment 

order. A summary judgment order should only be final if 

it matches the contents of the pleadings. [**90] And, 

as was the law before Bandera, a court of appeals should 

summarily reverse any summary judgment granting more 

relief than requested, without any sua sponte severance 

of some issues while others are remanded. 

Wiping the slate clean by overruling the rules created in Mafrige, Inglish, and Bandera while we study the 

best method of tackling summary judgment finality 

through our formal rule- promulgation process is the 

better solution for several reasons. First, this approach 

strikes a more reasonable balance between the competing 

policies of promoting certainty and preserving parties' 

rights to appellate review. And, under this approach, the 

trial court and the parties drafting summary judgment 

orders would have the burden, and the incentive, to ensure that the pleadings, summary judgment motions, and 

the summary judgment orders match. If a premature appeal is taken, the court of appeals need only compare the 

pleadings, motions, and order. If the order does not dispose of parties or issues raised in the pleadings, then it is 

interlocutory and the court must dismiss the appeal. 

7

 If 

the order explicitly [*218] disposes of issues and parties not raised in the motion, [**91] it is erroneous and 

the court must reverse the entire order. 

7 Of course, this procedure would not apply if 

the order fell within the category of cases for 

which there can be more than one final judgment, 

or the category of orders for which a court of appeals has been granted statutory authority to review interlocutory orders. 

Most importantly, this approach alters the consequences of poorly-drafted orders. Specifically, the consequence flowing from a poorly drafted order becomes 

the risk of a premature appeal rather than an untimely

one. This eliminates the greatest risk Mafrige created--that an interlocutory order, contrary to the trial 

court's and (at least one party's) intent, will be fictitiously 

made final, starting the appellate and plenary power 

timetables even while the litigation continues. No one 

would argue that conducting a trial after the trial court's 

plenary power has expired is not a waste of judicial resources. Moreover, because overruling Bandera eliminates the benefits of [**92] a premature appeal, taking 

such an appeal would not be a cost-efficient mistake for 

litigants to make, increasing the incentive to ensure orders are more clearly drafted. If a premature appeal is 

nonetheless taken, it would not create an onerous burden 

for the appellate court. The opposing party need only file 

a brief pointing out that the pleadings, motion, and order 

do not match, leading to automatic remand or dismissal. 

No one disputes that rules governing summary 

judgment finality could be helpful to the bench and bar 

and facilitate judicial efficiency. But history, as well as 

our own precedent, has shown that judicial opinions are 

not the place to achieve this. Any attempt to adhere to 

the Mafrige principle or retain parts of it while rejecting 
Page 21 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

others can only lead to more problems. Instead, this 

Court should overrule Mafrige and its progeny and start 

anew. As the Court even notes, our rules advisory committee is currently studying summary judgment finality. 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *28. Retaining parts 

of Mafrige, Inglish, Bandera as modified by the Court's 

less-than-clear opinion today--only to follow with promulgation of a concurrent finality rule--will only lead 

[**93] to more confusion. 

I agree that the cases here should be reversed. But, 

because the Court refuses to fix the problems its judicial 

rulemaking in Mafrige caused and allow our rulemaking 

process to work, I cannot join the Court's opinion.

IV. RECOMMENDATION 

I recognize that the Supreme Court of Texas Advisory Committee on Rules of Civil Procedure has been

studying the problem of summary judgment finality. It 

has proposed an amendment to Rule 166a of the Texas 

Rules of Civil Procedure: 

(j) Statement of Grounds. An order granting summary judgment must state the ground or grounds on 

which the motion was granted. No judgment may be affirmed on other grounds stated in the motion unless they 

are asserted by appellee in the appellate court as alternative grounds for affirmance. 

I do not believe this proposed amendment goes far 

enough. 

First I would suggest to the committee that they 

consider requiring each summary judgment order specifically identify: (1) the claims each party brings; (2) the 

grounds upon which each party seeks summary judgment; (3) each ground upon which the trial court granted 

summary judgment; and (4) each ground upon which the 

trial court [**94] denied summary judgment. 

This solution is intuitive. In the vast majority of

cases, this formality, rather than including magic language, would provide notice to parties about what has 

actually happened. In practice, this procedure alleviates 

many problems Mafrige's finality rule has caused. 

Under this approach, a summary judgment is not final unless the order specifically identifies each claim for 

relief, the grounds upon which each party seeks summary 

judgment, and the court's disposition [*219] of each 

claim and party. The appellate court's jurisdiction is determined only by looking at whether the trial court rendered an order expressly disposing of all remaining parties and issues. If the trial court errs by omitting certain 

claims or parties from the order, as happened in Lehmann and Harris, it is not a final order for purposes of 

appeal. Under this approach a party never loses its right 

to appeal based upon the finality of a summary judgment 

order that is silent about the party or its claims or that 

sua sponte grants relief no party requested without mentioning the parties or claims--regardless of how clearly it 

states that it is a final judgment disposing [**95] of all 

parties and issues. 

Most significantly, in practice this would lead to 

better drafting and fewer erroneous appeals. Specifically, 

if required to expressly list each ground upon which 

summary judgment is requested, trial courts are not likely to add grounds to their order that the summary judgment motion did not raise. 

Second, I would suggest the committee consider a 

rule requiring that the prevailing party, who is charged 

with drafting the court's order, serve copies on all other 

parties at least ten days before the trial court is to sign 

and enter the order. Consistent with this suggestion, I 

agree with the Court's suggestion that the clerk send 

copies of all the actual signed orders--rather than just a 

postcard indicating that the court has signed an order. 

The majority's author criticizes my first recommendation, asserting that there is a "very real risk" that requiring judges to be explicit in their summary judgment 

orders would result in "thousands of judgments intended 

to be final . . . remaining interlocutory." 39 S.W.3d 191, 

2001 Tex. LEXIS 6, *55. He contends that "this is precisely what has happened in the federal system even

though the federal rules impose far fewer [**96] requirements on final judgments than the dissent would." 

39 S.W.3d 191, 2001 Tex. LEXIS 6, *56. Federal Rule 58, 

to which he refers, requires that all final judgments "be 

set forth on a separate document" and be entered by the 

clerk on the docket. FED. R. CIV. P. 58. 

This criticism only serves to amplify the real dangers of straying outside the summary judgment context 

in these cases. How finality of different types of judgments is determined must be governed by the nature of 

the judgment. Houston Health Clubs, Inc., 722 S.W.2d 

at 693 ("In determining whether a judgment is final, different presumptions apply depending on whether the 

judgment follows a conventional trial on the merits or 

results from default or a motion for summary judgment."). Cognizant of this, my recommendation, unlike 

Federal Rule 58, is limited to summary judgment finality. 

The live pleadings define the issues in a case. The

issues tried do not always mirror these pleadings. See 

Vance v. Wilson, 382 S.W.2d 107, 108 (Tex. 1964). 

Nonetheless, we have repeatedly recognized that a presumption should exist that all issues presented by the 

pleadings are disposed of in a conventional trial on 

[**97] the merits. See Aldridge, 400 S.W.2d at 897-98; 

Vance, 382 S.W.2d at 108. This presumption can be rebutted by a contrary showing in the record. See Richey v. 

Bolerjack, 589 S.W.2d 957, 959 (Tex. 1979). But absent 
Page 22 

39 S.W.3d 191, *; 2001 Tex. LEXIS 6, **; 

44 Tex. Sup. J. 364 

such a rebuttal, this presumption prevents judgments 

from languishing after trial based solely on variations in 

the pleadings and judgment. This presumption has saved 

us from the types of problems the federal system has 

experienced. 

However, we sensibly limited this presumption to 

judgments "not intrinsically interlocutory in character." 

Aldridge, 400 S.W.2d at 897. We have also explained 

that summary judgments are intrinsically interlocutory 

and thus they should not be presumed final. Houston 

Health Clubs, Inc., 722 S.W.2d at 693. Thus, there is 

nothing illogical about requiring that finality language be 

explicit. And I respectfully disagree that my recommendation, limited to summary judgments, will cause such 

[*220] major havoc in the court system. Further, I believe the additional formality in this context is worth the 

certainty and protections such a rule provides. 

V. CONCLUSION

 [**98] In Texas, the test for determining summary

judgment finality has always been whether the judgment 

disposes of all parties and all issues raised in the pleadings. In Mafrige we created a legal fiction to simplify the 

process of determining finality. But Mafrige created 

more problems than it solved. It is beyond me why the 

Court insists on struggling through pages and pages of 

history about presumptions, magic language, and Mother 

Hubbard clauses instead of squarely considering the

problems Mafrige caused and providing a solution. Its 

willingness to cling to this legal fiction, while refusing to 

recognize that our rulemaking in Mafrige and its progeny 

was not the correct solution, will only create more problems. 

I concur in the judgment in these cases. But, because 

the Court declines to overrule Mafrige, Inglish, and 

Bandera, and await our promulgation of a rule governing 

summary judgment finality, I do not concur in its reasoning. 

James A. Baker, Justice 

February 1, 2001 
Page 1 

Positive 

As of: Mar 30, 2015 

LEJ DEVELOPMENT CORPORATION AND L.E. JOWELL, JR., APPELLANTS 

v. SOUTHWEST BANK, APPELLEE 

NO. 02-12-00088-CV 

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH 

407 S.W.3d 863; 2013 Tex. App. LEXIS 9193

July 25, 2013, Delivered 

PRIOR HISTORY: [**1] 

 FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY. 

COUNSEL: FOR APPELLANT: THOMAS M. 

MICHEL, ROBLEY E. SICARD, GRIFFITH, JAY & 

MICHEL, LLP, FORT WORTH, TX. 

FOR APPELLEE: KYLE T. GRAY, POPE, HARDWICKE, CHRISTIE, SCHELL, KELLY & RAY, L.L.P., 

FORT WORTH, TX. 

JUDGES: PANEL: GARDNER, MEIER, and GABRIEL, JJ. 

OPINION BY: ANNE GARDNER 

OPINION 

 [*865] I. Introduction 

By this restricted appeal, Appellants LEJ Development Corporation (LEJ) and L.E. Jowell, Jr. (Jowell Jr.) 

seek reversal of the trial court's September 22, 2011 default judgment against them and in favor of Appellee 

Southwest Bank. Appellants argue in one issue that the 

trial court erred by rendering default judgment because 

service of citation was allegedly defective. We affirm. 

II. Background 

Southwest Bank filed suit against Appellants on 

August 10, 2011, alleging that LEJ had defaulted on a 

promissory note and that Jowell Jr. was liable on the note 

as guarantor. Citations were prepared for service, one 

directed to L.E. Jowell, Jr. and the other to LEJ Development Corporation by and through L.E. Jowell, Jr. The 

officer's returns reflect that both citations were personally served on August 18 on "L.E. Jowell," not on "L.E. 

Jowell, Jr." The returns were filed with the court on August 22. 

On September 19, Southwest Bank filed a motion to 

amend the returns and a motion for default judgment. 

Two amended officer's returns, each signed by the constable, were attached as exhibits [**2] to the motion to 

amend. The amended returns stated that L.E. Jowell, Jr. 

was the person on whom the constable had effectuated 

service of the citations to LEJ and Jowell Jr. on August 

18. 

On September 22, the trial court ordered that each of 

the original returns was "[t]hereby amended to reflect 

that Defendant L.E. Jowell, Jr. was served" and that LEJ 

"was served by and through its registered agent, L.E. 

Jowell, Jr." The trial court further ordered that the 

amended returns attached to Southwest Bank's motion to 

amend "should be and [were t]hereby authorized to be 

filed among the papers" of the case. Also on September 

22, the trial court signed the "Final Default Judgment" 

against LEJ and Jowell Jr. The trial court's handwritten 

docket sheet reflects that the court signed the order 
Page 2 

407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, ** 

granting amendment of the returns before signing the 

default judgment. The amended returns were subsequently filed with the trial court clerk on October 3. 

On December 7, 2011, Appellants filed a motion to 

fix date of notice and for new trial in which they claimed 

to have first acquired actual notice of the judgment on 

November 11, 2011. In an affidavit dated December 6, 

2011, Jowell Jr. averred that he had [**3] incorrectly 

believed that Southwest Bank had to collect its debt from 

someone else before it could execute against his personal 

assets and that his misunderstanding led Appellants to 

not file an answer. Jowell Jr. also stated in the affidavit 

[*866] that he was misled into signing the loan documents at issue. Appellants later withdrew their motion to 

fix date of notice and for new trial, stating in open court 

their intention to instead rely upon their motion to dismiss for lack of jurisdiction. The trial court conducted a 

hearing on Appellants' motion to dismiss for lack of jurisdiction on February 2, 2012, and denied the motion. 

This restricted appeal followed. 

III. Discussion 

Appellants argue in one issue that the trial court 

erred by rendering default judgment against them because they were not properly served. Within their sole 

issue, Appellants contend that rule of civil procedure 118

requires notice to the defendant before amending returns, 

that the returns were not properly amended because they 

were not filed with the court prior to the judgment, that 

allowing amendment of the returns resulted in material 

prejudice to Appellants' substantial rights, and that the 

amended returns should [**4] have been but were not 

attached to the original citations. 

A. Standard of Review 

In a restricted appeal, our review is limited to error 

that appears on the face of the record. Fid. & Guar. Ins. 

Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 

2006). When a default judgment is attacked by restricted

appeal, we do not indulge any presumptions in favor of 

valid issuance, service, or return of service. Reed Elsevier, Inc. v. Carrollton--Farmers Branch Indep. Sch. 

Dist., 180 S.W.3d 903, 905 (Tex. App.--Dallas 2005, pet. 

denied). Strict compliance with the procedural rules 

governing citation and return of service must affirmatively appear on the record if the default judgment is to 

withstand direct attack. Primate Constr., Inc. v. Silver, 

884 S.W.2d 151, 152 (Tex. 1994). Failure to show strict 

compliance on the face of the record renders any attempted service invalid and requires that we set aside the 

default judgment. Reed Elsevier, Inc., 180 S.W.3d at 

905-06. But "strict compliance with the rules does not 

require 'obeisance to the minutest detail.'" Williams v. 

Williams, 150 S.W.3d 436, 443-44 (Tex. App.--Austin

2004, pet. denied). As long as the record as a whole 

shows that the citation [**5] was served on the defendant, service of process will not be invalidated. Id. at 444. 

Whether service strictly complied with the rules is a 

question of law that we review de novo. Furst v. Smith, 

176 S.W.3d 864, 869-70 (Tex. App.--Houston [1st Dist.] 

2005, no pet.). 

B. Rule of Civil Procedure 118 

1. Notice of Amendment to Returns of Service 

Appellants first argue that the trial court erred by allowing amendment of the returns of service without giving them notice of the proposed amendment. Specifically, Appellants contend that rule of civil procedure 118

"requires that a defendant receive notice of a request to 

the trial court to amend a return of service." 

Rule of civil procedure 118 states: 

 

 At any time in its discretion and upon 

such notice and on such terms as it deems 

just, the court may allow any process or 

proof of service thereof to be amended, 

unless it clearly appears that material 

prejudice would result to the substantial 

rights of the party against whom the process issued. 

 

Tex. R. Civ. P. 118 (emphasis added). 

Appellants cite several cases to support their argument that "Texas cases support the argument that notice 

to a defendant is required before a court may enter an 

order amending [**6] a return in that the cases addressing an amended return and a default [*867] 

judgment almost all have notice to a defendant." But 

there is no holding within those cases that notice is always required, and the mere mention of notice to a defendant in a particular case does not mean that notice is 

always required. For example, one case cited by Appellants involved a bill of review filed months after the default judgment. The court of appeals merely noted that 

"after notice and hearing, the court below signed an order 

permitting the officer's return to be amended pursuant to 

Rule 118 of the Texas Rules of Civil Procedure." Walker 

v. Brodhead, 828 S.W.2d 278, 281 (Tex. App.--Austin

1992, writ denied) (holding trial court had jurisdiction 

twenty-two months after default judgment was final to 

order amendment of return of service). Notice was not at 

issue in that case. Each of Appellants' other cited authorities made similar, passing references to notice to the 

defendant, but none held that notice is always required 

before a return of service may be amended.1 See Higginbotham v. General Life & Acci. Ins. Co.., 796 S.W.2d 
Page 3 

407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, ** 

695, 696-97 (Tex. 1990) (discussing trial court amendment of return during hearing [**7] on defendants' motion for new trial); Gonzalez v. Tapia, 287 S.W.3d 805, 

807-09 (Tex. App.--Corpus Christi 2009, pet. denied)

(holding trial court did not err by granting Tapia's motion 

to amend proof of service during pendency of Gonzalez's 

petition for bill of review); Employer's Reinsurance 

Corp. v. Brock, 74 S.W.2d 435, 437 (Tex. Civ. 

App.--Eastland 1934, writ dism'd) (noting that trial court 

permitted amendment of return during hearing on defendant's motion to set aside judgment). 

1 We also note that, in a slightly different context, a defendant who has neither filed an answer 

nor appeared in a case is not entitled to notice of

a hearing before a court can properly render default judgment because the defendant "received 

all the notice to which it was entitled when it was

originally served with process." Cont'l Carbon 

Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 

188-89 (Tex. App.--Dallas 2000, pet. denied); see 

Long v. McDermott, 813 S.W.2d 622, 624 (Tex. 

App.--Houston [1st Dist.] 1991, no writ). 

On its face, rule 118 gives the trial court discretion 

to determine the notice and terms of notice the trial court 

"deems just" in a particular case, see Tex. R. Civ. P. 118, 

and our sister court [**8] has held that a trial court did 

not err by not requiring notice to the defendant of an 

amendment. See Bavarian Autohaus, Inc. v. Holland, 

570 S.W.2d 110, 113 (Tex. Civ. App.--Houston [1st Dist.] 

1978, no writ) (discussing rule 118 and holding that trial 

court did not err "in not requiring that notice of the 

amendment be given to Bavarian Autohaus"). We therefore overrule Appellants' contention that rule 118 always 

requires notice to a defendant before a return of service 

may be amended. Rather, the trial court has discretion to 

require notice or to permit amendment without notice. 

Tex. R. Civ. P. 118; see Bavarian Autohaus, 570 S.W.2d 

at 113. Thus, we cannot conclude that there is error apparent on the face of the record based on the lack of notice to Appellants before the returns were amended.

2. Amended Returns Relate Back to Original Returns 

Appellants also argue that the default judgment must 

be set aside because the amended returns of service were 

not filed before the trial court rendered the default judgment. But Appellants do not cite any authority that requires the amended returns to be filed before rendition of 

the default judgment. The record is clear in this case that 

the returns [**9] were amended before judgment, and 

the Texas Supreme Court has held that the trial court 

may enter a postjudgment order granting amendment of a 

return of citation [*868] pursuant to rule 118 while the 

trial court retains plenary power. Higginbotham, 796 

S.W.2d at 696 (holding recitation in order denying defendants' motions for new trial after default judgment 

and while trial court retained plenary power, indicating 

service was proper, was tantamount to order amending 

the return of citation under rule 118 to reflect service 

during normal business hours at defendants' home offices, thus reflecting proper service); see also Dawson v. 

Briggs, 107 S.W.3d 739, 745 (Tex. App.--Fort Worth 

2003, no pet.) (holding return properly amended while 

trial court retained plenary power although defendant had 

already perfected appeal from default judgment); Mylonas v. Tex. Commerce Bank--Westwood, 678 S.W.2d 

519, 521-22 (Tex. App.--Houston [14th Dist.] 1984, no 

writ) (upholding default judgment following postjudgment amendment of return of service to show service at 

correct address). 

The record is clear that the trial court in this case 

amended the returns before it rendered the default judgment. Although the trial [**10] court signed both the 

order authorizing amendment and the default judgment 

on September 22, 2011, the trial court's handwritten 

docket sheet reflects that the court signed the order expressly amending the returns before signing the final 

default judgment.2

 Moreover, the default judgment itself 

references the amended returns. And to the extent Appellants argue that the amended returns had not been on 

file for ten days prior to entry of the default judgment, 

"[t]he law is clear that when a return is amended under 

Rule 118, the amended return relates back and is regarded as filed when the original return was filed." Walker, 

828 S.W.2d at 282 (citing Higginbotham, 796 S.W.2d at 

696-97); Bavarian Autohaus, 570 S.W.2d at 113; 

Lafleaur v. Switzer, 109 S.W.2d 239, 241 (Tex. Civ.

App.--Beaumont 1937, no writ); Employer's Reinsurance 

Corp., 74 S.W.2d at 438. That an amended return relates 

back to the filing date of the original return satisfies the 

requirement that a return of service be on file for at least 

ten days before entry of judgment. Walker, 828 S.W.2d at 

282; see Tex. R. Civ. P. 107; Bavarian Autohaus, 570 

S.W.2d at 113. The original returns were filed with the 

trial court on August [**11] 22, 2011, were on file for 

more than ten days before the trial court rendered the 

default judgment on September 22, 2011, and the 

amended returns relate back to the August 22, 2011 filing date for the original returns. Walker, 828 S.W.2d at 

282. 

2 In addition, the amended returns were signed 

by the constable on September 15, 2011, and 

were filed with the trial court on September 19, 

2011, as exhibits to Southwest Bank's motion to 

amend the returns. 

3. No Material Prejudice to Substantial Rights 
Page 4 

407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, ** 

Appellants also argue that the order allowing 

amendment of the returns materially prejudiced their 

substantial rights. In that regard, rule of civil procedure 

118 does not permit amendment of returns of service if

"it clearly appears that material prejudice would result to 

the substantial rights of the party against whom the process issued." Tex. R. Civ. P. 118. Appellants' argument, 

however, is only that "[i]n this case, clearly material 

prejudice occurred to the substantial rights of the party 

served. Notably, the Appellants' right to appeal a case on 

which they have meritorious defenses has been materially prejudiced by the entry of the order allowing the 

amendment of the returns." Appellants [**12] do not 

explain how the trial court's order amending the returns 

materially prejudiced their substantial rights, and we note 

that two courts have [*869] held that a defendant's 

substantial rights are not materially prejudiced when the 

amended return corrects only a minor defect in the original return of citation. See Mylonas, 678 S.W.2d at 

522-23 (holding Mylonas not prejudiced by amendment 

showing service at address on Memorial Drive rather

than Memorial Way); see also Walker, 828 S.W.2d at 

282 (holding Walker not prejudiced by amendment to 

show citation left with person over sixteen and to allow 

verification of facts shown on return). Appellants do not 

dispute that L.E. Jowell, Jr. was served with the citations 

on August 18, 2011, or that the returns of service, as 

amended, reflect the true facts of service. Under these 

circumstances, Appellants have not shown an error on 

the face of the record that would require the default 

judgment to be set aside. 

C. Rule of Civil Procedure 107 

Appellants asserted at oral argument and contend in

their supplemental brief that the default judgment must 

be set aside because the amended returns were not attached to the citations or verified as required by rule of 

civil procedure 107. [**13] Rule of civil procedure 107

was amended effective January 1, 2012, but the version 

of Rule 107 applicable to this case stated in relevant part 

as follows: 

 

 The return of the officer or authorized 

person executing the citation shall be endorsed on or attached to the same; it shall 

state when the citation was served and the 

manner of service and be signed by the 

officer officially or by the authorized 

person. The return of citation by an authorized person shall be verified. . . . 

 

Tex. R. Civ. P. 107, 733-34 S.W.2d XLV (1988, amended 1990) (hereinafter Former Tex. R. Civ. P. 107).3

3 The current version of Rule 107 states that 

the return of service "may, but need not, be endorsed on or attached to the citation." Tex. R. Civ. 

P. 107(a). 

As to Appellants' contention that the amended returns are defective because they were not verified, the 

plain language of former rule 107 required verification 

only when the return of citation was signed by an authorized person, not when the return was signed by an 

officer. Id.; Myan Mgmt. Grp., L.L.C. v. Adam Sparks 

Family Revocable Trust, 292 S.W.3d 750, 752 (Tex. 

App.--Dallas 2009, no pet.). The rule did not require that 

an officer verify his or her signature. [**14] Former 

Tex. R. Civ. P. 107; see Myan Mgmt. Grp., 292 S.W.3d at 

752-53. The constable who signed the returns and 

amended returns in this case was therefore not required 

to have his signature verified. 

Appellants also contend that the amended returns 

were not "endorsed on or attached to" the original citations, thereby rendering service defective. Appellants 

rely on Verlander Enters., Inc. v. Graham, 932 S.W.2d 

259, 262 (Tex. App.--El Paso 1996, no writ). Verlander

is distinguishable because the trial court's order that authorized amendment of the return of service in that case 

did not amend the return by its own terms but authorized 

the plaintiff to "have the return . . . corrected so as to 

conform to law [and to] withdraw the citation and forward it to the Sheriff of El Paso County, Texas, for 

proper return of citation," which the plaintiff failed to do. 

Id. at 260. Here, the trial court's order not only authorized amendment of the returns but also stated that each 

of the returns of service was "[t]hereby amended to reflect" service on Jowell Jr. and on L.E.J. through Jowell 

Jr. Moreover, unlike the order in Verlander, the trial 

court here did not order that the original citations be 

[**15] [*870] withdrawn from the trial court or forwarded to the sheriff for correction. And because the 

original citations were not withdrawn, the amended returns could not have been attached to or endorsed on the 

original citations because the original citations remained 

on file with the trial court clerk. 

Appellants also rely on a statement from Verlander

that "[a]lthough the second return was intended as an 

amendment of the first return pursuant to Rule 118, we 

do not read Rule 118 to abrogate Rule 107's requirement 

that the return, whether original or amended, be endorsed 

on or attached to the citation." Id. at 262. In addition to 

the foregoing mentioned differences, the court in Verlander noted a final caveat in Higginbotham that its 

holding was restricted to cases in which there is a record 

such as a hearing on a motion for new trial and an order 

expressly amending the return or an order that is tantamount to amending the return of citation. See Verlander, 

932 S.W.2d at 263. The court of appeals in Verlander
Page 5 

407 S.W.3d 863, *; 2013 Tex. App. LEXIS 9193, ** 

pointed out that there was no such hearing nor was there 

an order expressly amending the return or that was tantamount to amendment but that the order merely authorized the plaintiff to [**16] have the sheriff correct the 

return. Id. In this case, there is an order expressly 

amending the return. 

To the extent that the court in Verlander may have 

intended to hold that rule 118 did not override the requirement of former rule 107 that the return, whether 

amended or original, be endorsed on or attached to the 

citation, we respectfully disagree. Former rule 107 did 

not mention amended returns of service. And although 

former rule 107 required that a return of service be on 

file for at least ten days before the trial court could 

properly render default judgment, see Former Tex. R. 

Civ. P. 107,

4

 Texas courts for decades have held that a 

return amended under rule 118 relates back to and is 

regarded as filed when the original return was filed. See 

Walker, 828 S.W.2d at 282. Thus, a trial court could 

properly render default judgment when the original return had been on file for at least ten days even though the 

amended return had not. Id.; see Higginbotham, 796 

S.W.2d at 696-97; Bavarian Autohaus, 570 S.W.2d at 

113; Employer's Reinsurance Corp., 74 S.W.2d at 438; 

see also Kubovy v. Cintas Corp., No. 01-02-00521-CV, 

2003 Tex. App. LEXIS 4824, 2003 WL 21299938, at *3 

(Tex. App.--Houston [1st Dist.] June 5, 2003, no pet.) 

[**17] (mem. op.) ("[I]t has long been the law in Texas 

that the original and amended returns are read as one 

document."). In other words, when a return is amended 

under rule 118, the provisions of rule 118 control over 

any potentially conflicting provisions of former rule 107. 

Given that Texas courts hold that rule 118 takes precedence over former rule 107 in that context, it does not 

follow that rule 118 would not take precedence in this 

context. Rather, it is sufficient that the initial return was 

endorsed on or attached to the original citation because 

the amended return relates back to the original return and 

because the original and amended returns are read together as one document. See Higginbotham, 796 S.W.2d 

at 696-97; Walker, 828 S.W.2d at 282; Bavarian Autohaus, 570 S.W.2d at 113; Employer's Reinsurance Corp., 

74 S.W.2d at 438; see also Kubovy, 2003 Tex. App. 

LEXIS 4824, 2003 WL 21299938, at *3. 

4 The current version of rule 107 contains the 

same ten-day requirement. See Tex. R. Civ. P. 

107(h). 

The original returns of service in this case were endorsed on the citations themselves, and the amended

returns relate back to and are read together with the 

[*871] original returns. We hold that the amended returns of service [**18] in this case are not defective on 

the ground that they are not endorsed on or attached to 

the citation. We overrule Appellants' sole issue. 

IV. Conclusion 

Having overruled LEJ and Jowell Jr.'s sole issue, we 

affirm the trial court's judgment. 

ANNE GARDNER 

JUSTICE 

PANEL: GARDNER, MEIER, and GABRIEL, JJ. 

DELIVERED: July 25, 2013 
| | Positive

As of: April 7, 2015 5:52 PM EDT

Lucas v. James Jolly Clark & Eonic Creations

Court of Appeals of Texas, Third District, Austin

June 15, 2011, Filed

NO. 03-10-00474-CV

Reporter

347 S.W.3d 800; 2011 Tex. App. LEXIS 4600

C. Michael Lucas, Appellant v. James Jolly Clark &

Eonic Creations, Inc., Appellees

Subsequent History: Petition for review denied by

Clark v. Lucas, 2011 Tex. LEXIS 913 (Tex., Dec. 2,

2011)

Prior History: [**1] FROM THE DISTRICT COURT OF

TRAVIS COUNTY, 200TH JUDICIAL DISTRICT. NO.

D-1-GN-10-001068, HONORABLE LORA J.

LIVINGSTON, JUDGE PRESIDING.

Disposition: Affirmed in Part; Reversed and Remanded

in Part.

Core Terms

request for admission, damages, unliquidated damages,

default judgment, admissions, lost profits, deemed

admitted, awards, trial court, admit, cause of action,

sweepingly, pet

Case Summary

Procedural Posture

Appellees, a company and its founder, sued appellant

investor for breach of contract and other tort claims. The

District Court of Travis County, 200th Judicial District

(Texas), issued a default judgment in favor of appellees

and awarded them unliquidated damages. The investor

appealed.

Overview

Appellees sued the investor for various torts and breach

of contract, and were awarded damages under a default

judgment. The court affirmed the issuance of a default

judgment, but reversed that portion of the judgment that

awarded damages, and remanded. Appellees' request

for admission was akin to a request that the investor

admit all allegations, including those concerning

damages, as true, but such sweeping requests could

not be deemed judicial admissions or provide any

evidence to support a trial court's damages award, for

purposes of Tex. R. Civ. P. 243. Relying on an embedded

request for admission that precluded any presentation

of evidence on unliquidated damages undermined Rule

243. No objection was necessary to reach the merits of

the issue because the question was one of evidentiary

sufficiency. As no evidence other than this request for

admission existed supporting appellees' claims for

unliquidated damages or proving the foreseeability of

the damages, the evidence was insufficient to support

the default judgment's unliquidated damages award.

Outcome

The court affirmed the issuance of a default judgment,

but reversed that portion of the default judgment that

awarded unliquidated damages. The court remanded

for further proceedings.

LexisNexis® Headnotes

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

Civil Procedure > Remedies > Damages > Monetary

Damages

Contracts Law > ... > Measurement of Damages >

Foreseeable Damages > Lost Profits

HN1 When a no-answer default judgment is rendered,

the defendant's liability for all causes of action pleaded

is conclusively established and all allegations of fact set

forth in the petition are deemed admitted, except the

amount of unliquidated damages. After a default

judgment occurs, unliquidated damages, that is,

damages not expressly provided for within a written

instrument, must be proven to the trial court. Tex. R. Civ.
P. 243. Recovery for unliquidated damages in the form

of lost profits requires that the injured party do more

than show that it suffered some lost profits. The amount

of the loss must be shown by competent evidence with

reasonable certainty. To meet this

reasonably-certain-evidence standard, opinions or

estimates of lost profits must, at a minimum, be based

on objective facts, figures, or data from which the

amount of lost profits can be ascertained.

Civil Procedure > Remedies > Damages > Monetary

Damages

HN2 See Tex. R. Civ. P. 243.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > Effect of Admissions

Evidence > Types of Evidence > Judicial Admissions >

Effects

HN3 Generally, when a party fails to respond to a

request for admission, either by timely answer, written

objection, or motion to file late answers, the facts

contained in the request are deemed admitted.

Admissions, once deemed admitted, are judicial

admissions and may not be contradicted.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > General Overview

HN4 The primary purpose of requests for admissions is

to simplify trials by eliminating matters about which

there is no real controversy. They were never intended

to be used as a demand upon a plaintiff or defendant to

admit that he had no cause of action or ground of

defense. Courts have cautioned that litigants should not

be allowed to use requests for admissions as a tool to

trap their opposition.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > Content & Form of Admissions

Constitutional Law > ... > Fundamental Rights > Procedural

Due Process > Scope of Protection

HN5 The rule regarding requests for admissions was

designed, not as a trap to prevent the presentation of

the truth in a full hearing but as a tool for the fair

disposition of litigation with a minimum of delay. When a

party uses deemed admissions to try to preclude

presentation of the merits of a case, however, due

process concerns may arise. Due process is the guiding

rule and principle that applies when requests for

admissions are not used as intended, and when a party

uses deemed admissions to try to preclude presentation

of the merits of a case. Therefore, overly broad,

merits-preclusive requests for admissions are improper

and may not result in deemed admissions. A request is

improper and will not be deemed admitted where the

party requests that the opposing party admit or deny

every allegation made in petition. Sweepingly broad

requests for admission may not result in deemed

admissions.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > Content & Form of Admissions

Civil Procedure > Remedies > Damages > Monetary

Damages

HN6 Tex. R. Civ. P. 243 requires that, in unliquidated

causes of action, the court shall hear evidence as to

damages and shall render judgment therefor. Tex. R.

Civ. P. 243. Relying on an embedded request for

admission that precludes any presentation of evidence

on unliquidated damages undermines the spirit of Rule

243 and is not consistent with its purpose. Requests for

admission were simply not meant to be used to wholly

preclude a defendant from presenting his defense. This

is particularly true in the context of the heightened

evidentiary standard required to prove lost profits. The

reasonably-certain-evidence standard requires that

estimates of lost profits be based on facts, figures, or

data. Such estimates must be founded in objective facts

and cannot be generic or conclusory in nature.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > Objections to Requests for Admissions

HN7 See Tex. R. Civ. P. 193.1.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > Objections to Requests for Admissions

HN8 It is true that typically any challenge to a request

for admission must be in compliance with Tex. R. Civ. P.

193.1. The question of a deemed admission's

overbreadth only arises when a request for admission

has been deemed admitted, which, by definition, occurs

after a party has failed to timely respond or object to the

request. No request for admission would be deemed

admitted if the responding party had objected in writing

within the parameters of Rule 193.1. Therefore, were

the court to require a party to object in writing to a

request for admission's overbreadth in order to preserve

the issue on appeal, no appellate court would ever face

the issue. Several other courts of appeals have,

however, squarely addressed whether a "sweepingly

347 S.W.3d 800, *800; 2011 Tex. App. LEXIS 4600, **1

Page 2 of 7
broad" request for admission may become a deemed

admission when a party fails to respond. In addressing

this issue, none of these courts concluded that a Rule

193.1 objection was required.

Civil Procedure > ... > Methods of Discovery > Requests

for Admissions > Content & Form of Admissions

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Preservation for Review

Civil Procedure > ... > Standards of Review > Substantial

Evidence > Sufficiency of Evidence

HN9 In viewing the effect of an overly broad request for

admission, the court's analysis centers on whether a

trial court is permitted to find that the request for

admission irrefutably established the facts therein such

that no additional evidence is required. In other words,

the issue before the court concerns whether an overly

broad request for admission, deemed true by the trial

court, would be legally sufficient evidence to support a

trial court's judgment for unliquidated damages. A

sufficiency of the evidence question does not require an

objection at the trial court to be heard on appeal. Tex. R.

App. P. 33.1(d) provides that the insufficiency of

evidence complaint may be made for first time on

appeal.

Contracts Law > ... > Damages > Types of Damages >

Consequential Damages

Contracts Law > ... > Measurement of Damages >

Foreseeable Damages > General Overview

HN10 Consequential damages may not be recovered

unless they are foreseeable and traceable to the

wrongful act and result from it.

Civil Procedure >Appeals > Standards of Review > General

Overview

HN11 Tex. R. App. P. 47.1 states that the court of

appeals must only address issues necessary to final

disposition of appeal.

Counsel: For Appellant: Mr. Barry K. Bishop, Clark,

Thomas & Winters, PC, Austin, TX.

For Appellees: Mr. D. Todd Smith, Smith Law Group,

PC, Austin, TX.

Judges: Before Chief Justice Jones, Justices Henson

and Goodwin.

Opinion by: Diane M. Henson

Opinion

[*801] Eonic Creations, Inc. and its founder, James

Jolly Clark, (collectively, the "Appellees") sued investor

C. Michael Lucas for breach of contract and various

claims of tortious conduct. When Lucas failed to respond

to the Appellees' petition, the trial court issued a default

judgment in favor of the Appellees and awarded

unliquidated damages of $75,000 to James Jolly Clark

and $9,925,000 to Eonic Creations. Lucas appeals,

claiming that the absence of a reporter's record from the

default judgment hearing deprived Lucas of the ability

to review the trial court's awards, that the trial court's

unliquidated damages awards are not supported by

sufficient evidence, and that the use of requests for

admissions embedded within a petition to support the

no-answer default judgment awards of unliquidated

damages was "inappropriate" and undermined Texas

Rule of Civil Procedure 243. We affirm the issuance of

the default judgment, reverse that portion [**2] of the

default judgment awarding unliquidated damages, and

remand the case to the trial court for further proceedings

consistent with this opinion.1

BACKGROUND

On April 2, 2010, the Appellees sued Lucas for breach

of contract, misappropriation of trade secrets, unjust

enrichment, conversion, and aiding and abetting Eonic

Creations' officers and employees in violating their

fiduciary duties to the company. In their petition, the

Appellees claimed that Lucas entered into a contract

with Clark and promised to pay $60,000 to Clark for

personal debts and $15,000 to Eonic Creations for

certain patent rights to Eonic Creations' products.

According to the Appellees' petition, Lucas also

contracted to make a good faith effort to obtain a

$600,000 small-business loan to further the business

interests of Eonic Creations. The Appellees allege that

Lucas failed to pay either sum of money and [*802] did

not make a good faith effort to obtain the promised loan.

In addition, the Appellees contend that Lucas enticed

Robert Clark, CEO and acting president of Eonic

Creations, and Paul Morganstern, engineer for Eonic

Creations, to leave Eonic [**3] Creations and form a

new company with Lucas using Eonic Creations'

products and trade secrets. In their petition, the

1 We also grant Lucas's pending motion to withdraw and substitute counsel.

347 S.W.3d 800, *800; 2011 Tex. App. LEXIS 4600, **1

Page 3 of 7
Appellees sought injunctive relief and damages,

including specific performance of Lucas's contractual

obligations, compensatory damages, consequential

damages of over $10 million in lost profits and loss of

reputation, punitive damages, and attorney's fees and

expenses.

TheAppellees incorporated two requests for admissions

into their original petition. The requests for admissions

were as follows:

Request forAdmission 1: The contract attached

to this petition as ExhibitA is a true and accurate

copy of the contract that you signed and entered

into on or about May 22, 2009.2

Request for Admission 2: As a proximate result

of your breaching the contract made the basis

of this suit, the Plaintiffs have suffered

consequential damages in an amount not less

than ten million dollars.

Lucas did not file an answer to the petition nor did he

respond to the requests for admissions.3

On June 23, 2010, the Appellees filed a motion for

default judgment, claiming that Lucas's failure to

respond to Request for Admission 2 constituted a

deemed admission that Lucas's contractual breach

caused the Appellees damages in the amount of $10

million. Appellees also attached an affidavit by their trial

counsel averring that Lucas never served an answer on

theAppellees and identifying reasonable and necessary

attorney's fees. After "reviewing the Officers Return

filed May 25, 2010 and considering the pleadings and

official records on file including Plaintiff's Motion for

Default Judgment as well as any evidence and

arguments," the trial court issued a default judgment

granting a permanent injunction and ordering Lucas to

pay $75,000 in "actual damages" plus court costs,

attorney's fees, and pre- and post-judgment interest to

Clark and $9,925,000 in "actual damages" plus preand post-judgment interest to Eonic Creations. Lucas

did not file a motion for new trial, but filed a notice of

appeal.

Lucas does not appeal the trial court's finding of

[**5] liability, nor does he appeal the injunction against

him or the attorney's fees and court costs awarded.4

Lucas's only arguments on appeal involve the trial

court's awards of unliquidated "actual damages,"

totaling $75,000 to Clark and $9,925,000 to Eonic

Creations.

In three issues on appeal, Lucas argues that (1) the

absence of a reporter's record from the default judgment

hearing deprived Lucas and this Court of the ability to

adequately review the trial court's damages awards, (2)

the trial court's damages awards are not supported by

legally and factually sufficient evidence, and (3)

supporting a no-answer default judgment's unliquidated

damages award with requests for admissions

embedded in a petition is [*803] "inappropriate" and

undermines Texas Rule of Civil Procedure 243.

DISCUSSION

HN1 When a no-answer default judgment is rendered,

the defendant's liability for all causes of action pleaded

is conclusively established and all allegations of fact set

forth in the petition are deemed admitted, except the

amount of unliquidated damages. Dolgencorp of Tex.,

Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) [**6] (per

curiam); Texas Commerce Bank, N.A. v. New, 3 S.W.3d

515, 516 (Tex. 1999) (per curiam). After a default

judgment occurs, unliquidated damages, i.e., damages

not expressly provided for within a written instrument,

must be proven to the trial court. See Tex. R. Civ. P.

243.

5 Recovery for unliquidated damages in the form of

lost profits, as the Appellees have requested here,

requires that the injured party do more than show that it

suffered some lost profits. The amount of the loss must

be shown by competent evidence with reasonable

certainty. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d

2

Though the request for admission indicates that a copy of the contract was attached to the original petition, no copy of the

contract exists in the appellate record.

3

The Appellees also included requests [**4] for disclosure, interrogatories, and requests for production in their petition.

Lucas did not respond to any of these discovery requests.

4

Lucas represented in his brief that a bill of review is pending in the district court alleging that Lucas was never served with

citation.

5 HN2 "If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to

damages and shall render judgment therefor . . . ." Tex. R. Civ. P. 243.

347 S.W.3d 800, *802; 2011 Tex. App. LEXIS 4600, **3

Page 4 of 7
80, 84 (Tex. 1992). To meet this

reasonably-certain-evidence standard, opinions or

estimates of lost profits must, at a minimum, be based

on objective facts, figures, or data from which the

amount of lost profits can be ascertained. Id.

The Appellees rely solely on Request for Admission 2,

which was embedded in their petition, to prove that they

suffered $10 million dollars of unliquidated damages in

the [**7] form of lost profits. Request for Admission 2

stated: "As a proximate result of your breaching the

contract made the basis of this suit, the Plaintiffs have

suffered consequential damages in an amount not less

than ten million dollars." HN3 Generally, when a party

fails to respond to a request for admission, either by

timely answer, written objection, or motion to file late

answers, the facts contained in the request are deemed

admitted. Oliphant Fin., LLC v. Galaviz, 299 S.W.3d

829, 838 (Tex. App.—Dallas 2009, no pet.); Sherman

Acquisition II LP v. Garcia, 229 S.W.3d 802, 812 (Tex.

App.—Waco 2007, no pet.). Admissions, once deemed

admitted, are judicial admissions and may not be

contradicted. Oliphant Fin., 299 S.W.3d at 837;

Sherman Acquisition, 229 S.W.3d at 812-13. As all of

Lucas's points on appeal are impacted by whether or

not Request for Admission 2, standing alone, can

support the trial court's $10 million default judgment, we

will begin by addressing the purpose behind requests

for admissions.

Purpose of Requests for Admissions

HN4 The primary purpose of requests for admissions is

to "simplify trials by eliminating matters about which

there is no real controversy." Stelly v. Papania, 927

S.W.2d 620, 622 (Tex. 1996) [**8] (citing Sanders v.

Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (Tex. 1950)).

They were never intended to be used as a demand

upon a plaintiff or defendant to admit that he had no

cause of action or ground of defense. Id. Courts have

cautioned that litigants should not be allowed to use

requests for admissions as a tool to trap their opposition.

See Birdo v. Hammers, 842 S.W.2d 700, 701 (Tex.

App.—Tyler 1992, no writ).

HN5 The rule regarding requests for admissions "was

designed, not as a trap to prevent the presentation of

the truth in a full hearing but as a tool for the fair

disposition of litigation with a minimum of delay." Taylor

v. Lewis, 553 S.W.2d 153, 160 (Tex. Civ. App.—Amarillo

1977, writ ref'd n.r.e.). When a party uses deemed

admissions [*804] to try to preclude presentation of the

merits of a case, however, due process concerns may

arise. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex.

2005); In re Rozelle, 229 S.W.3d 757, 764 (Tex.

App.—San Antonio 2007) ("[Due process] is the guiding

rule and principle that applies when requests for

admissions are not used as intended, and when a party

uses deemed admissions to try to preclude presentation

of the merits of a case." (internal quotation marks and

citation [**9] omitted)). Therefore, overly broad,

merits-preclusive requests for admissions are improper

and may not result in deemed admissions. See In re

Estate of Herring, 970 S.W.2d 583, 589 (Tex.

App.—Corpus Christi 1998, no pet.) (holding that

admissions requesting party to "admit [wife] did not

transfer community property . . . without your knowledge

and consent" and "admit you have not been injured in

any manner as a direct result of the alleged acts" were

sweepingly broad and not deemed admitted); Birdo,

842 S.W.2d at 701 (holding that request is improper and

will not be deemed admitted where party requests that

opposing party admit or deny every allegation made in

petition); Powell v. City of McKinney, 711 S.W.2d 69, 71

(Tex. App.—Dallas 1986, no writ) (holding that request

asking plaintiffs to "admit [they] no longer wish to pursue

their cause of action in the above styled and numbered

cause" was sweepingly broad and should not be

deemed admitted); see also LRT Record Servs., Inc. v.

Archer, No. 05-00-00324-CV, 2001 Tex. App. LEXIS

1447, at *2-3 (Tex. App.—Dallas Mar. 7, 2001, no pet.)

(mem. op.) ("[S]weepingly broad requests for admission

may not result in deemed admissions.").

Effect [**10] of Request for Admission 2

The Appellees argue that the conclusory statement

contained in Request for Admission 2 may, as the sole

evidence on the matter, properly support a $10 million

default judgment for lost profits, a damages component

typically requiring an extensive and fact-intensive

inquiry. This request for admission, however, is the type

of overly broad, merits-preclusive request that other

courts have cautioned against. Request for Admission

2, asking Lucas to admit that the Appellees have

suffered $10 million in damages, aimed to eliminate

Lucas's ability to present a defense to the only element

at issue, proof of unliquidated damages. This request is

akin to a request that Lucas admit all allegations made

in the Appellees' petition, including those regarding

damages, as true. Such sweeping requests for

admissions cannot be deemed judicial admissions, see

Birdo, 842 S.W.2d at 701, nor can they provide any

evidence to support a trial court's damages award.

347 S.W.3d 800, *803; 2011 Tex. App. LEXIS 4600, **6

Page 5 of 7
In making this determination, we must also consider

HN6 Texas Rule of Civil Procedure 243, requiring that,

in unliquidated causes of action, the court "shall hear

evidence as to damages and shall render judgment

therefor." Tex. R. Civ. P. 243. [**11] Relying on an

embedded request for admission that precludes any

presentation of evidence on unliquidated damages

undermines the spirit of Rule 243 and is not consistent

with its purpose. Requests for admission were simply

not meant to be used in the way that the Appellees have

used them here, i.e., to wholly preclude a defendant

from presenting his defense. This is particularly true in

the context of the heightened evidentiary standard

required to prove lost profits. The

reasonably-certain-evidence standard requires that

estimates of lost profits be based on facts, figures, or

data. Such estimates must be founded in objective facts

and cannot be generic or conclusory in nature. See Holt

Atherton Indus., Inc., 835 S.W.2d at 84. Considering

this increased evidentiary standard, coupled with Rule

243's requirement that the court hear evidence [*805]

on unliquidated damages, this sweepingly broad request

for admission is not sufficient to constitute conclusive

evidence of the statement that it contains.

Preservation of Issue on Appeal

TheAppellees argue that Lucas waived any objection to

the request for admission when he failed to file a timely

written objection to the response, as required by Rule

193.1. [**12] See Tex. R. Civ. P. 193.1 HN7 ("A party

must make an objection to written discovery in

writing—either in the response or in a separate

document—within the time for response."). While HN8

it is true that typically any challenge to a request for

admission must be in compliance with Rule 193.1, the

facts at issue here present a unique situation. The

question of a deemed admission's overbreadth only

arises when a request for admission has been deemed

admitted, which, by definition, occurs after a party has

failed to timely respond or object to the request. No

request for admission would be deemed admitted if the

responding party had objected in writing within the

parameters of Rule 193.1. Therefore, were we to require

a party to object in writing to a request for admission's

overbreadth in order to preserve the issue on appeal,

no appellate court would ever face the issue. Several

other courts of appeals have, however, squarely

addressed whether a "sweepingly broad" request for

admission may become a deemed admission when a

party fails to respond. See In re Estate of Herring, 970

S.W.2d at 589 (addressing "sweepingly broad" request

for admission despite lack of Rule 193.1 objection);

Birdo, 842 S.W.2d at 701 [**13] (same); Powell, 711

S.W.2d at 71 (same); see also LRT Record Servs., Inc.,

2001 Tex. App. LEXIS 1447, at *2-3 (same). In

addressing this issue, none of these courts concluded

that a Rule 193.1 objection was required.

We agree with our sister courts that no objection was

necessary to reach the merits of the issue in this Court.

This is true because the question before us is one of

evidentiary sufficiency rather than procedural error. HN9

In viewing the effect of an overly broad request for

admission, our analysis centers on whether a trial court

is permitted to find that the request for admission

irrefutably established the facts therein such that no

additional evidence is required. In other words, the

issue before us concerns whether an overly broad

request for admission, deemed true by the trial court,

would be legally sufficient evidence to support a trial

court's judgment for unliquidated damages.A sufficiency

of the evidence question does not require an objection

at the trial court to be heard on appeal. See Tex. R. App.

P. 33.1(d) (insufficiency of evidence complaint may be

made for first time on appeal).

As no evidence other than this request for admission

exists supporting the Appellees' [**14] claims for

unliquidated damages or proving the foreseeability of

such damages, see Mood v. Kronos, 245 S.W.3d 8, 12

(Tex. App.—Dallas 2007, pet. denied) HN10

("[C]onsequential damages may not be recovered

unless they are foreseeable and traceable to the

wrongful act and result from it.") (citing Stuart v. Bayless,

964 S.W.2d 920, 921 (Tex. 1998)), the evidence is

neither legally nor factually sufficient to support the

default judgment's unliquidated damages award. See

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We sustain Lucas's second point on appeal.

Because we agree with Lucas that the evidence is

insufficient to support the trial court's unliquidated

damages award, we need not consider Lucas's first and

third issues. See HN11 Tex. R. App. P. 47.1 (stating that

court of appeals must only address [*806] issues

necessary to final disposition of appeal).

CONCLUSION

Because we hold that the evidence is legally and

factually insufficient to support the trial court's damages

award, we affirm the issuance of the default judgment,

347 S.W.3d 800, *804; 2011 Tex. App. LEXIS 4600, **10

Page 6 of 7
reverse that portion of the default judgment awarding

the Appellees unliquidated damages, and remand the

case for further [**15] proceedings consistent with this

opinion.

Diane M. Henson, Justice

Before Chief Justice Jones, Justices Henson and

Goodwin

Affirmed in Part; Reversed and Remanded in Part

Filed: June 15, 2011

347 S.W.3d 800, *806; 2011 Tex. App. LEXIS 4600, **14

Page 7 of 7
| | Cited

As of: April 7, 2015 5:54 PM EDT

Marquez v. Greig

Court of Appeals of Texas, First District, Houston

August 9, 2012, Opinion Issued

NO. 01-10-01118-CV

Reporter

2012 Tex. App. LEXIS 6551; 2012 WL 3228710

DAVE MARQUEZ, Appellant v. NIKKI GREIG, ON

BEHALF OF TEXAS STARS CHEERLEADING,

Appellee

Prior History: [*1] On Appeal from the 400th District

Court, Fort Bend County, Texas. Trial Court Case No.

09-DCV-176744.

Core Terms

service of process, trial court, certificate, default

judgment, forwarded, face of the record, per curiam,

nonresident, indicates

Case Summary

Procedural Posture

The 400th District Court, Fort Bend County, Texas,

rendered a default judgment in favor of appellee teacher

on behalf of a cheerleading school. Appellant buyer

appealed.

Overview

The buyer argued that the error was apparent on the

face of the record because it showed that the Secretary

of State forwarded the citation and petition to an

incorrect address. The appellate court found that there

were numerous indications in the record that the buyer's

address was "2155 North Fairview," but the Secretary

of State's certificate indicated that the citation and

petition were forwarded to "2155 Northfairview." The

return receipt indicated that the process sent to that

address was "unclaimed." Given the notation on the

return receipt and the multiple indications in the record

that the buyer's actual address differed, if only slightly,

from the address to which the Secretary of State

forwarded service of process, the record did not

affirmatively show strict compliance with the rules

governing service of process.

Outcome

The default judgment was reversed and the case

remanded for further proceedings.

LexisNexis® Headnotes

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

Civil Procedure > Appeals > Record on Appeal

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN1 Generally, if a defendant does not timely file an

answer and a return of service has been on file for ten

days, the plaintiff may take judgment by default, Tex. R.

Civ. P. 107(h) & 239. The defendant can prevail on a

restricted appeal only if (1) it filed notice of the restricted

appeal within six months after the judgment was signed,

(2) it was a party to the underlying lawsuit, (3) it did not

participate in the hearing that resulted in the judgment

complained of and did not timely file any postjudgment

motions or requests for findings of fact and conclusions

of law, and (4) error is apparent on the face of the

record, Tex. R. App. P. 26.1(c) & 30. The face of the

record consists of all the papers on file in the appeal.

Civil Procedure > ... > In Rem & Personal Jurisdiction > In

Personam Actions > Long Arm Jurisdiction

Civil Procedure > ... > Service of Process > Methods of

Service > Service on Agents

HN2 For a trial court to have jurisdiction over a

nonresident defendant, the Secretary of State must

forward copies of the citation and petition to the

defendant as required by the long-arm statute. Under

the long-arm statute, the Texas Secretary of State is an

agent for service of process on a nonresident defendant

who engages in business in this state but does not

maintain a regular place of business in this state or a
designated agent for service of process, in any

proceeding arising out of business done in Texas and to

which the nonresident defendant is a party, Tex. Civ.

Prac. & Rem. Code Ann. § 17.044(b) (2008). Once the

Secretary of State is served with duplicate copies of

process for a nonresident defendant that reflect the

nonresident's name and home or home office address,

it must immediately mail to the provided address a copy

of the process by registered or certified mail with return

receipt requested, Tex. Civ. Prac. & Rem. Code Ann. §

17.045(a), (d).

Civil Procedure > ... > Service of Process > Methods of

Service > Service on Agents

Civil Procedure > Appeals > Notice of Appeal

HN3 In a restricted appeal, there is no presumption in

favor of valid service of process. The failure to

affirmatively show strict compliance with the rules

governing service of process renders the attempted

service invalid and of no effect. However, absent fraud

or mistake, the Secretary of State's certificate of service

of process is conclusive evidence that it received and

forwarded service as required by statute.

Judges: Panel consists of Justices Bland, Massengale,

and Brown.

Opinion by: Michael Massengale

Opinion

MEMORANDUM OPINION

Appellant Dave Marquez brings this restricted appeal

from a default judgment rendered in favor of appellee

Nikki Greig on behalf of Texas Stars Cheerleading.

Marquez argues that error appears on the face of the

record because the Secretary of State's certificate of

service of process indicates that the citation and original

petition were delivered to an incorrect address. We

reverse the default judgment and remand for further

proceedings.

Background

Nikki Greig filed a petition in district court alleging that

Dave Marquez had contracted with her to provide dance

and cheerleading choreography services. She alleged

that Marquez performed pursuant to that contract, but

his services were not of the grade and quality that he

had represented. The petition asserted multiple causes

of action including breach of contract, violations of the

Texas Deceptive Trade Practices Act, and fraud.

In the petition, Greig identified the Texas Secretary of

State as the agent for service of process because

Marquez lived [*2] at "2155 North Fairview" in Santa

Ana, California. The citation likewise reflects that

Marquez's street address was "2155 North Fairview."

However, the Secretary of State's certificate of service

of process reflects that copies of the citation and petition

were forwarded by certified mail to "2155 Northfairview"

in Santa Ana, California. The certificate further reflects

that the return receipt bore a notation of "unclaimed."

Marquez never answered or otherwise appeared in the

trial court until filing his notice of appeal.

Several weeks after the Secretary of State's certificate

was filed in the trial court, Greig filed a motion for default

judgment. Although the motion acknowledged that the

return receipt bore a notation of "unclaimed," it asserted

that the Secretary of State had served Marquez with

copies of the citation and petition. The motion stated

that Marquez's last known address was "2155 North

Fairview" in Santa Ana, California. A "Plaintiff's

Certificate of Last Known Address" signed by Greig's

counsel reflects that same address.

The trial court held a hearing on Greig's motion for

default judgment. Following the hearing, the trial court

signed an order granting the motion [*3] and rendering

against Marquez a money judgment of $11,048.87 for

damages, $4,125.00 for attorney's fees, and court costs.

A notice of default judgment was sent to Marquez at

"2155 North Fairview" in Santa Ana, California.

After the default judgment was signed by the trial court,

Marquez timely filed notice of a restricted appeal.

Analysis

In his sole issue, Marquez argues that error is apparent

on the face of the record because it shows that the

Secretary of State forwarded the citation and petition to

an incorrect address. He contends that "2155 North

Fairview," as his address appears in Greig's petition, is

not the same as "2155 Northfairview," as his address

appears in the Secretary of State's certificate of service

of process. Therefore, Marquez argues, the record does

not show compliance with the rules governing service of

process, the default judgment must be reversed, and

the case must be remanded for a new trial.

2012 Tex. App. LEXIS 6551, *1

Page 2 of 4
Although Greig has not filed an appellee's brief, she has

filed a motion to dismiss the appeal. She contends that

the record demonstrates that Marquez was properly

served at his home address. This court ordered that

Greig's motion be carried with submission of the case.

HN1 Generally, [*4] if a defendant does not timely file an

answer and a return of service has been on file for ten

days, the plaintiff may take judgment by default. See

TEX. R. CIV. P. 107(h) & 239. The defendant can prevail

on a restricted appeal only if (1) it filed notice of the

restricted appeal within six months after the judgment

was signed, (2) it was a party to the underlying lawsuit,

(3) it did not participate in the hearing that resulted in the

judgment complained of and did not timely file any

postjudgment motions or requests for findings of fact

and conclusions of law, and (4) error is apparent on the

face of the record. TEX. R. APP. P. 26.1(c) & 30; Ins. Co.

of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per

curiam). The only matter at issue in this restricted

appeal is whether error is apparent on the face of the

record. The face of the record consists of all the papers

on file in the appeal. Norman Commc'ns v. Tex. Eastman

Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

HN2 For a trial court to have jurisdiction over a

nonresident defendant, the Secretary of State must

forward copies of the citation and petition to the

defendant as required by the long-arm statute. Comm'n

of Contracts of Gen. Exec. Comm. v. Arriba, Ltd., 882

S.W.2d 576, 585 (Tex. App.—Houston [1st Dist.] 1994,

no pet.) [*5] (citing Whitney v. L & L Realty Corp., 500

S.W.2d 94, 96 (Tex. 1973)). Under the long-arm statute,

the Texas Secretary of State is an agent for service of

process on a nonresident defendant who engages in

business in this state but does not maintain a regular

place of business in this state or a designated agent for

service of process, in any proceeding arising out of

business done in Texas and to which the nonresident

defendant is a party. See TEX. CIV. PRAC. & REM. CODE

ANN. § 17.044(b) (West 2008). Once the Secretary of

State is served with duplicate copies of process for a

nonresident defendant that reflect the nonresident's

name and home or home office address, it must

immediately mail to the provided address a copy of the

process by registered or certified mail with return receipt

requested. See id. § 17.045(a), (d).

HN3 In a restricted appeal, there is no presumption in

favor of valid service of process. Primate Const., Inc. v.

Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam);

Uvalde Country Club v. Martin Linen Supply Co., 690

S.W.2d 884, 885 (Tex. 1985) (per curiam). The failure to

affirmatively show strict compliance with the rules

governing service of process renders the [*6] attempted

service invalid and of no effect. Uvalde Country Club,

690 S.W.2d at 885. However, absent fraud or mistake,

the Secretary of State's certificate of service of process

is conclusive evidence that it received and forwarded

service as required by statute. Capitol Brick, Inc. v.

Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986).

Marquez analogizes this case to Royal Surplus Lines

Insurance Co. v. Samaria Baptist Church, 840 S.W.2d

382 (Tex. 1992) (per curiam). In that case, the plaintiff

unsuccessfully attempted service of process on the

defendant's registered agent. Id. at 382. Pursuant to the

Texas Non-Profit Corporation Act, the plaintiff then

attempted service through the Secretary of State. Id.

The address of the defendant's registered agent was

listed in the Secretary's public records as "1201 Bessie."

Id. at 383. However, the Secretary's certificate reflected

that it sent the citation and petition to "1201 Bassie,"

and the letter was returned with the notation

"unclaimed." Id. The defendant did not appear, and the

trial court rendered a default judgment. Id. at 382. On

appeal, the court of appeals reversed the default

judgment and remanded for a new trial. Id. at 383. In

[*7] denying the plaintiff's application for writ of error,

the Supreme Court noted that "[a] typographical error in

the forwarding address typed by the Secretary is

grounds to set aside a default judgment based on

substituted service." Id.

This case is analogous to Royal Surplus Lines. There

are numerous indications in the record that Marquez's

address is "2155 North Fairview," but the Secretary of

State's certificate indicates that the citation and petition

were forwarded to "2155 Northfairview." The return

receipt, like the one in Royal Surplus Lines, indicates

that the process sent to that address was "unclaimed."

Given the notation on the return receipt and the multiple

indications in the record that Marquez's actual address

differed, if only slightly, from the address to which the

Secretary of State forwarded service of process, we

hold that the record does not affirmatively show strict

compliance with the rules governing service of process.

See Uvalde Country Club, 690 S.W.2d at 885.

Accordingly, we sustain Marquez's issue on appeal,

reverse the default judgment, and remand the case for

further proceedings. See Royal Surplus Lines, 840

S.W.2d at 383.

Conclusion

2012 Tex. App. LEXIS 6551, *3

Page 3 of 4
We deny as moot Greig's [*8] motion to dismiss the

appeal. We reverse the judgment and remand the case

for further proceedings.

Michael Massengale

Justice

JUDGMENT

This case is an appeal from the final judgment signed by

the trial court on June 14, 2010. After submitting the

case on the appellate record and the arguments properly

raised by the parties, the Court holds that there was

reversible error in the trial court's judgment.Accordingly,

the Court reverses the trial court's judgment and

remands the case to the trial court for further

proceedings.

The Court orders that the appellee, Nikki Greig, on

behalf of Texas Stars Cheerleading, pay all appellate

costs.

The Court orders that this decision be certified below

for observance.

Judgment rendered August 9, 2012.

2012 Tex. App. LEXIS 6551, *7

Page 4 of 4
Page 1 

2 of 2 DOCUMENTS 

Analysis 

As of: Mar 30, 2015 

KENNETH MCCLAIN, Appellant v. USA TODAY NEWSPAPER, USA TODAY 

INTERNET ARTICLE DIVISION, USA TODAY JOURNALIST KEVIN MCCOY, 

USA TODAY JOURNALIST PAUL OVERBERG, AND DALLAS COUNTY 

SHERIFF'S OFFICE, Appellees 

No. 05-08-01123-CV 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS 

2010 Tex. App. LEXIS 4542

June 17, 2010, Opinion Filed 

SUBSEQUENT HISTORY: Released for Publication July 30, 2010. 

Rehearing denied by McClain v. USA Today Newspaper, 

2010 Tex. App. LEXIS 6117 (Tex. App. Dallas, July 19, 

2010)

PRIOR HISTORY: [*1] 

 On Appeal from the County Court at Law No. 4, Dallas County, Texas. Trial Court Cause No. CC08-01140D. 

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant, a pro se litigant, sought review of a decision of the County Court at 

Law No. 4, Dallas County, Texas, granting summary 

judgment in favor of appellees, a newspaper and two

journalists. Because the appeal appeared to be untimely, 

the court directed the parties to file letter briefs addressing the court's jurisdiction over the appeal. 

OVERVIEW: The litigant timely filed a notice of appeal with the trial court only. He failed to serve a copy of 

the notice of appeal on the other parties to the trial court's 

judgment, and failed to file a copy with the appellate 

court clerk, as required by Tex. R. App. P. 9.5, 25.1(e). 

Twelve days later, he filed a motion to strike his notice 

of appeal and a motion to vacate judgment. He 

acknowledged he deliberately and intentionally failed to 

serve the notice of appeal on all parties to the judgment. 

It was also clear that he did not intend his May 1st notice 

of appeal to be a bona fide attempt to invoke the court's 

jurisdiction. The motion to vacate judgment had the same 

effect as a motion to modify the judgment and was sufficient to extend the time within which to perfect an appeal 

under Tex. R. App. P. 26.1. Therefore, the notice of appeal was due by July 14, 2008; the litigant's second notice of appeal filed on August 7, 2008 was untimely. 

Although the litigant mistakenly believed he had 90 days 

from the date on which he filed his motion to vacate 

judgment to perfect his appeal, the time should have 

been calculated from the date the judgment was signed 

under rule 26.1(a)(2). 

OUTCOME: The court dismissed the appeal for want of 

jurisdiction. 

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Reviewability > Notice of 

Appeal

[HN1] Tex. R. App. P. 37.1 requires an appellate clerk to 

notify the parties of a defect in a notice of appeal so it 

can be remedied. 
Page 2 

2010 Tex. App. LEXIS 4542, * 

Civil Procedure > Appeals > Reviewability > Time Limitations

[HN2] Absent a filing that extends the deadline, a party 

has thirty days from the judgment is signed to file a notice of appeal. Tex. R. App. P. 26.1. If a party timely files 

a motion to modify the judgment, notice of appeal must 

be filed within ninety days after the judgment is signed. 

Tex. R. App. P. 26.1(a)(2). 

Civil Procedure > Appeals > Reviewability > Time Limitations

[HN3] The Rules of Appellate Procedure calculate the 

period within which one must perfect an appeal from the 

time the judgment is signed, not from the filing of a 

pleading. 

Civil Procedure > Appeals > Reviewability > Time Limitations

[HN4] The rules of appellate procedure provide for additional time within which to file a notice of appeal. Tex. 

R. App. P. 26.3. 

Civil Procedure > Appeals > Reviewability > Time Limitations

[HN5] A notice of appeal filed outside the fifteen-day 

period provided by Tex. R. App. P. 26.3 will not invoke 

the appellate court's jurisdiction. 

Civil Procedure > Parties > Self-Representation > 

Pleading Standards

[HN6] Although we construe pro se pleadings and briefs 

liberally, we hold pro se litigants to the same standards 

as licensed attorneys and require them to comply with 

applicable laws and rules of procedure. To do otherwise 

would give a pro se litigant an unfair advantage over a 

litigant who is represented by counsel. 

Civil Procedure > Appeals > Reviewability > Time Limitations

[HN7] The timely filing of a notice of appeal is jurisdictional. Tex. R. App. P. 25.1(b). 

COUNSEL: For APPELLANT: Kenneth McClain, 

PINE KNOT, KY. 

For APPELLEE: Greg Long, Assistant District Attorney, 

Dallas, TX; Laura Lee Prather, Catherine Lewis Robb, 

Sedgwick, Detert, Moran & Arnold, LLP, Austin, TX. 

JUDGES: Before Justices Richter, Lang-Miers, and 

Murphy. Opinion By Justice Richter. 

OPINION BY: MARTIN RICHTER 

OPINION 

MEMORANDUM OPINION 

Opinion By Justice Richter 

This is an attempted appeal from the trial court's order granting summary judgment in favor of USA Today

Newpaper, USA Today Internet Article Division, USA 

Today journalist Kevin McCoy, and USA Today journalist Paul Overberg (collectively, USA Today). Pro se 

appellant Kenneth McClain timely filed a notice of appeal on May 1, 2008, with the trial court only. He failed 

to serve a copy of the notice of appeal on the other parties to the trial court's judgment, and failed to file a copy 

with the appellate court clerk, as required by the rules of 

appellate procedure. See TEX. R. APP. P. 9.5, 25.1(e). 

Twelve days later, on May 12, 2008, McClain filed a

motion to strike his notice of appeal, a motion to vacate 

judgment, and a motion for findings of fact and conclusions of law. In his motion to strike notice of appeal, 

McClain stated, "[i]n anticipation of filing my motion to 

vacate judgment and motion for finding of fact and conclusions of law, and motion to [*2] strike notice of appeal, I did not serve defendants yet under T.R.A.P. 

25.1(e). I will re-file my notice of appeal within 90 days

after my motion to vacate judgment is filed." McClain 

did not intend for his May 1, 2008 notice of appeal to 

invoke the jurisdiction of this Court. McClain acknowledged he deliberately and intentionally failed to comply 

with the rules of appellate procedure by not serving a 

copy of the May 1, 2008 notice of appeal on all parties to 

the judgment. 

Furthermore, the May 1, 2008 notice of appeal was 

defective. See TEX. R. APP. P. 9.5, 25.1(e). [HN1] Rule 

37.1 of the rules of appellate procedure requires an appellate clerk to notify the parties of a defect in a notice of 

appeal so it can be remedied. See TEX. R. APP. P. 37.1; 

see Feist v. Berg, No. 12-04-00004-CV, 2004 Tex. App. 

LEXIS 1260, 2004 WL 252785, at *1 (Tex. App.--Tyler

Feb. 11, 2004, pet. denied) (mem. op.). However, in this 

case, the appellate clerk did not have the opportunity to 

notify McClain of the defect in his notice of appeal because a copy of the notice was not filed with the appellate court clerk. Additionally, it is clear from McClain's 

motion to strike the notice of appeal that he was aware of 

the defect in his notice of [*3] appeal, had an opportunity to remedy the defect, and deliberately elected not 

to do so. It is also clear from his motion to strike appeal 
Page 3 

2010 Tex. App. LEXIS 4542, * 

that McClain did not intend his May 1st notice of appeal 

to be a bona fide attempt to invoke the appellate court's 

jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, 

616 (Tex. 1997). 

[HN2] Absent a filing that extends the deadline, a 

party has thirty days from the judgment is signed to file a 

notice of appeal. TEX. R. APP. P. 26.1. If a party timely 

files a motion to modify the judgment, notice of appeal 

must be filed within ninety days after the judgment is 

signed. TEX. R. APP. P. 26.1(a)(2). McClain's motion to 

vacate judgment had the same effect as a motion to modify the judgment and was sufficient to extend the time 

within which to perfect an appeal. See Ramirez v. Williams Bros. Constr. Co., Inc., 870 S.W.2d 551, 552 (Tex. 

App.--Houston [1st Dist.] 1993, no pet.) (any 

post-judgment motion which, if granted, results in a substantive change in the original judgment extends the time 

for perfecting an appeal). Accordingly, McClain's notice 

of appeal was due by July 14, 2008. 

McClain filed his second notice of appeal on August

7, 2008. Again, McClain [*4] filed his notice with the 

trial court only. There is nothing in the record to indicate 

McClain served a copy of the second notice of appeal on 

the other parties to the trial court's judgment. He did not 

file a request for an extension of time within which to 

file his notice of appeal. Because the August 7, 2008 

notice of appeal appeared to be untimely as to the April 

14, 2008 judgment and May 12, 2008 motion to vacate, 

we directed the parties to file letter briefs addressing our 

jurisdiction over the appeal. 

In his letter brief, McClain argued that his May 1,

2008 notice of appeal was valid, timely, and sufficient to 

perfect his appeal. McClain also argued that his August 

7, 2008 notice of appeal was timely filed because the 

motions he filed extended his deadline for filing by 

ninety days. The record reflects McClain mistakenly

believed he had ninety days from the date on which he 

filed his motion to vacate judgment to perfect his appeal, 

instead of ninety days from the date the judgment was 

signed. See TEX. R. APP. P. 26.1(a)(2); see also Farmer 

v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995)

[HN3] ("The Rules of Appellate Procedure calculate the 

period within which one must perfect [*5] an appeal 

from the time the judgment is signed, not from the filing 

of a pleading.") (emphasis in original). 

[HN4] The rules of appellate procedure provide for 

additional time within which to file a notice of appeal. 

See TEX. R. APP. P. 26.3. However, McClain cannot 

obtain the benefit of rule 26.3 because he did not file his 

notice of appeal within fifteen days of the deadline for 

filing the notice of appeal. Id.; see also Verburgt, 959 

S.W.2d at 617 (holding motion for extension is implied if 

perfecting instrument is filed within fifteen days of its 

due date). [HN5] A notice of appeal filed outside the 

fifteen-day period provided by rule 26.3 will not invoke 

the appellate court's jurisdiction. Id.; see also Owusu v. 

Citibank (South Dakota), N.A., No. 05-09-00834-CV, 

2009 Tex. App. LEXIS 7376, 2009 WL 3003187, at *1 

(Tex.App.--Dallas Sept. 22, 2009, no pet.) (mem. op.). 

[HN6] Although we construe pro se pleadings and 

briefs liberally, we hold pro se litigants to the same 

standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Pena v. 

McDowell, 201 S.W.3d 665, 667 (Tex. 2006); Mansfield 

State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); 

Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. 

App.--Dallas 2009, pet. denied). [*6] To do otherwise 

would give a pro se litigant an unfair advantage over a 

litigant who is represented by counsel. Cooper v. Circle 

Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 

(Tex. App.--Dallas 2008, no pet.). 

[HN7] The timely filing of a notice of appeal is jurisdictional. TEX. R. APP. P. 25.1(b); see Owusu, 2009 

Tex. App. LEXIS 7376, 2009 WL 3003187, at *1. Because McClain's first notice of appeal was defective and 

his second notice of appeal was untimely, we do not have 

jurisdiction over this appeal. 

We dismiss this appeal for want of jurisdiction. 

MARTIN RICHTER 

JUSTICE 
| | Neutral

As of: April 7, 2015 5:56 PM EDT

McDonald v. Newmyer

Court of Appeals of Texas, First District, Houston

April 6, 1989

No. 01-88-00188-CV

Reporter

775 S.W.2d 652; 1989 Tex. App. LEXIS 765

FLOYD E. MCDONALD, Appellant v. YVONNE

NEWMYER, Appellee

Subsequent History: [**1] Rehearing Denied

September 14, 1989.

Prior History: On Appeal from the 335th District Court

Burleson County, Texas, Trial Court.

Core Terms

cost bond, days, motion for a new trial, perfecting an

appeal, perfect, appellate record, bankruptcy court, trial

court, trial judge, dism'd

Case Summary

Procedural Posture

Appellant movant sought review of a judgment from the

335th District Court, Burleson County (Texas), and filed

his cost bond for appeal 346 days after the trial court

signed the final judgment.

Overview

Appellant movant filed a motion for a new trial following

the trial court's final judgment. While the motion was

pending, appellee debtor filed bankruptcy proceedings

which stayed the district court action, however, the

record did not indicate the date on which appellee filed

for bankruptcy protection. The bankruptcy court granted

relief from stay, and the court held that even if it assumed

that the stay was in effect from the date the judgment

was signed until the date the bankruptcy court granted

relief from stay, appellant did not timely perfect his

appeal because his cost bond was filed 114 days after

the bankruptcy lifted the stay and 346 days after the trial

judge signed the judgment. The court on its own motion,

dismissed the appeal for want of jurisdiction.

Outcome

The court dismissed appellant movant's appeal on its

own motion for want of jurisdiction because the appellate

record did not affirmatively reflect appellant's timely

perfection of his appeal.

LexisNexis® Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction >

General Overview

Civil Procedure > Appeals > Record on Appeal

HN1 The appellate record must affirmatively reflect a

reviewing court's jurisdiction.

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN2 A reviewing court has no authority to entertain an

appeal where the appellant does not timely perfect the

appeal.

Civil Procedure > Judgments > Relief From Judgments >

General Overview

Civil Procedure > Judgments > Relief From Judgments >

Motions for New Trials

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN3 An appellant perfects the appeal by filing a cost

bond, deposit of cash, or affidavit of inability to pay

within 90 days from the date of judgment when a motion

for new trial is filed. Tex. R. App. P. 40(a), 41(a)(1).

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN4 The filing of the cost bond is a necessary and

jurisdictional step in perfecting an appeal.
Counsel: Preston C. Goodwin, Hagerman & Seureau,

Spring, for appellant.

Joan E. Scroggins, Caldwell, for appellee.

Judges: Warren, Dunn and Hughes, JJ.

Opinion by: PER CURIAM

Opinion

[*653] This Court, on its own motion, dismisses this

appeal for want of jurisdiction.

HN1 The appellate record must affirmatively reflect our

jurisdiction. University Interscholastic League v. Payne,

635 S.W.2d 754, 756 (Tex.App. -- Amarillo 1982, writ

dism'd); Stegall v. Cameron, 601 S.W.2d 771, 773

(Tex.Civ.App. -- Dallas 1980, writ dism'd). HN2 We have

no authority to entertain an appeal where the appellant

does not timely perfect the appeal. Wadkins v.

Diversified Contractors, 714 S.W.2d 136, 137 (Tex.

App. -- Houston [1st Dist.] 1986, no writ). HN3 An

appellant perfects the appeal by filing a cost bond,

deposit of cash, or affidavit of inability to pay within 90

days from the date of judgment when a motion for new

trial is filed. Tex. R. App. P. 40(a), 41(a)(1). HN4 The

filing of the cost bond is a necessary and jurisdictional

step in perfecting an appeal. Davies [**2] v. Massey,

561 S.W.2d 799, 801 (Tex.1978).

Here, the trial court signed its final judgment on February

10, 1987. Appellant filed his motion for new trial on

February 26, 1987. Under ordinary circumstances, this

motion would have been overruled by operation of law

on April 26, 1987. Tex. R. Civ. P. 329b(c). Appellant

would have had to perfect his appeal by May 11, 1987,

90 days after the trial judge signed the judgment. Tex.

R. App. P. 41(a)(1). Appellant did not file his cost bond

until January 22, 1988, 346 days after the trial judge

signed the judgment.

The record before us does indicate that, while the

motion for new trial was pending, appellee Yvonne

Newmyer filed bankruptcy proceedings, which stayed

the district court action. See 11 U.S.C. § 362 (1982).

On September 30, 1987, the bankruptcy court granted

relief from the stay. (Appellant filed a certified copy of

this order with the trial court.) There is nothing in the

record that indicates when appellee filed for bankruptcy

protection or how long the stay tolled the appellate

timetable. Even if we assume, however, that the stay

was in effect from the date the judgment was signed

until September 30, 1987, appellant [**3] did not timely

perfect his appeal. Appellant filed his cost bond 114

days after the bankruptcy court lifted the stay. That filing

was not timely.

The appellate record does not affirmatively reflect

appellant's timely perfection of his appeal..

We dismiss the appeal.

Panel consists of Justice Warren, Dunn, and Hughes.

Judgment rendered and opinion delivered April 6, 1989

775 S.W.2d 652, *653; 1989 Tex. App. LEXIS 765, **1

Page 2 of 2
Page 1 

Caution 

As of: Mar 30, 2015 

Memorial Hospital Of Galveston County, et al., Petitioners, v. Zelma Lee Gillis, Respondent 

No. C-6709 

SUPREME COURT OF TEXAS 

741 S.W.2d 364; 1987 Tex. LEXIS 391; 31 Tex. Sup. J. 77

November 18, 1987, Decided 

SUBSEQUENT HISTORY: [**1] 

PRIOR HISTORY: FROM GALVESTON 

COUNTY, FIRST DISTRICT. 

COUNSEL: Petitioner: Mr. Scott Lyford, Office of the 

Atty., Galveston Co. 

Respondent: Mr. Scott A. Sanes, Hardy, Milutin & 

Johns. 

OPINION BY: PER CURIAM 

OPINION 

 [*365] Forty days after the trial court had dismissed her worker's compensation suit for want of prosecution, Zelma Lee Gillis filed an unverified motion to 

reinstate. Gillis' motion stated the nature of her action, 

explained the cause for the delay in prosecution, and 

claimed that her suit had merit. Following a hearing on 

her motion, the trial court reinstated her action. The record does not reflect what transpired at that hearing, and 

the order reinstating the cause does not recite the trial 

court's findings or the grounds for reinstatement. The 

action later went to trial, where Gillis had judgment on a 

jury verdict awarding some $ 52,000 for her injuries. The 

court of appeals affirmed. 731 S.W.2d 692. On September 19, 1987, we refused Memorial Hospital's application for writ of error, finding no reversible error. The 

court grants Memorial Hospital's motion for rehearing, 

and without hearing oral argument reverses the judgment 

of the court of appeals and vacates [**2] the judgment 

of the trial court. The opinion of the court of appeals 

conflicts with TEX. R. CIV. P. 306(a). 

The procedure for obtaining relief from a dismissal

for want of prosecution is set forth in TEX. R. CIV. P. 

165a. In pertinent part, Rule 165a states: 

 

 [a] motion to reinstate shall set forth 

the grounds therefor and be verified by 

the movant or his attorney. It shall be filed 

with the clerk within 30 days after the order of dismissal is signed or within the 

period provided by Rule 306a. 

 

It is undisputed that Gillis' motion was not filed within 

thirty days of the signing of the order dismissing her action. The question is whether it was filed within the time 

period provided by TEX. R. CIV. P. 306a. Rule 306a

provides that a party who did not have notice or 

knowledge of a judgment or order may be afforded thirty 

days from the date he acquired such notice or knowledge 

in order to invoke the trial court's plenary jurisdiction, 

provided that he can: 

 . . . prove in the trial court, on sworn 

motion and notice, the date on which the 

party or his attorney first either received a 

notice of the judgment or acquired actual 
Page 2 

741 S.W.2d 364, *; 1987 Tex. LEXIS 391, **; 

31 Tex. Sup. J. 77 

knowledge of the signing and that this 

[**3] date was more than twenty days 

after the judgment was signed. 

 

TEX. R. CIV. P. 306a (5). Compliance with the time periods prescribed by these rules is a jurisdictional prerequisite. Unless a party establishes in the manner prescribed by the rule that he had no notice or knowledge of 

the judgment, the general rule prevails: a trial court's 

power to reinstate a cause after dismissal expires thirty 

days after the order of dismissal is signed. Harris 

County v. Miller, 576 S.W.2d 808 (Tex. 1979). 

There is nothing in the record to indicate that Gillis 

sustained her burden of proving to the trial court that she 

had no notice or knowledge of the order dismissing her 

cause within twenty days of its rendition. In her motion 

for reinstatement, Gillis did not allege that she had no 

notice or [*366] knowledge of the order. The order 

granting her motion for reinstatement does not recite that 

Gillis had no notice or knowledge of the dismissal. No 

statement of facts has been brought before us that would 

indicate that Gillis sustained her burden of proof at the 

reinstatement hearing. Gillis supplied the court of appeals with a supplemental transcript, which contained a 

copy of the [**4] postcard notices sent by the district 

clerk to the attorneys for the parties in order to notify 

them of the dismissal. See TEX. R. CIV. P. 306a (3). The 

postcards indicate the date of dismissal and the date upon 

which the postcards were sent. However, there is nothing 

to indicate that the trial court considered these postcard 

notices at the hearing, nor is there anything in the record 

to negate the possibility that Gillis or her attorney acquired actual knowledge of the dismissal within twenty 

days of its signing. Rule 306a plainly requires that this 

proof be made in the trial court, not the court of appeals. 

Since Gillis did not establish the applicability of Rule 

306a (4) in the trial court in the manner prescribed by the

rule, the trial court was without jurisdiction to reinstate 

her cause upon a motion filed forty days after dismissal. 

The subsequent judgment in Gillis' favor was therefore a 

nullity, and the court of appeals erred in affirming it. 

The judgment of the court of appeals is reversed, 

and the judgment of the trial court in Gillis' favor is vacated. The trial court's order dismissing Gillis' cause for 

want of prosecution is reinstated. 
Page 1 

Caution 

As of: Mar 30, 2015 

OSCAR ORTIZ, Appellant, v. AVANTE VILLA AT CORPUS CHRISTI, INC., 

Appellee. 

NUMBER 13-96-030-CV 

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS 

CHRISTI 

926 S.W.2d 608; 1996 Tex. App. LEXIS 3302

June 13, 1996, delivered 

June 13, 1996, filed 

SUBSEQUENT HISTORY: [**1] Released for 

Publication July 18, 1996. Rehearing Overruled August 

29, 1996. 

PRIOR HISTORY: On appeal from the 319th District Court of Nueces County, Texas. 

COUNSEL: Rene Rodriguez, 433 S. Tancahua, Corpus 

Christi, TX 78401. 

Carlos Villarreal, 1100 First City Tower II, 555 North 

Carancahua, Corpus Christi, TX 78478. 

JUDGES: Before Chief Justice Seerden, and Justices 

Dorsey and Chavez 

OPINION 

 [*610] OPINION 

Opinion Per Curiam 

The question presented is whether a default judgment is final. Oscar Ortiz, individually and on behalf of 

the estate of Feliciana Ortiz, and three siblings sued 

Avante Villa for the death of their mother while she was 

in the defendant's care. A default judgment was granted 

the plaintiffs but, upon motion of the defendant, a new 

trial was granted. The defendant later took a summary 

judgment, and plaintiff appeal. Upon our examination of 

the transcript we questioned the finality of the initial 

default judgment, which, if it were final, would preclude 

our jurisdiction over the later summary judgment. The 

parties submitted briefs on the issue. We hold the default 

judgment was a final appealable judgment and dismiss 

this attempted appeal from the summary judgment [**2] 

for want of jurisdiction. 

The trial court signed a "FINAL JUDGMENT BY 

DEFAULT" in favor of appellant on January 9, 1995, 

and appellee received notice within 20 days. See TEX. R. 

CIV. P. 306a(4). Appellee filed its motion for new trial 

February 21 -- 43 days after the default judgment was 

signed. Rule 329b provides that a motion for new trial 

must be filed within 30 days after the signing of the 

judgment, and the court has plenary power to grant a new 

trial for only 30 days after the judgment has been signed 

if no motion for new trial is filed. See id. 329b(a), (d). 

There can be only one final judgment in a cause. Id. 301. 

If the default judgment is final, any later action by the 

trial court is void, including the subsequent summary 

judgment. 

Appellee contends the default judgment was not final for several reasons, concluding that the trial court had 

jurisdiction to grant its motion for new trial although 

filed and acted on beyond the 30 day limit. We will address each of appellee's arguments about why the default 

judgment is not final. 
Page 2 

926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, ** 

ALLEGED INADEQUACY OF JUDGMENT'S 

"MOTHER HUBBARD" CLAUSE 

A judgment must dispose of all parties and all issues 

before the trial [**3] court in order for it to be considered final and appealable. Park Place Hosp. v. Estate of 

Milo, 909 S.W.2d 508, 510 (Tex. 1995). When a judgment is entered at the conclusion of a trial on the merits, 

"it will be presumed for appeal purposes that the court 

intended, and did, dispose of all parties legally before it 

and of all issues made by the pleadings" and to be final. 

Northeast Independent School District v. Aldridge, 400 

S.W.2d 893, 898 (Tex. 1966). However, a default judgment is not presumed to be a final judgment. Houston 

Health Clubs v. First Court of Appeals, 722 S.W.2d 692, 

693 (Tex. 1986). Instead we must consider the language 

of the judgment, the record as a whole, and any relevant 

conduct of the parties to determine whether the trial court 

intended to dispose of all [*611] parties and issues. 

Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 39 

Tex. Sup. J. 468, 469 (1996). 

The five plaintiffs in this case sued the defendant for 

damages for the wrongful death of their mother. Under 

the survival statute, they also sought money damages that 

the mother would have been entitled to had she lived. 

There was only one defendant. The default judgment 

[**4] awarded money damages to the plaintiffs. It disposed of all claims the plaintiffs were making on the sole 

defendant. There were no issues raised in the pleadings 

that were not disposed of in the judgment; the judgment 

gave full and complete relief for all plaintiffs against all 

defendants. 

Appellee argues the Mother Hubbard clause in the 

default judgment under review is deficient because it 

recites, "All relief not specifically requested 1

 herein is 

hereby denied." However, a Mother Hubbard clause becomes critical when the specific relief awarded in the 

judgment is less than that sought in the pleadings, and 

the "catch all" clause sweeps out those claims that were 

not specifically reached. The Mother Hubbard clause is 

not essential in the default judgment under consideration 

because all claims for relief are addressed in that judgment. 

1 We emphasize the word "requested" to show 

how this clause differs from a typical Mother 

Hubbard clause. Cf. Mafrige v. Ross, 866 

S.W.2d 590, 590 n. 1 (Tex. 1993) ("A Mother 

Hubbard clause generally recites that all relief not 

expressly granted is denied.") 

 [**5] We must consider the judgment in its entirety and look beyond the putative Mother Hubbard 

clause. Martinez, 875 S.W.2d at 313-14. The default 

judgment provides, "Plaintiffs are allowed such writs and 

process as may be necessary in the enforcement and collection of this judgment," and is entitled, "FINAL 

JUDGMENT BY DEFAULT." Both of these provisions 

indicate the judgment was intended to be a final judgment. See Continental Airlines, 39 Tex. Sup. Ct. J. at 

469. 

The default judgment here was granted with the intent to dispose of all parties and all issues, and the judgment disposed of all parties and claims raised by the 

pleadings. It does not fail to be a final judgment because 

the Mother Hubbard clause is deficient. 

ALLEGED AMBIGUITY RISING FROM UNASCERTAINABLE AWARD 

Judgments must be sufficiently certain so a ministerial officer may determine the parties' rights under the 

judgment in order to carry it into execution. Stewart v. 

USA Custom Paint & Body Shop, 870 S.W.2d 18, 20 

(Tex. 1994). If the amount awarded by the judgment 

cannot be determined, the judgment is interlocutory. H.E. 

Butt Grocery Co. v. Bay, 808 S.W.2d 678, 680 (Tex. 

App.--Corpus Christ [**6] 1991, writ denied). Appellee's next two complaints attack the finality of the default 

judgment on grounds that it is ambiguous and awards an 

unascertainable amount. 

Award of Prejudgment Interest 

Appellee contends that the "FINAL JUDGMENT 

BY DEFAULT" is not final because it does not state how 

prejudgment interest should be calculated. However, this 

is a wrongful death suit and the method of calculating 

prejudgment is established by statute. See TEX. REV. 

CIV. STAT. ANN. art. 5069-1.05 § 6(a) (Vernon Supp.

1996). When the rate and means of calculating interest is 

a matter of law, it need not be stated in the judgment. 

We have held that a judgment is interlocutory if it

awards prejudgment interest but fails to specify which of 

two distinct but potentially applicable methods should be 

used to calculate the interest. H.E Butt Grocery, 808 

S.W.2d at 680-81. However, we specifically noted that 

the suit did not involve a wrongful death claim. Id. at 

680. The distinction between a suit based on a contract 

and a wrongful death suit is significant because there is 

only one method of calculating prejudgment interest in a 

wrongful death case. See id. at 681. 

Amount [**7] of Award to Each Party

Appellee further argues that the default judgment is 

not final because it does not specifically allocate how the 

total judgment is [*612] to be divided among the appellants. Appellee primarily supports its argument with 

Mullen v. Roberts, 423 S.W.2d 576 (Tex. 1968). 
Page 3 

926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, ** 

The Mullen case involved plaintiffs requesting specific money damages in differing amounts under separate 

causes of action based on dissimilar theories of recovery. 

Mullen, 423 S.W.2d at 578 (some plaintiffs sued for 

breach of contract but others sued for fraud). The Mullen

court found the aggregate award at variance with the 

plaintiffs' petition because they pleaded separate and 

distinct causes of action seeking damages appropriate to 

their particular claims. Id. at 578-79. 

In the present case, appellants are jointly suing over 

the death of their mother. The more analogous case is 

Lewis v. Hall, 271 S.W.2d 447 (Tex. Civ. App.--Fort 

Worth 1954, writ ref'd n.r.e.). The Lewis case involved a 

summary judgment awarding an aggregate sum to the 

legatees of Lena Hall. As in our case, the appellants in 

Lewis complained that "the judgment does not apportion 

[**8] any particular amounts to the individual appellees." The Lewis court held, "It is of no concern of appellant how the various appellees divide up the money, 

or if they should get into litigation among themselves 

over such division." Id. at 451. We agree. The "FINAL 

JUDGMENT BY DEFAULT" resolves appellee's liability on the appellants' joint claims. How much each plaintiff receives in what capacity may be resolved by interpleader or in another forum; it should not interfere with 

the enforceability of the judgment. 

ALLEGED IMPROPER SERVICE 

Finally, appellee attacks the default judgment by 

claiming that appellants' service of process was inadequate. Appellee argues that the return of service does not 

identify the method of service or the document served, 

does not state how many copies of the petition were

served, and does not properly name appellee. 

The return of service recites that it was executed "by 

delivering to AVANTE VILLA AT CORPUS CHRIST 

BY DELIVERING TO PRENTICE HALL 2

 BY DELIVERING TO PAT WIGGINS OPERATIONS SPECIALIST." The return of service states the manner of 

service as required by Rule 107. See TEX. R. CIV. P. 

107. 

2 Appellee has not complained before this 

court or before the trial court that Prentice Hall 

was not its registered agent as the citation and petition both suggest. 

 [**9] Appellee next claims the citation is defective because it does not state how many copies of the 

petition were served with the citation. We find no such 

requirement that the return of service state how many 

copies of the petition accompany the citation. 

Next, appellee argues that the return of service does 

not "properly state the name of the item that was served." 

However, the citation identifies the document served as 

"the PLAINTIFFS' ORIGINAL PETITION," which is 

exactly how the petition is entitled. Later in the citation, 

the petition is abbreviated as "PLTFS' ORIGINAL PET." 

The return of service refers to the petition as "the Petition 

attached" to the citation. These descriptions of the document served meet the requirements of Rule 107 Id.; see 

also Herbert v. Greater Gulf Coast Enters., Inc., 915 

S.W.2d 866, 871 (Tex. App.--Houston [1st Dist.] 1995, 

n.w.h.); Woodall v. Lansford, 254 S.W.2d 540, 543 (Tex. 

Civ. App--Fort Worth 1953, no writ). 

Finally, appellee contends that it is misnamed in the 

citation and return of service. However, the citation identifies appellee as "AVANTE VILLA AT CORPUS 

CHRISTI, INC." Appellee is later identified as 

"AVANTE VILLA @ CORPUS CHRISTI, [**10] 

INC." in the style of the case and as "AVANTE VILLA

AT CORPUS CHRISTI" in the return Of service. Appellee contends that this is improper because of the 

omission of the accent from "Avante," because of the 

substitution of the symbol "@" for the word "at," and 

because of the omission of "Inc." We hold that these defects do not invalidate service. 

A default judgment cannot withstand attack unless 

the record affirmatively" [*613] shows strict compliance with rules for service of process. Primate Constr., 

Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). However, strict compliance does not require "obeisance to the 

minutest detail." Herbert, 915 S.W.2d at 871. Errors such 

as mistaken capitalization in the defendant's name and 

spelling errors too minor to raise any doubt that the correct person was served are insufficient to invalidate service. See McDonough v. Williamson, 742 S.W.2d 737, 

740 (Tex. App.--Houston [14th Dist.] 1987, no writ); 

Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. 

App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). The 

omission of the accent mark and the substitution of the 

symbol "@" for the word "at" are akin to the errors that 

[**11] do not invalidate service. Moreover, omission of 

a corporate designation from the return of service does 

not invalidate service when the citation and attached petition both fully name the defendant with the proper designation. See Stephenson v. Corporate Servs., Inc., 650 

S.W.2d 181, 183 (Tex. App--Tyler 1983, writ ref'd n.r.e.). 

We hold that service is facially valid. 

CONCLUSION 

We hold that the "FINAL JUDGMENT BY DEFAULT" was the final judgment in this case. Without a 

timely motion for new trial the trial court had only 30 

days from the date the judgment was signed to grant a 

new trial, and the motion for new trial must be filed 

within 30 days of the signing of the judgment. TEX. R. 

CIV. P. 306a(4), 329b(d). Once the 30 days had run, 
Page 4 

926 S.W.2d 608, *; 1996 Tex. App. LEXIS 3302, ** 

appellee's remedies against the default judgment were 

restricted to a writ of error filed in this court or a bill of 

review filed in the trial court. McEwen v. Harrison, 162 

Tex. 125, 345 S.W.2d 706, 710-11 (Tex. 1961). Because 

we cannot construe the motion for new trial as a bill of 

review, we hold that the trial court had no authority to set 

aside the default judgment or to grant the subsequent 

summary judgment. 

Because there can be [**12] only one final judgment in a cause, and the default judgment was final, we 

dismiss this appeal from the purported summary judgment for want of jurisdiction. 

PER CURIAM 

Opinion delivered and filed on this 

the 13th day of June, 1996. 
Page 1 

5 of 7 DOCUMENTS 

Questioned 

As of: Mar 30, 2015 

Payne & Keller Company, Appellant, v. Peggy A. Word, Appellee 

No. A14-86-712-CV 

COURT OF APPEALS OF TEXAS, Fourteenth District, Houston 

732 S.W.2d 38; 1987 Tex. App. LEXIS 7231

May 7, 1987, Decided 

May 7, 1987, Filed 

PRIOR HISTORY: [**1] Appeal from the 

295th District Court of Harris County, Cause No. 

85-33051. 

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant employer 

sought review of a judgment from the 295th District

Court of Harris County (Texas), which entered a default 

judgment against appellant in an action regarding an automobile collision with appellant's employee. 

OVERVIEW: The trial court entered a default judgment 

against appellant employer in an action regarding an automobile collision with appellant's employee. Appellant 

challenged the default judgment on several points of error. On appeal, the court held that the default judgment 

was not void because the constable's printed signature on 

the citation complied with Tex. R. Civ. P. 107. Next, the 

court held that the constable's minor misspelling of registered agent's name was not a sufficient indication that 

the wrong person was served with process. The court

found the trial court properly denied appellant's motion 

for new trial because it was not timely filed. The court 

found appellee's evidence that supported her claim for 

unliquidated damages was presumably properly authenticated and admissible because appellant did not demonstrate to the contrary. The court found that the trial 

court's award of prejudgment interest was not supported 

by the pleadings. The court modified the judgment by 

excluding $ 36,630.25 awarded as prejudgment interest. 

The court affirmed the trial court's judgment. 

OUTCOME: The court affirmed the default judgment 

entered against appellant employer in an action regarding 

an automobile collision with appellant's employee because the service of process was not defective, and appellant did not timely file its motion for new trial. 

LexisNexis(R) Headnotes

Civil Procedure > Pleading & Practice > Service of 

Process > General Overview

[HN1] In the absence of statutory direction as to the 

method of signing, a constable's printed signature strictly 

complies with Tex. R. Civ. P. 107. 

Civil Procedure > Pleading & Practice > Service of 

Process > General Overview

[HN2] An affirmative showing of compliance with Tex. 

R. Civ. P. 107 is not defeated merely because a constable 

fails to cross out the word defendant on a preprinted 

form. 
Page 2 

732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, ** 

Civil Procedure > Judgments > Relief From Judgment 

> Motions for New Trials

[HN3] Tex. R. Civ. P. 329b provides that a motion for 

new trial must be filed within thirty days after a judgment is signed. 

Civil Procedure > Pleading & Practice > Motion Practice > General Overview

Civil Procedure > Judgments > Relief From Judgment 

> Motions for New Trials

[HN4] Tex. R. Civ. P. 306a(4) provides that if a party 

does not receive notice of a judgment within 20 days of 

the signing thereof, then the time periods controlling the 

filing of a motion for new trial shall begin on the date 

that the party or his attorney receives the notice or actual 

knowledge of the signing. 

Civil Procedure > Judgments > Relief From Judgment 

> Motions for New Trials

[HN5] In order to establish the applicability of Tex. R. 

Civ. P. 306a(4), appellant is required to prove in the trial 

court, on sworn motion and notice, the date on which the 

party or his attorney first either receives the notice of the 

judgment or acquires actual knowledge of the signing, 

and that this date is more than 20 days after the judgment 

is signed. Tex. R. Civ. P. 306a(5). 

Evidence > Authentication > Self-Authentication

[HN6] Tex. R. Evid. 902(10)(a) provides that records 

accompanied by an affidavit are admissible subject to 

certain conditions, which are that the records and affidavit be filed with the clerk at least 14 days prior to the 

date trial commences, and that the notice of the filing be 

served on the opposing party. This rule, however, does 

not preclude authentication of evidence by other means 

that do not have the 14-day notice requirement. Tex. R. 

Evid. 901. 

Civil Procedure > Pleading & Practice > Service of 

Process > General Overview

Civil Procedure > Remedies > Judgment Interest > 

Prejudgment Interest

[HN7] New citation is necessary for a party who has not 

appeared when plaintiff by an amended petition seeks a 

more onerous judgment than prayed for in the original 

pleading. 

COUNSEL: Rodney P. Bridgers, Jr., for Plaintiff or 

Petitioner. 

Michael C. Neel, For Defendant or Respondent. 

JUDGES: Chief Justice J. Curtiss Brown and Justices 

Robertson and Cannon. 

OPINION BY: CANNON 

OPINION 

 [*39] This is an appeal by writ of error from a default judgment. In five points of error, appellant complains that: (1) the return of citation is defective; (2) the 

damages awarded by the judgment are not supported by 

the pleadings, nor the evidence; and (3) the motion for 

new trial was erroneously denied. We agree that some of 

the damages are unsupported by the pleadings, and, accordingly, modify the judgment of the court below and 

affirm it as modified. 

The cause of action arose from an automobile collision between appellee, Peggy Word, and Richard H. 

Jones (Jones). Appellee filed suit against appellant, 

Payne & Keller Company, on June 4, 1985, alleging that 

her car was struck from the rear by Jones's vehicle. Further, she alleged, at the time of the collision, Jones was 

in the course and scope of his employment for appellant. 

Appellee pleaded as damages her medical expenses; past 

and future [**2] lost wages; past and future physical 

pain and mental anguish; court costs; and interest on the 

judgment. 

The petition was served on appellant's registered 

agent, Philippe Petitfrere, on June 19, 1985. Appellant, 

however, did not answer. On January 10, 1986, appellee 

filed a supplemental petition asking for prejudgment 

interest. This supplemental petition was not served on 

appellant. 

On January 24, 1986, a default judgment was entered against appellant for $ 285,630.25 plus post judgment interest and court costs. The judgment recited that 

the cause of action was unliquidated and that appellee 

was entitled to damages upon [*40] good and sufficient evidence presented to the court. Included in the 

judgment was the sum of $ 35,630.25 for prejudgment

interest. Appellant filed an untimely motion for new trial 

on March 27, 1986, which was not granted. Appellant's 

appeal by writ of error was subsequently filed. 

In point of error one, appellant maintains that the

default judgment is void because the constable's return 

fails to state the name of the constable who executed the 

service of citation as required by Tex. R. Civ. P. 107. In 

support of this point, appellant relies on our case, [**3] 

Houston Pipe Coating Co., Inc. v. Houston Freightways, Inc., 679 S.W.2d 42 (Tex. App. -- Houston [14th 

Dist.] 1984, writ ref'd n.r.e.), wherein we stated that Rule 

107 requires that the return must be signed by the sheriff 

or constable or by a deputy who indicates for whom he 
Page 3 

732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, ** 

or she acted as deputy. We acknowledge that Houston 

Pipe Coating Co., Inc. is the applicable rule of law in 

this case. However, contrary to appellant's assertions, the 

citation and officer's return satisfies the requirements of 

Houston Pipe Coating Co., Inc.

In Houston Pipe Coating Co., Inc., 679 S.W.2d at 

45, we held: [HN1] "In the absence of statutory direction 

as to the method of signing, Constable Maxon's printed 

signature strictly complies with Rule 107." Here, the citation and officer's return was marked with a file stamp 

that stated: 

 

 1985 Jun 19 PM 1:57 

R.C. Martinez 

Constable, Precinct No. 6Harris 

County, Texas 

 

Thus we find, in accordance with the holding of Houston 

Pipe Coating Co., Inc., that Constable Martinez's printed 

signature strictly complies with Tex. R. Civ. P. 107. Point 

of error one is overruled. 

In point of error two, appellant complains [**4] 

that the return fails to correctly set forth the manner of 

service as required by Tex. R. Civ. P. 107 because the 

return indicates that the wrong individual was served in 

the wrong capacity. Specifically, appellant asserts that 

the petition and citation state that service is to be on 

Payne & Keller Company, by serving its registered 

agent, Philippe Petitfrere (Petitfrere). However, the officer's return states that service was executed "by delivering to Philipee Petitfreere defendant, . . . ." Thus, appellant argues, because the registered agent's name was 

misspelled by the officer, and because the word "defendant," preprinted on the citation and return form, appears after Petitfrere's name, strict compliance with Tex. 

R. Civ. P. 107 is not shown and the default judgment is 

void. 

In arguing for reversal on the basis of the misspelling of Petitfrere's name by the deputy, appellant 

relies on Uvalde Country Club v. Martin Linen Supply 

Co., 690 S.W.2d 884 (Tex. 1985). We find, however, that 

the facts in Uvalde Country Club and the cases cited 

therein are distinguishable from the facts before us. In 

Uvalde Country Club, citation was directed to Uvalde 

Country Club by serving [**5] its registered agent, 

"Henry Bunting." The sheriff's return on the citation 

showed delivery to "Henry Bunting." However, the original petition alleged that the registered agent was "Henry 

Bunting, Jr." The Texas Supreme Court stated that the 

record did not show that the person served with citation, 

"Henry Bunting," was authorized to receive service or 

that he was connected with the appellant, because the 

petition alleged that the registered agent was "Henry 

Bunting, Jr." Thus, the supreme court held, the record 

did not reflect strict compliance with the rules of civil 

procedure relating to issuance, service, and return of citation. In Faver v. Robinson, 46 Tex. 204 (1876) (cited in 

Uvalde Country Club), a default judgment was reversed 

and remanded because suit was brought against John R. 

Favers, citation was issued to John R. Favers, and the 

return indicated that John R. Favers was served with the 

petition. However, a default judgment was taken against 

John R. Faver. The court stated that a petition, citation, 

and service against Favers does not warrant a judgment 

by default against Faver. In Hendon v. Pugh, 46 Tex. 211 

(1876) (cited in Uvalde Country Club), a default [**6] 

judgment was reversed and remanded because the return 

indicated that service was on [*41] "J.N. Hendon." 

However, the defendant, against whom judgment was 

rendered, was J.W. Hendon. The court held that the return failed to show, with reasonable certainty, that the 

citation was served on the defendant in the suit. Clearly, 

in these cases, there is some uncertainty concerning 

whether the person against whom judgment was taken, or 

who was served as the registered agent, was the correct 

person. 

Here, however, there is no uncertainty. The petition 

and citation both indicate that the registered agent was 

"Philippe Petitfrere." The constable's minor misspelling 

of Petitfrere's name is not a sufficient indication that service was not had upon the correct person. We find that 

the face of the record reflects strict compliance with Tex. 

R. Civ. P. 107. 

Further, we find no merit in appellant's argument 

that the return does not reflect that Petitfrere was served 

in the correct capacity. In considering the record as a 

whole, including the original petition, the citation, and 

the return, we find that service was had upon appellant 

by delivering citation and petition to its registered agent, 

[**7] Philippe Petitfrere. Moreover, [HN2] an affirmative showing of compliance with Tex. R. Civ. P. 107

will not be defeated merely because the constable failed 

to cross out the word "defendant" on a preprinted form. 

See Houston Pipe Coating Co., Inc., 679 S.W.2d at 44-45

(court stated that it was unnecessary to cross out the alternate mode of service on the return). Point of error two 

is overruled. 

In point of error four, appellant maintains that it satisfied the test in Craddock v. Sunshine Bus Lines, Inc., 

134 Tex. 388, 133 S.W.2d 124 (1939) and thus the trial 

court erred in failing to grant its motion for new trial. We 

note, however, that appellant's motion for new trial was 

filed March 27, 1986, sixty-two days after the final 

judgment was signed. [HN3] Texas Rule of Civil Procedure 329b provides that a motion for new trial must be 
Page 4 

732 S.W.2d 38, *; 1987 Tex. App. LEXIS 7231, ** 

filed within thirty days after the judgment is signed. 

Thus, appellant's motion for new trial was filed untimely. 

We note, however, that in its motion for new trial,

appellant alleged that its motion was timely filed under 

the provisions of Tex. R. Civ. P. 306a(4). This court has 

previously considered this argument in an attempted direct appeal filed by [**8] appellant and found it to be 

without merit. [HN4] Rule 306a(4) provides, in part, that 

if a party has not received notice of a judgment within 

twenty days of the signing thereof, then the time periods 

controlling the filing of a motion for new trial shall begin 

on the date that the party or his attorney received notice 

or actual knowledge of the signing. [HN5] In order to 

establish the applicability of Tex. R. Civ. P. 306a(4), 

appellant was "required to prove in the trial court, on 

sworn motion and notice, the date on which the party or 

his attorney first either received a notice of the judgment 

or acquired actual knowledge of the signing and that this 

date was more than twenty days after the judgment was 

signed." Tex. R. Civ. P. 306a(5). However, appellant 

failed to obtain a hearing on this motion or a fact finding 

from the trial court stating when appellant received notice of the judgment. Without this fact finding, we were 

unable to determine whether appellant met his burden of 

proving that the provisions of Tex. R. Civ. P. 306a(4)

applied to extend the time for filing its motion for new 

trial. Thus, we concluded in our unpublished opinion of 

Payne Keller Co. v. Word, No. A14-86-394-CV [**9] 

(Tex. App. -- Houston [14th Dist.] June 26, 1986) that 

appellant's motion for new trial was filed untimely. Point 

of error four is overruled. 

In point of error five, appellant maintains that appellee offered no competent evidence to support her

unliquidated damages. Specifically, appellant complains 

that the affidavits presented by appellee during the damages hearing were not served on appellant at least fourteen days before the hearing as required by Tex. R. Evid. 

902(10)(a). In essence, appellant is maintaining that appellee's affidavits from various health providers were not 

properly authenticated and thus, were inadmissible.

 [*42] Rule 902(10)(a) is an evidentiary rule 

providing for self-authentication of business records accompanied by affidavit. [HN6] It provides that records 

accompanied by an affidavit are admissible subject to 

certain conditions, two of which are that the records and 

affidavit be filed with the clerk at least fourteen days 

prior to the date trial commences and that notice of the 

filing be served on the opposing party. This rule, however, does not preclude authentication of evidence by other 

means, which do not have the fourteen-day notice requirement. [**10] See Tex. R. Evid. 901. Appellant 

has failed to obtain a statement of facts from the hearing 

on damages. Nor has appellant demonstrated that he was 

precluded from obtaining statement of facts. Without a 

statement of facts to review, we cannot determine 

whether appellant's affidavits were authenticated by another means. Thus, we presume the authenticity of the 

affidavits supporting appellant's damages. Consequently, 

we find competent evidence to support the judgment for 

damages. Point of error five is overruled. 

In point of error three, appellant complains that the 

award of prejudgment interest is not supported by the 

pleadings. We agree. Appellee filed a supplemental petition asking for prejudgment interest. Appellant was never served with a copy of the supplemental petition.

[HN7] New citation is necessary for a party who has not 

appeared when the plaintiff, by an amended petition, 

seeks a more onerous judgment than prayed for in the 

original pleading. Weaver v. Hartford Accident and 

Indemnity Co., 570 S.W.2d 367, 370 (Tex. 1978). We 

hold this rule applies with equal force where a supplemental petition is filed rather than an amended petition. 

Consequently, we sustain point of error [**11] three 

and modify the judgment by excluding the $ 35,630.25 

awarded as prejudgment interest. 

The judgment of the court below is affirmed as 

modified. 
Page 1 

Positive 

As of: Mar 30, 2015 

WILLIAM ESPINOZA PENA, PETITIONER, v. DAVID MCDOWELL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, ET AL., RESPONDENTS 

NO. 05-0546 

SUPREME COURT OF TEXAS 

201 S.W.3d 665; 2006 Tex. LEXIS 788; 49 Tex. Sup. J. 1017

August 31, 2006, Opinion Delivered 

SUBSEQUENT HISTORY: Released for Publication October 20, 2006. 

Related proceeding at Pena v. McDowell, 2007 Tex. App. 

LEXIS 2559 (Tex. App. Tyler, Mar. 30, 2007)

PRIOR HISTORY: [**1] ON PETITION FOR 

REVIEW FROM THE COURT OF APPEALS FOR 

THE TWELFTH DISTRICT OF TEXAS. 

Pena v. McDowell, 2004 Tex. App. LEXIS 9664 (Tex. 

App. Tyler, Oct. 29, 2004)

COUNSEL: For PETITIONER: Mr. William Espinoza 

Pena, Pro se, Abilene, TX. 

For RESPONDENT: Mr. David W. McDowell, Pro se, 

Tennessee Colony, TX. 

For AMICUS CURIAE: Honorable Greg Abbott, ATTORNEY GENERAL of TEXAS, Mr. Barry Ross 

McBee, Mr. Edward D. Burbach, Mr. David A. Talbot, 

Jr.,Ms. Kimberly L. Fuchs, Mr. Rafael Edward Cruz, 

OFFICE of the ATTORNEY GENERAL, Austin, TX. 

OPINION 

 [*665] PER CURIAM 

William Pena, an inmate incarcerated at the Angleton unit of the Texas Department of Criminal Justice--Institutional Division, filed suit against the Department as well as several individual defendants, including 

the Office of the Attorney General, alleging various tort 

claims and violations of his state and federal constitutional rights. The trial court dismissed Pena's suit with 

prejudice as "frivolous or malicious." The court of appeals affirmed the dismissal but reformed the trial court's 

judgment to read "without prejudice." Pena v. McDowell, 

2004 Tex. App. LEXIS 9664, No. 12-03-00141-CV, 2004

WL 2423546, at *4 (Tex. App.--Tyler Oct. 29, 2004, no 

pet.). This was based on the assumption that the trial 

court had dismissed Pena's suit for failure to [*666] 

comply with section 14.004 of the Civil Practices and 

Remedies Code, which requires an inmate to list, with 

particularity, the operative facts of any suit previously 

filed in forma pauperis by the inmate. 2004 Tex. App. 

LEXIS 9664, [WL] at *3-4 [**2] Under Texas law, such 

an error may be corrected through an amended pleading, 

so a dismissal with prejudice is not appropriate. See id.

(citing Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. 

App.--Corpus Christi 2001, pet. denied)). 

Pena thereupon re-filed his suit. The trial court, acting sua sponte, again dismissed the case with prejudice 

as frivolous. Although Pena filed motions for reconsideration and for an evidentiary hearing, the trial court did 

not rule on either request. Pena filed a notice of appeal. 

Immediately thereafter, the clerk of the Twelfth 

Court of Appeals sent Pena a letter that read, in relevant 

part: 

 
Page 2 

201 S.W.3d 665, *; 2006 Tex. LEXIS 788, **; 

49 Tex. Sup. J. 1017 

 Pursuant to TEX. R. APP. P. 37.1, notice is hereby given that the notice of appeal filed in this case fails to contain the 

information specifically required by TEX. 

R. APP. P. 25.1(e). You are hereby notified pursuant to TEX. R. APP. P. 42.3, 

that unless a proper notice of appeal is 

filed with the trial court on or before 

Monday, May 9, 2005, the appeal will be 

referred to the Court for dismissal. 

 

(emphasis omitted). Pena did not respond to this letter, 

and [**3] the court summarily dismissed his appeal, 

citing Pena's failure to comply with Rule 25.1(e) of the 

Rules of Appellate Procedure. 1

 S.W.3d (Tex. 

App.--Tyler 2005, pet. filed). 

1 Pena claims that he did not respond to the 

letter because he believed he had complied with 

Rule 25.1(e). Additionally, Pena alleges that 

someone from the clerk's office of the court of 

appeals notified him in a May 5, 2005 letter (received May 11, 2005) that he had perfected his 

appeal. A copy of that letter, however, has not 

been included in the record. 

Rule 25.1(e) requires that a notice of appeal in a civil case "be served on all parties to the trial court's final 

judgment." The court of appeals apparently dismissed the 

appeal because the notice of appeal failed to show on its 

face that the Office of the Attorney General had been 

properly notified of the appeal. However, the defect in 

Pena's notice of appeal does not appear to be that he 

failed to actually serve the [**4] Office of the Attorney 

General. Pena maintains in his brief that he did mail a 

copy of the notice of appeal to the Office of the Attorney 

General, and the amicus brief submitted on behalf of the 

Attorney General carefully avoids contradicting this 

statement. Instead, the Attorney General's position (and 

that of the court of appeals in the decision below) is that 

Pena's failure to include the name and address of the Attorney General on the certificate of service attached to 

the notice of appeal constitutes a violation of Rule 

25.1(e). 

However, Rule 25.1(e) makes no mention of a certificate of service. Indeed, nowhere in Rule 25 are litigants directed to include a certificate of service with their 

notice of appeal or as to what the contents of such a certificate ought to be. Rule 25.1(e) merely requires actual 

service on all parties to the trial court's judgment. A certificate of service is simply one method of demonstrating 

that actual service occurred and is addressed within an 

entirely different section of the Rules of Appellate Procedure. See TEX.R.APP.P.9.5(d) ("A document presented for filing must contain proof of service in the form of 

either an [**5] acknowledgment of service by the person served or a certificate of service."). 

And while it is true that Pena's failure to include the 

Attorney General's name and address on his certificate of 

service violates Rule 9.5(d), it does not, strictly [*667] 

speaking, violate Rule 25.1(e)--the only basis cited for 

the inadequacy of his notice of appeal and the stated 

reason for the dismissal of his appeal. As a result, the 

dismissal of the appeal cannot be sustained on that

ground. 

We recognize that courts of appeals have routinely 

dismissed similar cases on the basis of Rule 25.1(e) even 

though a dismissal under Rule 9.5(d) would have been 

more appropriate. See McCaleb v. Descisciolo, 2005 Tex. 

App. LEXIS 3795, No. 12-05-00122-CV, 2005 WL 

1177062, at *1 (Tex. App.--Tyler May18, 2005, no pet.); 

Guajardo v. Guajardo, 2003 Tex. App. LEXIS 2538, No. 

13-02-364-CV, 2003 WL 1562553, at *1 (Tex. 

App.--Corpus Christi Mar. 27, 2003, no pet.). However, 

other courts have properly cited Rule 9.5(d) where appropriate. See Reiners v. Reiners, 2005 Tex. App. LEXIS 

411, No. 10-04-00359-CV, 2005 WL 114669, at *1 (Tex. 

App.--Waco Jan. 19, 2005, no pet.). 

While an experienced attorney might have been able 

to discern from the court's citation [**6] to Rule 25.1(e)

that there was a problem with the certificate of service, 

our decision today does not amount to a special accommodation to a pro se litigant. To the contrary, it has long 

been our position that pro se litigants are not exempt 

from the rules of procedure. Wheeler v. Green, 157 

S.W.3d 439, 444, 48 Tex. Sup. Ct. J. 408 (Tex. 2005); 

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85, 

22 Tex. Sup. Ct. J. 43 (Tex. 1978). Rather, any litigant is 

entitled to relief from an erroneous decision of a court 

even though, as in this case, an experienced attorney 

might have been able to discern the actual reason for 

dismissal. 

Rule 37.1 of the Rules of Appellate Procedure clearly requires an appellate clerk to notify the parties of a 

defect in the notice of appeal so that the appealing party 

can remedy the defect. Here, the appellate clerk failed to 

correctly identify the defect in Pena's notice of appeal 

and give him a chance to correct the mistake. 

Accordingly, without hearing oral argument, see

TEX. R. APP. P. 59.1, we reverse the court of appeals' 

judgment and remand the case to that court for proceedings consistent with this opinion. 2

2 Pena's pending motions requesting a temporary restraining order, preliminary injunction, and

judicial notice are hereby denied. 
Page 3 

201 S.W.3d 665, *; 2006 Tex. LEXIS 788, **; 

49 Tex. Sup. J. 1017 

 [**7] 
Page 1 

Positive 

As of: Mar 30, 2015 

D. PRIEST & VAN ZANDT COMMISSION COMPANY, INC., Appellants v. TEX. 

ANIMAL HEALTH COMMISSION, Appellee 

No. 05-88-01417-CV 

COURT OF APPEALS OF TEXAS, Fifth District, Dallas 

780 S.W.2d 874; 1989 Tex. App. LEXIS 3142

November 6, 1989 

PRIOR HISTORY: [**1] On Appeal from 294th 

Civil District Court, Van Zandt County, Texas, Trial 

Court Cause No. 87-389. 

COUNSEL: Molly D. Shannon, Austin, Texas. 

Mark J. Calabria, Rebecca L. Calabria, Kaufman, Texas. 

JUDGES: Justices Howell, Linda Thomas and Ovard. 

Dissenting Opinion By Justice Charles Ben Howell. 

OPINION BY: THOMAS 

OPINION 

 [*875] D. Priest and Van Zandt Commission 

Company (hereafter collectively "Priest") appeal from a 

permanent injunction entered by summary judgment, 

enjoining Priest from: 1) failing to maintain proper cattle 

ownership records for cattle sold through them; 2) refusing to allow Texas Animal Health Commission (hereafter 

"Commission") representatives to examine such records; 

and 3) failing to brand cattle exposed to brucellosis. In 

two points of error, Priest contends that the trial court 

erred in granting the Commission's motion for summary 

judgment because: 1) the summary judgment evidence 

did not entitle the Commission to judgment as a matter 

of law and did not establish that there were no genuine 

issues of material fact; and 2) the affidavits and attachments to the Commission's motion for summary judgment were inadequate as a matter of law to establish 

[**2] that no material issue of fact existed. We agree 

that the proof failed to establish that Priest failed to keep 

records as required by law. We conclude, however, that 

the other grounds for injunction were properly established. Thus, the trial court's judgment is affirmed in part 

and reversed and remanded in part. 

STANDARDS OF REVIEW 

A. Permanent Injunction 

A successful applicant for injunctive relief must 

demonstrate the following four grounds for relief: 1) the 

existence of a wrongful act; 2) the existence of imminent 

harm; 3) the existence of irreparable injury; and 4) the 

absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881

(Tex. App. -- Fort Worth 1982), aff'd, 647 S.W.2d 246 

(Tex. 1983). 

The grant or refusal of a permanent or temporary 

injunction is ordinarily within the sound discretion of the 

trial court and, on appeal, review of the trial court's action is limited to the question of whether the action constituted a clear abuse of discretion. Janus Films Inc. v. 

[*876] City of Fort Worth, 163 Tex. 616, 617, 358 

S.W.2d 589, 589 (1962) (temporary injunction); Mejerle 

v. Brookhollow Office Products [**3] , 666 S.W.2d 192, 

193 (Tex. App. -- Dallas 1983, no writ) (temporary injunction); Electronic Data Sys. Corp. v. Powell, 508 

S.W.2d 137, 139 (Tex. Civ. App. -- Dallas 1974, no writ) 
Page 2 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

(temporary injunction, but suggesting that abuse of discretion standard applies to all injunctions); Lee v. 

Bowles, 397 S.W.2d 923, 926 (Tex. Civ. App. -- San 

Antonio 1965, no writ) (permanent injunction). Where 

the facts conclusively show a party is violating the substantive law it becomes the duty of the court to enjoin the 

violation and in such case there is no discretion to be 

exercised. City of Houston v. Memorial Bend Util. Co., 

331 S.W.2d 418, 422 (Tex. Civ. App. -- Houston 1960, 

writ ref'd n.r.e.). 

Although a litigant has the right to a trial by jury in 

an injunction action, only ultimate issues of fact are 

submitted for jury determination. State v. Texas Pet 

Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979). The jury 

does not determine the expediency, necessity or propriety of equitable relief. Id.; Alamo Title Co. v. San Antonio 

Bar Ass'n, 360 S.W.2d 814, 816 (Tex. Civ. App. -- Waco 

1962, writ ref'd n.r.e.). As the supreme court has noted: 

 

 We do not consider the question [**4] 

of likelihood of [defendant's] resumption 

or continuation of the acts enjoined as 

being an ultimate issue of fact for the jury. 

. . . A jury in equity, even under a blended 

system, does not decide the issue of expediency, necessity or propriety of equitable 

relief. . . . It was an element deducible 

from the circumstances for the court to 

consider in determining whether wrong or 

injury might be anticipated and whether 

chancery powers should be exercised. It 

constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction 

cases. 

 

Texas Pet Foods, 591 S.W.2d at 803, quoting Alamo 

Title Co., 360 S.W.2d at 816. 

B. Summary Judgment 

The function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits 

of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. 

Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). 

Under rule 166a of the Texas Rules of Civil Procedure, 

summary judgment may be rendered only if the pleadings, depositions, admissions, interrogatory answers, and 

affidavits show 1) that there is no genuine [**5] issue 

as to any material fact and 2) that the moving party is 

entitled to judgment as a matter of law. TEX. R. CIV. P. 

166a(c). 

The applicable standards for reviewing a summary 

judgment may be summarized as follows: 

 

 1. The movant for summary judgment 

has the burden of showing that there is no 

genuine issue of material fact and that it is 

entitled to judgment as a matter of law. 

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the 

nonmovant will be taken as true. 

 

3. Every reasonable inference must be 

indulged in favor of the nonmovant and 

any doubts resolved in its favor. 

 

Nixon v. Mr. Property Management Co., 690 S.W.2d 

546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 

S.W.2d 309, 310-11 (Tex. 1984). With the standards of 

review for injunction and for summary judgment in 

mind, we turn to the summary judgment proof offered in 

support of Priest's violations of the Texas Agriculture 

Code. 

FAILURE TO KEEP PROPER RECORDS 

The Texas Agriculture Code requires that each livestock auction commission merchant keep a record of 

transportation of livestock to and from the place of sale, 

[**6] including the name and address of the original 

owner and the purchaser of the livestock. TEX. AGRIC. 

CODE ANN. § 147.042 (Vernon 1982). The statute provides that the commission merchant shall retain the records for at least one year after the date of sale. Id. § 

147.042(d). 

 [*877] The Commission also points to section 

147.041 of the Texas Agriculture Code and to rule 

35.2(e) of the Texas Bovine Brucellosis Regulations

promulgated by the Commission pursuant to sections 

161.046 and 163.061 of the Texas Agriculture Code, as 

requiring Priest to keep records of the names and addresses of sellers and purchasers of cattle. Section 

147.041 requires Priest to keep records of all livestock 

sold. TEX. AGRIC. CODE ANN. § 147.041(a). It does 

not explicitly state that Priest must keep records including the name and address of sellers and purchasers of 

livestock, although the statute requires him to file with 

the commissioners court a quarterly report containing 

this information. TEX. AGRIC. CODE ANN. § 

147.041(c). Because the statute does not specifically 

require Priest to keep the information the Commission 

contends he failed to keep, we conclude that violation of 

this provision will [**7] not support the injunction. 

Rule 35.2(e) provides that the market will supply certain 
Page 3 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

information to the veterinarian making a market test of 

cattle, including the full name and address, including zip 

code, of the owner of the cattle at the time the cattle are 

delivered to the market. Again, although the rule certainly implies a requirement to keep records in order to 

supply the information to the veterinarian, there is no 

explicit requirement that Priest keep such records. The 

Commission has not alleged that Priest failed to give the 

required information to the veterinarian. Thus, violation 

of rule 35.2(e) will not support the injunction. 

As proof that Priest failed to keep records including 

the name and address of the original owner and the purchaser, the Commission attached to its motion for summary judgment Priest's answers to interrogatories, an 

affidavit of Wayne Rogers, a postmaster, and excerpts 

from the United States Government Manual pertaining to 

mail. The Commission served on Priest two sets of interrogatories. The sixty questions in the two sets each 

asked Priest to: "Provide full name, address including 

county and telephone number for seller/original owner of 

[certain [**8] cattle identified by back tag number] sold 

through Van Zandt Commission Company, Inc. on [a 

certain date]." The dates of sales were between January 

4, 1986 and December 20, 1986. Priest's answers to the 

interrogatories were served on counsel on June 17, 1988. 

Priest's responses to a number of the interrogatories included name, address including route number and box

number or street address, city and state, and zip code. 

Several interrogatory answers included a name and route 

number, city and state, but did not include a box number 

and zip code. Others included a name, city and state, or 

merely a name. In response to one interrogatory asking 

for the name and address of the seller/original owner of 

back tag #74 493 sold through Van Zandt Commission 

Company on November 22, 1986, Priest responded, "Information not available." The affidavit of the postmaster 

and the excerpts from the Government Manual concerning the elements of a proper address were offered to 

show that the information provided by Priest did not, in 

many respects, constitute full names and addresses.

The Commission's theory for summary judgment 

was that Priest's inability to produce names and addresses for his responses [**9] to the interrogatories was 

proof that, as a matter of law, Priest did not keep the records required by the Agriculture Code. The hypothesis 

is compelling, except for one failing. The Agriculture 

Code required Priest to retain records from sales for only 

one year. TEX. AGRIC. CODE ANN. § 147.042(d). The 

fact that Priest could not produce information on June 

17, 1988, concerning sales in 1986, constitutes no proof 

that Priest failed to keep the records of sale for one year 

as required by the Code. In fact, Priest stated in his affidavit that he has always maintained the proper records. 

Such statements of the nonmovant must be taken as true. 

Nixon, 690 S.W.2d at 548. 

We recognize that Priest did not raise this precise

argument in his response to summary judgment, nor in 

his brief on appeal. We note, however, that this point 

concerns a deficiency of proof that Priest is entitled to 

raise without first complaining [*878] in his response 

to the motion for summary judgment. No response from 

the nonmovant is required when the movant's summary

judgment proof is legally insufficient. Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex. 1980). 

Further, Priest's points [**10] of error aver generally 

that the trial court erred in granting the summary judgment because the Commission failed to prove its entitlement to such judgment. These points embrace all reasons for the failure of proof which rendered the granting 

of the summary judgment improper. Id. at 517. We 

hold that the summary judgment proof failed to establish 

the Commission's entitlement to summary judgment on

the basis of a failure by Priest to maintain proper records. 

Without proof of unlawful conduct or proof of intent to 

commit such conduct, injunctive relief is improper. 

Frey, 632 S.W.2d at 881. We sustain that portion of point 

of error one contending that the Commission failed to 

establish its right to judgment on the ground of failure to 

keep proper records. 

REFUSAL OF ACCESS TO RECORDS 

Section 147.042 of the Texas Agriculture Code provides that the commission merchant shall prepare the 

transportation records referenced above and make them 

available for public inspection within twenty-four hours 

after receipt of the livestock and that these records are to 

be retained for at least one year after the date of sale. 

TEX. AGRIC. CODE ANN. § 147.042. The Commission 

contended that [**11] Priest had refused to allow 

Commission representatives to examine these records. 

As proof, the Commission offered the affidavit of Richard Hanson, Animal Health Inspector. Hanson averred

that on several occasions in the exercise of his official 

duties he had attempted to examine the records of the 

Van Zandt Commission Company and was told by Priest

or his wife, who acted as bookkeeper for the company, 

that he would not be allowed to view any of the records 

unless he brought a search warrant. He lists several dates 

upon which he was refused access to the records, such 

dates being within one year of sales referenced in the 

interrogatories. 

Priest argues that Hanson's affidavit will not support 

summary judgment because Hanson is an interested witness. Rule 166a of the Texas Rules of Civil Procedure

provides that a summary judgment may be based on uncontroverted evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and 
Page 4 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

free from contradictions and inconsistencies, and could 

have been readily controverted. TEX. R. CIV. P. 166a(c); 

Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 

606, 607 (Tex. 1986). We conclude that the statements 

[**12] in Hanson's affidavit that on several listed dates 

he was refused access to records by Priest and his wife 

are clear, positive, direct and could have been readily 

controverted. Further, this evidence was not controverted 

by Priest. Thus, the summary judgment could be based 

upon Hanson's affidavit. Hanson clearly stated that he 

was not allowed to view records which the Agriculture 

Code required Priest to retain and make available for 

public inspection. We hold that this evidence established 

the Commission's entitlement to summary judgment on

this ground as a matter of law. 

FAILURE TO BRAND CATTLE EXPOSED TO 

BRUCELLOSIS 

The Texas Bovine Brucellosis Regulations require 

cattle infected with brucellosis and cattle exposed to infected cattle to be appropriately branded. Cattle identified as being infected with brucellosis are branded on the 

left jaw with the letter "B." Cattle from the same herd as 

any infected cattle are considered suspects, and are to be 

branded on the left jaw with the letter "S." Tex. Animal 

Health Comm'n, 4 TEX. ADMIN. CODE § 35.2(h) (West 

Oct. 15, 1988) (brucellosis). All exposed cattle are to be 

branded prior to moving, except that cattle on the premise of origin [**13] may be moved to a livestock market where they are to be identified by "S" brand upon 

arrival. Id. § 35.2(h)(2). 

As proof that Priest had moved suspect cattle without first "S" branding them, the Commission offered the 

affidavits of Rick Nabors, director of the State-Federal 

laboratories [*879] in Texas, and veterinarian Edward 

L. Ptacek. In addition, Nabors's affidavit was accompanied by documents reflecting the results of brucellosis 

tests of cattle passing through the Van Zandt market. 

Nabors stated that he is a microbiologist and that the 

attached documents correctly reflect that brucellosis tests 

were conducted on blood samples received from a herd 

of cattle owned by the Malouf Ranch. The test results on 

two animals, identified by backtag numbers, were positive. Nabors averred further, "Based on the card test, the 

veterinarian classified both animals as reactors [infected 

with brucellosis]. The State-Federal laboratory tests confirm his results." Edward Ptacek stated that he had been 

employed by the Commission as the director of Area 5, 

the area in which the Van Zandt Commission Company 

conducted business. On a certain date, he personally observed seventy-three head [**14] of cattle from the 

Malouf Ranch, which herd contained two brucellosis-infected animals, being moved without proper "S" 

branding as required for the seventy-one exposed cattle. 

Priest argues that Nabors's affidavit and attachments 

do not support the summary judgment because the affidavit contains hearsay, is not based upon personal 

knowledge, and fails to establish the admissibility of the 

attachment. Priest's hearsay complaint is directed to the 

statement that "the veterinarian classified both animals as 

reactors." We agree that such statement is inadmissible 

hearsay, properly objected to in Priest's response to the 

motion for summary judgment, and should be disregarded. Priest further contends that this hearsay statement 

shows that Nabors's affidavit is not based on personal 

knowledge, but rather upon the statement of some unknown veterinarian. We disagree. The affidavit states 

that Nabors confirmed this statement from his own laboratory tests. Priest also argues that the documents attached to Nabors's affidavit are inadmissible because the 

documents are not directly referenced or identified in the 

affidavit, the affidavit does not reflect whether the attachments are true and correct [**15] copies of the 

originals, and the affidavit does not establish the admissibility of the documents. 

Priest is mistaken in stating that the affidavit does 

not refer to the documents. The affidavit clearly states, 

"The attached documents correctly reflect . . ."; thus, the 

affidavit does directly reference the documents. Priest's 

argument that the affidavit fails to state that the copies 

are true and correct copies is more troublesome. Priest 

correctly states that such words are not used. Rule 166a

states that attachments referred to in an affidavit shall be 

sworn or certified copies. TEX. R. CIV. P. 166a(e). 

Documents which are not sworn to or certified in any 

way do not constitute summary judgment proof. Lopez 

v. Hink, 757 S.W.2d 449, 450 (Tex. App. -- Houston 

[14th Dist.] 1988, no writ). 

The supreme court has held, however, that copies of

documents which are attached to a properly prepared 

affidavit are sworn copies within the meaning of rule 

166a. Schindler, 717 S.W.2d at 607; Zarges v. Bevan, 

652 S.W.2d 368, 369 (Tex. 1983). An affidavit which 

avers that the documents are true and correct copies is 

considered a properly prepared affidavit. Schindler, 717 

[**16] S.W.2d at 607. Schindler does not, however, 

limit a properly prepared affidavit to one containing 

these magic words. We hold that Nabors's statement that 

the documents accurately reflect the results of tests performed by the laboratory he supervises properly verified 

the documents. 

Priest's last complaint directed to Nabors's affidavit 

and attached documents is that the affidavit fails to establish the admissibility of the attachments "with respect 

to who made the document, when they were prepared or 

whether or not they were business records." Priest does 

not aid us with citation to authority; nevertheless, we 

discern that his complaint is that the documents were 
Page 5 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

hearsay in that they were not shown to be admissible 

business records. Priest raises this complaint for the first 

time on appeal. Because he failed to raise this hearsay 

objection in his response to the motion for summary

judgment, he has waived any complaint as to [*880] 

consideration of inadmissible evidence as part of the 

summary judgment record. Dolenz v. A.B., 742 S.W.2d 

82, 83-84 n.2 (Tex. App. -- Dallas 1987, writ denied). 

Priest attacks Ptacek's affidavit because the witness 

references "the foregoing [**17] test records," an apparent reference to the documents attached to Nabors's 

affidavit, which preceded Ptacek's affidavit when presented to the court. Priest again complains that the documents were not properly sworn. We reiterate that Nabors's affidavit properly verified the exhibit. Priest further complains that the referenced document was not

attached to Ptacek's affidavit. Rule 166a(e) provides that 

sworn copies of all papers or parts thereof referred to in 

an affidavit shall be attached thereto or served therewith. 

Priest does not contend that the documents attached to 

Nabors's affidavit were not served together with Ptacek's 

affidavit when the Commission's motion for summary 

judgment was served. 

Having determined what parts of the summary 

judgment proof may be considered, we turn now to the 

sufficiency of that proof. Nabors stated that two animals 

from the Malouf herd tested positive for brucellosis, and 

were therefore considered reactors. The test results show 

that the test was conducted at Priest's facility. Further, 

Ptacek stated that he personally observed, at the Van 

Zandt Commission Company, suspect cattle that were 

moved without first being branded "S". 

We conclude [**18] that the summary judgment 

proof showed that Priest had moved suspect cattle without first branding the cattle with the letter "S" as required 

by the Texas Bovine Brucellosis Regulations promulgated by the Commission. Thus, the Commission established its entitlement to summary judgment on this 

ground as a matter of law. 

SUMMARY 

We hold that the trial court properly granted the 

summary judgment concluding that Priest had refused to 

allow Commission representatives to examine records

and that Priest had allowed suspect cattle to be moved 

without first branding them as required by state regulations. We also conclude that the trial court did not abuse 

its discretion in entering the permanent injunction on 

these grounds. We further hold that the evidence failed to 

show that, as a matter of law, Priest failed to keep records as required by law. Thus, we conclude that the trial 

court abused its discretion in entering the injunction on 

this ground. We reverse the summary judgment on this 

ground and remand for further proceedings. In addition, 

the permanent injunction enjoining Priest from failing to 

maintain proper records is dissolved. 

Before Justices Howell, Linda Thomas and Ovard. 

 [**19] Dissenting opinion by Justice Charles Ben 

Howell. 

DISSENT BY: HOWELL 

DISSENT 

 Dissenting Opinion By Justice Charles Ben Howell 

I dissent. The majority opinion will not stand up to 

close analysis. 

(1) The majority concludes by affirming on grounds 

that "the trial court did not abuse its discretion." The 

wrong test has been applied. Summary judgment will not 

lie unless the movant shows his entitlement thereto as a 

matter of law. It is error to award an injunction through 

the summary judgment process unless the movant's proof 

is such that the trial court is wholly without discretion. 

Only where the summary judgment evidence is such that 

it demonstrates that the denial of relief would be a clear 

abuse of discretion may a permanent injunction be entered in response to a motion for summary judgment.

Otherwise, as in the case at hand, the movant has not met 

his burden to show that he is entitled to recover, as a 

matter of law. 

(2) At the outset, the majority recites a four-fold test 

that the movant must satisfy in order to obtain a permanent injunction. This dissent will assume for the time 

being that the State sufficiently proved the existence of 

unlawful conduct. However, the record [**20] is bereft 

of any showing upon the other three elements, imminent 

harm, irreparable injury, and no adequate remedy at law. 

After firmly declaring that such a showing is required, 

the majority has no comment on the State's failure to 

make a showing upon the three latter elements [*881] 

which it has held (and correctly so) to be necessary. 

(3) The majority declares that injunction is a discretionary remedy and declares that appellate review is 

"limited to the question whether the action constituted a 

clear abuse of discretion." However, all of the cases cited 

involved the issuance of an injunction following a trial 

on the merits. As already stated, in order to fulfill the 

summary judgment requirement that the movant show 

himself entitled to judgment "as a matter of law," the 

movant must have demonstrated to the trial court that it 

was without discretion to deny the injunction. 1

1 The majority states that "where the facts conclusively show a party is violating the substantive

law it becomes the duty of the court to enjoin the 

violation," citing City of Houston v. Memorial 
Page 6 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

Bend Util. Co., 331 S.W.2d 418, 422 (Tex. Civ. 

App. -- Houston [1st Dist.] 1960, writ ref'd n.r.e.). 

However, a reading of Memorial Bend reveals 

that its declaration was far too broad. In that case, 

a utility company unilaterally increased its 

monthly rates in violation of a valid city ordinance. The defendant utility gave every indication that it intended to continue charging its unlawful rates unless restrained. The appellate 

court, finding the ordinance valid, held that the 

trial court committed a clear abuse of discretion 

in refusing a temporary injunction. Laying aside 

the fact the Memorial Bend only involved a temporary injunction, there are many differences 

from the case at hand, particularly with respect to

proof that the defendant's unlawful conduct 

would continue unless enjoined and the lack of a 

showing of irreparable injury. 

 [**21] It is rare that a plaintiff by motion for 

summary judgment is able to meet, as a matter of law, 

the rigorous demands of the equity which must be satisfied before an injunction may issue. Equitable relief is 

discretionary relief. The trial court must engage in a balancing of the equities. In the ordinary instance, the applicant must plead and prove that he has no adequate 

remedy at law. Equity will not, in the ordinary instance, 

engage in the enforcement of the criminal law. It is further well established that he who seeks equity must do 

equity, that equity aids the vigilant, that equity will not 

do a vain or useless thing, and that equity only exacts 

restitution, never vengeance. 

The plaintiff Commission appears to rely on two 

statutes for exemption from the principles of equity ordinarily applicable in cases such as this. Neither statute 

expressly entitles state officials or state agencies to equitable relief except in compliance with the rules of general 

application. It is a well established principle that the 

state, its agencies, and its officials enter court and litigate 

on the same basis and subject to the same requirements 

of law as private individuals. We should be very slow 

[**22] to read into the statutes in question any special 

provisions in favor of the Commission. 

The first of the statutes invoked is, by far, the most 

specific in its application. Section 161.131 of the Texas 

Agriculture Code provides that "any citizen" may sue to 

enjoin violations of "this chapter." TEX. AGRIC. CODE 

ANN. § 161.131(a) (Vernon 1982). However, it is 

doubtful if that statute has any application because it 

expressly exempts subchapter F, being sections 161.111 

through 161.116 entitled "Regulation of Livestock Markets." It appears that the violations found by the majority 

simply do not fall within the injunction provision of the 

code. 

Seemingly, the Commission would sidestep this 

problem by arguing that it seeks to enjoin violations of 

its rules (which do little or nothing more than parrot the 

provisions of the statutes) rather than violations of the 

statute pertaining to "Livestock Markets." Id. §§ 161.111 

through 161.116. However, it is well settled that an administrative agency has no power to adopt rules that defeat the plain meaning of statutes. 

When we search for the rule-making authority of the

Commission, we find that the statutes contain several 

grants to the [**23] Commission of authority to promulgate rules. First of all, the exempted subchapter contains rule-making authority. Id. §§ 161.111 through 

161.116. However, if there is no authority to enforce the 

statute by injunction, there can be no authority to enforce 

by injunction the rule-making authority contained in the 

same statute. After all, water can rise no higher than its 

source. 

 [*882] Other parts of the same chapter describe 

the powers and duties of the Commission, and contain 

additional provisions authorizing entry and granting rule 

making power. There are also provisions outside of the 

exempted subchapter relating to the inspection, treatment, quarantine, and sale or marketing of diseased animals. 

Another chapter of the Code, entitled "Livestock 

Commission Merchants," contains, among other things, 

record-keeping and inspection provisions. Id. §§ 

147.001-147.065 (Vernon 1982 & Vernon Supp. 1989). 

Still another chapter entitled "Brucellosis Control Areas," sections 163.001 through 163.087, contains further 

provisions relating to rule-making, entry, reports, testing, 

branding, and handling of diseased animals. Id. §§ 

163.001-163.087 (Vernon 1982 & Vernon Supp. 1989). 

 [**24] The Commission would apparently argue 

that the rules upon which it relies were not promulgated 

under authority of section 161.112, a portion of "this 

chapter" to which the injunction provision is expressly 

inapplicable. Presumably, the argument is that the rules 

were adopted under authorizations found elsewhere from 

sections 161.111 through 161.116 and that the rules are 

therefore not affected by the no-injunction proviso of 

section 161.131(a). 

The easy answer to this argument is that the specific 

controls over the general. Inasmuch as the statutory 

scheme expressly makes the injunction provision inapplicable to "Livestock Markets" and to the rule making 

authority pertaining to "Livestock Markets," we must 

hold that the Commission may not subvert the clear statutory command through the adoption of rules pertaining 

to "Livestock Markets" on the basis of generalized 

rule-making authority contained elsewhere in the Code. 

Any other construction operates to nullify a clear decla-
Page 7 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

ration of legislative intent. TEX. AGRIC. CODE ANN. § 

161.131(a) (Vernon 1982). 

The other statutory authorization for injunctive relief 

upon which the Commission would rely is contained in 

the Administrative [**25] Procedure and Texas Register Act. TEX. REV. CIV. STAT. ANN. art. 6252-13a, § 

19A (Vernon Supp. 1989). This statute has such broad 

and general application that we must be slow indeed to 

import into it any special prerogatives on the part of the 

State, its officials, and its agencies to obtain injunctive 

relief. We must hold that this latter statute is no more 

than a general statement of principle that the State, its 

agencies, and its employees may obtain injunctive relief 

wherever the usages of equity forged out over the centuries make injunctive relief available and appropriate. 

The foregoing analysis cannot, by any means, be interpreted as a holding that the statutes just discussed preclude the Commission from injunctive relief. Sections 

65.001 through 65.031 of the Texas Civil Practice and 

Remedies Code generally regulate the availability of injunction for all litigants. TEX. CIV. PRAC. & REM. 

CODE ANN. §§ 65.001-65.031 (Vernon 1986); see also

TEX. R. CIV. P. 693. This analysis of the injunction statutes returns to the point from which it departed. No, this 

defendant and its operations as a livestock commission 

market are not wholly exempt from being forced through 

the [**26] issuance of an injunction to comply with the 

Agriculture Code. Yes, the writ is available on suit by the 

Commission. However, the Commission enters the 

courts of this State on the same basis as any other litigant, being neither more entitled nor less entitled to injunctive relief than any other citizen. 

One reservation must be made to the foregoing 

statement. A state official or agency cannot be held to the 

exacting standard of irreparable injury to which a private 

litigant is generally held. Where a public official is expressly charged with the enforcement of a regulatory 

scheme, if we were to hold that he must show irreparable 

injury to himself, to state property or to the state treasury, we would obviously be effectively denying the 

State, and those through whom it must act, of injunctive 

relief in virtually all cases. The irreparable injury requirement is satisfied on behalf of the State when it 

shows the threat of clear, immediate and substantial injury, of an irreparable nature, to the protected class or to 

a specific group through violation of the regulatory provision which the [*883] State officer or agency is 

charged by law to enforce. Thus, the irreparable injury 

[**27] requirement was satisfied in the case of Gluck v. 

Texas Animal Health Comm'n, 501 S.W.2d 412, 415

(Tex. Civ. App. -- San Antonio 1973, writ ref'd n.r.e.). In 

that case, the landowner refused to allow his cattle to be 

tested for brucellosis. The trial court issued an injunction 

via motion for summary judgment. The appellate court 

affirmed: "Irreparable harm would be threatened to the 

cattle industry of Frio County if appellant cannot be 

compelled to comply with the statute." An outbreak of 

the disease was then manifest in the area and all herds 

were being mandatorily tested. In order to control the 

spread of the infection, immediate and widespread testing was imperative. The irreparable injury requirement 

was satisfied. Id.

Having outlined the principles upon which this case

should be decided, this dissent turns to the specifics. Our 

majority has found that the defendant committed two

violations of the Agriculture Code. On several occasions, 

defendant refused to allow inspection of his records by 

Commission personnel. Proof that the infraction occurred 

and that it was repeated does not necessarily prove irreparable injury. In fact there was no showing that defendant was attempting [**28] to hide the fact that he was 

engaged in the practice of dealing in diseased cattle, if 

such be the real contention of the plaintiff Commission. 

By his affidavit, defendant has offered the following 

explanation of his conduct: 

 

 I have previously understood from 

other livestock barn owners that they were 

sued by animal owners for revealing or 

producing records. I now understand that 

such records are public in nature and must 

be produced at all times upon request. . . . 

I have no intention of violating the laws 

of the State of Texas in the future. 

 

By its summary judgment, the trial court has deprived defendant of the opportunity to present his testimony in person to the trier of fact. Had the trier of fact 

believed that defendant was sincere and credible, had the 

trier of fact decided that no harm was done, had the trier 

of fact decided that future violations were unlikely, did 

the trier of fact possess the discretion, after the plenary 

hearing, to deny injunctive relief to the Commission? Of 

course, he did. By the same measure, it was error to enter 

a summary judgment in this case. It is not the office of 

summary judgment to substitute trial by affidavit for trial 

upon the [**29] merits with live witnesses for both 

sides. The office of summary judgment is limited to the 

elimination of patently unmeritorious claims. 

The other violation found against defendant was that 

a herd containing two diseased animals passed through 

defendant's premises without being branded in accordance with the rules and statutes. However, unlike Gluck, 

the cattle in question had gone far from defendant's 

premises when summary judgment was rendered. Our 

trial court could do naught but enjoin future conduct of a 

similar nature. However, there was no claim of any con-
Page 8 

780 S.W.2d 874, *; 1989 Tex. App. LEXIS 3142, ** 

tinued pattern of activity, no claim that defendant routinely allowed diseased cattle to be sold through his 

premises, or even that defendant or anyone in authority 

at defendant's premises knew that the cattle in question 

were either subject to the disease or that they had not 

been branded as suspects. 

It is not to be doubted that the statute imposes affirmative duties on a livestock market operator. He has 

the affirmative duty to see to it that diseased cattle are 

not sold through his premises in violation of the law. 

However, in the absence of some showing of dereliction 

of duty, in the absence of some showing of the [**30] 

threat of future violations of the same sort, the trial court 

after hearing the evidence in full must deny injunctive 

relief upon this count. The Commission has not made

prima facie proof of its entitlement to an injunction 

simply by proving one single past incident and offering 

no evidence of culpability and no evidence of any likelihood of recurrence. 

Injunction is a harsh remedy and must be carefully 

regulated and confined to proper cases. Raine v. 

Searles, 302 S.W.2d 486, 487 (Tex. Civ. App. -- El Paso 

1957, no writ). Injunctions are issued only to prevent 

imminent [*884] harm. Lloyd v. Alaska Worldwide, 

Inc., 550 S.W.2d 343, 348 (Tex. Civ. App. -- Dallas 

1977, no writ). In the absence of a showing that the acts 

complained of probably will occur again, acts occurring 

prior to the suit will not furnish a basis for injunctive 

relief. Edgar v. Glenn W. Turner Enterprises, 487 

S.W.2d 847, 849 (Tex. Civ. App. -- Austin 1972, no 

writ); see Knopf v. Standard Fixtures Co., 581 S.W.2d 

504, 506 (Tex. Civ. App. -- Dallas 1979, no writ); 

Burklund v. Hackett, 575 S.W.2d 389, 392 (Tex. Civ. 

App. -- Tyler 1978, no writ). The purpose of injunctive 

relief is to halt [**31] wrongful acts that are threatened 

or in the course of accomplishment, rather than to grant 

relief against past actionable wrongs or to prevent the 

commission of wrongs not imminently threatened. 

Texas Employment Comm'n v. Martinez, 545 S.W.2d 

876, 877 (Tex. Civ. App. -- El Paso 1976, no writ). 

At the trial upon the merits, the Commission will 

further be burdened to present evidence that it has no 

adequate remedy at law. A corollary to this rule provides 

that the remedy of injunction is not available to prevent 

violations of the criminal law. Each of the infractions for 

which defendant has been enjoined is punishable as a 

misdemeanor. In addition, sections 147.021 through 

147.029 of the Agriculture Code require defendant to 

provide a bond. Suit on the bond is an available recourse 

with respect to some, if not all, of the infractions here 

alleged. TEX. AGRIG. CODE ANN. §§ 

147.021-147.029 (Vernon 1982). The Commission has 

asked for and received injunctive relief without a showing that it ever sought these statutory remedies or why 

they would not be effectual. Without such a showing, the 

Commission is not entitled to injunctive relief. 

Gluck does not hold to the contrary. The [**32] real thrust of Gluck is that the immediacy of the situation -- 

the ongoing spread of an epidemic -- required relief that 

the criminal law could not expeditiously provide. If 

Gluck made any broader ruling, it should be disavowed. 

If the Commission desires to bypass the remedies set 

forth on the face of the statute, it must explain its reasons 

for doing so. Without an adequate explanation, injunction must be denied. 

Again, the objective of equity is restitution, not 

vengeance. For the refusal to allow the inspection of records upon request, as required by law, a fine is a singularly appropriate remedy. Why did the Commission forgo such a plain and apparently adequate remedy? The

record is entirely silent. Likewise, isolated instances of 

misbranding can be addressed by the criminal law. Until 

and unless the Commission adequately explains its failure to seek these remedies, injunction must be denied. 

I therefore dissent. For the reasons given, this case 

must be reversed and remanded for trial upon its merits. 
| | Caution

As of: April 7, 2015 5:57 PM EDT

Primate Constr. v. Silver

Supreme Court of Texas

September 15, 1994, Delivered

No. 94-0723

Reporter

884 S.W.2d 151; 1994 Tex. LEXIS 130; 37 Tex. Sup. J. 1216

PRIMATE CONSTRUCTION, INC., PETITIONER v. JIM

SILVER, SUZANNE SILVER AND SILVER

INSPECTION SERVICES, INC., RESPONDENTS

Prior History: [**1] ON APPLICATION FOR WRIT OF

ERROR TO THE COURT OF APPEALS FOR THE

FOURTEENTH DISTRICT OF TEXAS.

Core Terms

recited, court of appeals, return of service, default

Case Summary

Procedural Posture

Defendant employer applied for a writ of error against a

default judgment from the Court of Appeals for the

Fourteenth District of Texas entered in favor of plaintiffs,

who were injured in an automobile accident involving an

employee. The employer claimed that there was error in

that the sheriff's pre-printed return of service did not

show that the employer was served with a version of

plaintiffs' petition naming the employer as a defendant.

Overview

The employee and plaintiffs were involved in an

automobile accident. Plaintiffs were injured and filed

suit. Their original petition named only the employee as

defendant; plaintiffs' second amended petition named

the employer. The trial court granted default judgment

for plaintiffs. The appellate court affirmed the judgment.

The record indicated that the citation was attached to a

true and correct copy of plaintiffs' second amended

petition; however, the sheriff's pre-printed return of

service form indicated that the employer was served

with a true and correct copy of only plaintiffs' original

petition. The court granted the employer's application

for a writ of error, pursuant to Tex. R. App. P. 170, and

reversed the default judgment. The court observed that

in order to be entitled to reversal by writ of error, a party

who did not participate at trial had six months in which to

show error on the face of the record. Thus, because the

sheriff's return showed that the employer was served

with a version of plaintiffs' petition in which the employer

was not named as a defendant, the lower appellate

court erred in finding no error on the face of the record.

Outcome

The court granted the employer's application for writ of

error and reversed a default judgment that was entered

for plaintiffs. The court remanded the cause to the trial

court.

LexisNexis® Headnotes

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > Timing of Appeals

HN1 In order to be entitled to reversal by writ of error, a

party who did not participate at trial has six months in

which to show error on the face of the record.

Civil Procedure > ... > Pleadings > Service of Process >

General Overview

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

HN2 Strict compliance with the rules for service of

citation must affirmatively appear on the record in order

for a default judgment to withstand direct attack. There

are no presumptions in favor of valid issuance, service,
and return of citation in the face of a writ of error attack

on a default judgment.

Civil Procedure > ... > Pleadings > Service of Process >

General Overview

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

HN3 A return of service is not a trivial, formulaic

document. It has long been considered prima facie

evidence of the facts recited therein. The recitations in

the return of service carry so much weight that they

cannot be rebutted by the uncorroborated proof of the

moving party. The weight given to a return is no less

when the recitations impeach the judgment than when

they support it.

Civil Procedure > ... > Pleadings > Service of Process >

General Overview

HN4 It is the responsibility of the one requesting service,

not the process server, to see that service is properly

accomplished. Tex. R. Civ. P. 99(a). This responsibility

extends to seeing that service is properly reflected in

the record. The Rules of Civil Procedure allow for liberal

amendment of the return of service to show the true

facts of service. Tex. R. Civ. P. 118. If the facts as recited

in a sheriff's return, pre-printed or otherwise, are

incorrect and do not show proper service, the one

requesting service must amend the return prior to

judgment.

Opinion by: PER CURIAM

Opinion

[*152] PER CURIAM

On appeal by writ of error from default judgment, we

consider whether Defendant Primate Construction Co.,

Inc. has shown error on the face of the record because

the sheriff's pre-printed return of service states that

Primate Construction was served with a version of the

plaintiff's petition in which it was not named as a

defendant. Pursuant to Rule 170 of the Texas Rules of

Appellate Procedure, a majority of the court grants

Petitioner's application for writ of error and, without

hearing oral argument, reverses the judgment of the

court of appeals and remands the cause to the trial

court.

Jim Silver, Suzanne Silver and Silver Inspection

Services, Inc. originally filed suit against Gary Wayne

Martin, the driver of the car with which they collided and

an employee of Primate Construction, Inc. Primate

Construction was first named as a defendant in Plaintiffs'

Second Amended Petition. The citation in the record

indicates that the citation was attached to a true and

correct copy of Plaintiffs' Second Amended Petition;

however, the pre-printed [**2] return of service form,

signed by the sheriff, indicates that Primate Construction

was served with a true and correct copy of the Plaintiffs'

Original Petition. When Primate Construction failed to

answer, the plaintiffs took a default judgment, from

which Primate Construction appealed by writ of error to

the court of appeals.

HN1 In order to be entitled to reversal by writ of error, a

party who did not participate at trial has six months in

which to show error on the face of the record. Brown v.

McLennan County Children's Protective Services, 627

S.W.2d 390, 392 (Tex. 1982). Because the sheriff's

return shows that the defendant was served with a

version of the plaintiffs' petition in which Primate

Construction was not named as a defendant, the court

of appeals erred in finding no error on the face of the

record.

For well over a century, this court has required that HN2

strict compliance with the rules for service of citation

affirmatively appear on the record in order for a default

judgment to withstand direct attack. Wilson v. Dunn,

800 S.W.2d 833, 836 (Tex. 1990); Ulvade Country Club

v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex.

1985); McKanna v. Edgar [**3] , 388 S.W.2d 927, 929

(Tex. 1965); Flynt v. Kingsville, 125 Tex. 510, 82 S.W.2d

934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876);

Roberts v. Stockslager, 4 Tex. 307 (1849). There are no

presumptions in favor of valid issuance, service, and

return of citation in the face of a writ of error attack on a

default judgment. Ulvade, 690 S.W.2d at 836; McKanna,

388 S.W.2d at 929; Flynt, 82 S.W.2d at 934. Here, the

plaintiffs argue that there is no error because the blanks

filled in on the citation show the correct petition was

attached, while the only evidence to the contrary is a

form on which the sheriff made no affirmative alteration.

This argument ignores the weight given to the recitations

in the sheriff's return as proof of service.

HN3 The return of service is not a trivial, formulaic

document. It has long been considered prima facie

884 S.W.2d 151, *151; 1994 Tex. LEXIS 130, **1

Page 2 of 3
evidence of the facts recited therein. Pleasant Homes v.

Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989);

Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908, 909 (1889)

("The return of the officer imports absolute verity, and

was sufficient to authorize the rendition of judgment

upon default . . . ."). See also Gerland's [**4] Food Fair,

Inc. v. Hare, 611 S.W.2d 113, 116 (Tex. Civ.

App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.);

Pierce-Fordyce Oil Ass'n v. Staley, 190 S.W. 814, 815

(Tex. Civ. App.--Amarillo 1916, no writ). The recitations

in the return of service carry so much weight that they

cannot be rebutted by the uncorroborated proof of the

moving party. Ward v. Nava, 488 S.W.2d 736, 738 (Tex.

1972); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d

206, 209 (Tex. 1950); Gatlin, 11 S.W. at 909;

Pierce-Fordyce, 190 S.W. at 815. The weight given to

the return is no less when the recitations impeach the

judgment than when they support it. 1

[**5] The officer's return does not cease to be prima

facie evidence of the facts of [*153] service simply

because the facts are recited in a form rather than filled

in by the officer. HN4 It is the responsibility of the one

requesting service, not the process server, to see that

service is properly accomplished. Tex. R. Civ. P. 99(a).

This responsibility extends to seeing that service is

properly reflected in the record. The Rules of Civil

Procedure allow for liberal amendment of the return of

service to show the true facts of service. Tex. R. Civ. P.

118. If the facts as recited in the sheriff's return,

pre-printed or otherwise, are incorrect and do not show

proper service, the one requesting service must amend

the return prior to judgment. Under the current state of

the record, the only proof that Primate Construction was

served with anything at all is a return which recites

service of a pleading in which it had not been sued.

Proper service not being affirmatively shown, there is

error on the face of the record, and the court of appeals

erred in holding otherwise. Pursuant to Rule 170 of the

Texas Rules of Appellate Procedure, a majority of the

court grants the application for writ [**6] of error of

Primate Construction Co., Inc. and, without hearing oral

argument, reverses the judgment of the court of appeals

and remands the cause to the trial court.

OPINION DELIVERED: September 15, 1994

1 Primate Construction also argues that the record does not demonstrate the authority of person served to accept service of

process on its behalf; however, the Court of Appeals correctly decided this point. The Sheriff's return recited that the person

served was Primate Construction's registered agent. A registered agent is authorized to accept service of process for the

corporation. Tex. Bus. & Com. Code Ann. § 2.11 (Vernon 1980). The return is prima facie evidence of a person's status as a

registered agent in the same way that it is prima facie evidence of a corporate officer's status. See Pleasant Homes, Inc. v. Allied

Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989).

884 S.W.2d 151, *152; 1994 Tex. LEXIS 130, **3

Page 3 of 3
| | Caution

As of: April 7, 2015 5:58 PM EDT

Quaestor Invs., Inc. v. Chiapas

Supreme Court of Texas

July 1, 1999, Opinion Delivered

No. 98-0835

Reporter

997 S.W.2d 226; 1999 Tex. LEXIS 85; 42 Tex. Sup. J. 1016

QUAESTOR INVESTMENTS, INC., PETITIONER v.

STATE OF CHIAPAS, A STATE OF THE UNITED

MEXICAN STATES, RESPONDENT

Prior History: [**1] ON PETITION FOR REVIEW

FROM THE COURT OF APPEALS FOR THE FIRST

DISTRICT OF TEXAS.

Disposition: Vacated the judgment of the court of

appeals, and dismissed appeal.

Core Terms

state court, remand order, timetable, court of appeals,

writ of error, mailed, federal district court, certified copy,

federal court, revesting, default judgment, writ petition,

recommence

Case Summary

Procedural Posture

Petitioner investment company sought review of a

judgment from the Court of Appeals for the First District

of Texas, which denied petitioner's motion to dismiss

respondent Mexican state's writ of error to appeal a

default judgment. Petitioner asserted that the writ of

error was not filed within the six-month time period

required under Tex. R. App. P. 59.1, following an attempt

by respondents to remove the case to federal court.

Overview

Judgment reversed against petitioner investment

company's motion to dismiss for want of jurisdiction

after respondent Mexican state filed a writ of error to

appeal a default judgment. The court held that the writ

of error was not filed within the required six-month time

period of Tex. R. App. P. 59. Petitioner's obtained a

default judgment against respondent in state court.

With only 14 days remaining in its six-month window to

appeal the default judgment, respondent removed the

case to federal court, which suspended the limitations

period. The federal court found the removal to be

untimely, and remanded the action back to state court.

Respondent filed its writ of error eight months later. The

court held that the appeals timetable recommenced

upon the re-vesting of jurisdiction in the state court,

which occurred when the federal court executed the

remand order and mailed a copy to the state court. The

court rejected the lower court's reasoning that under

Tex. R. Civ. P. 237a, the timetable did not recommence

until the party seeking remand gave notice to the other

party. Accordingly, the court vacated the judgment of

the lower court and dismissed respondent's writ of error.

Outcome

The court vacated the judgment that denied petitioner

investment company's motion to dismiss respondent

Mexican state's writ of error to appeal. The court found

that the appellate timetable recommenced when the

federal court executed the remand order and mailed a

copy to the state court. Finding that respondent failed to

file the writ of error within six months of that event, the

court dismissed respondent's appeal.

LexisNexis® Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

Governments > Legislation > Statute of Limitations > Time

Limitations

HN1 The four elements necessary for review by writ of

error are: (1) the petition must be brought within six

months of the date of judgment; (2) by a party to the suit;

(3) who did not participate in the trial; and (4) error must

be apparent from the face of the record. The six-month

time limit is mandatory and jurisdictional.
Civil Procedure > ... > Removal > Postremoval Remands >

General Overview

Civil Procedure > ... > Removal > Postremoval Remands >

Jurisdictional Defects

Governments > Courts > Clerks of Court

HN2 Remanding a case to state court terminates the

jurisdiction of a federal district court over that case.

There is no requirement that the state court take any

action to reassert jurisdiction. In answering the question

of when a jurisdictional transfer occurs between federal

and state court, most courts have looked to 28 U.S.C.S.

§ 1447(c), which provides, in part, that: a certified copy

of the order of remand shall be mailed by the clerk to the

clerk of the State court. The State court may thereupon

proceed with such case. These courts have interpreted

this language to mean that the federal court loses

jurisdiction once the federal court clerk has mailed a

certified copy of the remand order to the state court

clerk.

Civil Procedure > ... > Removal > Postremoval Remands >

General Overview

Civil Procedure > ... > Removal > Postremoval Remands >

Jurisdictional Defects

HN3 Looking to the language of 28 U.S.C.S. § 1447(c),

as well as § 1447(d), which makes § 1447(c) remands

unappealable, courts recognize the need for a

determinable jurisdictional event after which the state

court can exercise control over the case without further

fear of further federal interference. Courts have then

identified the mailing of the certified copy of the remand

order as the key jurisdictional event, because a remand

order is not self-executing.

Opinion

[*227] Per Curiam

With fourteen days remaining in its six-month window to

appeal a default judgment by writ of error, the State of

Chiapas removed this case to federal district court. The

federal district court remanded to state district court

pursuant to 28 U.S.C. § 1447(c). Approximately eight

months later, Chiapas filed its petition for writ of error.

Quaestor Investments, Inc., moved to dismiss for want

of jurisdiction, arguing that the petition for review was

not timely filed. Thus, the question in this case is when

did the appellate timetable recommence after remand?

The court of appeals held that the timetable did not

recommence until the party seeking remand had given

notice to the other party in the case. State of Chiapas v.

Quaestor Investments, Inc., 982 S.W.2d 144. We

disagree and hold that the appellate timetable

recommences upon the revesting of jurisdiction in the

state court, which occurs when the federal district court

executes the remand order and mails a certified copy of

the remand order to the state court. We conclude in this

case that the State [**2] of Chiapas failed to file its

petition for writ of error within the time frame provided by

the Texas Rules ofAppellate Procedure, and accordingly

vacate the judgment of the court of appeals and dismiss

the appeal.

During the mid-1980s, Quaestor Investments, Inc., a

Texas corporation, purchased coffee from cooperatives

located in the State of Chiapas, a State of the United

Mexican States. After conflicts in their business

relationship, Quaestor sued the cooperatives in a Texas

district court in 1986. The cooperatives did not answer,

and the court granted a default judgment for Quaestor.

In March 1994, Quaestor sued the State of Chiapas,

alleging fraud and conspiracy to prevent Quaestor from

executing the default judgment on the cooperatives'

assets. Chiapas did not answer. On April 19, 1995, the

court granted a default judgment for Quaestor, and in

May 1995, Quaestor began proceedings to collect on its

judgment.

On October 5, 1995, Chiapas removed the lawsuit to

federal court pursuant to 28 U.S.C. § 1441(d). The

federal district court ruled that the removal was untimely

and on December 28, 1995, remanded the case to state

court pursuant to 28 U.S.C. § 1447(c). On February 2,

[**3] 1996, Chiapas appealed the remand order to the

United States Court of Appeals for the Fifth Circuit,

which dismissed the appeal for want of jurisdiction on

August 16, 1996.

On August 29, 1996, Chiapas filed a petition for writ of

error to the court of appeals. 1 Quaestor moved the

court to dismiss Chiapas's petition for writ of error as

untimely. The court of appeals overruled Quaestor's

1

This case concerns a writ of error appeal filed in 1996 under rule 45 of the former Rules of Appellate Procedure. See TEX.

R. APP. P. 45, 49 Tex. B.J. 570 (Tex. 1986, superseded 1997). Restricted appeals replace writ of error appeals under the new

Rules of Appellate Procedure. See TEX. R. APP. P. 30.

997 S.W.2d 226, *226; 1999 Tex. LEXIS 85, **1

Page 2 of 4
motion to dismiss and later reversed the default

judgment and remanded the case to the trial court. 982

S.W.2d at 144-145. Quaestor petitioned for review of

the court of appeals' judgment, complaining about the

denial of its motion to dismiss.

HN1 The four elements necessary for review by writ of

error are: (1) [**4] the petition must be brought within

six months of the date of judgment; (2) by a party to the

suit; (3) who did not participate in the trial; and (4) error

must be apparent from the face of the record. See

Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985).

The six-month time limit is mandatory and jurisdictional.

See Linton v. Smith, 137 Tex. 479, 154 S.W.2d 643, 645

(Tex. 1941).

Quaestor does not contest that filing the removal

suspended the appellate timetable. And Chiapas

acknowledges that when [*228] it removed the case to

federal court on October 5, 1995, it had fourteen days

left to file its petition for writ of error. Thus, the only issue

presented is when the appellate timetable began to run

again.

Quaestor argues that the timetable recommenced when

the federal district court entered its remand order

(December 28, 1995) or when the state court

acknowledged receipt of the remand order (January 10,

1996). Chiapas responds that the timetable

recommenced when the Fifth Circuit dismissed the

appeal of the remand order (August 16, 1996) or when

Chiapas mailed a copy of the remand order to the state

district clerk (September 6, 1996). Either of Chiapas'

dates would make its August [**5] 29, 1996 writ of error

appeal timely while either of Quaestor's dates would

make the appeal untimely.

The court of appeals determined that the state court

reacquired jurisdiction on the date the federal court

clerk mailed a certified copy of the remand order to the

state court clerk. The court further concluded that when

the appellate timetable recommenced was determined

not by the revesting of jurisdiction, but rather depended

upon the procedural implications of that revesting under

Texas law. The court looked to Texas procedural rules

for its answer: (1) Rule of Civil Procedure 237a, which

provides that a defendant need not answer in a

remanded case until fifteen days after the plaintiff files

the remand order with the state court and gives written

notice of the filing to the adverse parties' attorneys; and

(2) current Rule of Appellate Procedure 8, which

provides that affirmative action is required by a party or

the court to reinstate an appeal stayed by a bankruptcy

proceeding. Concluding that these rules require

affirmative action before procedural timetables restart,

the court similarly determined that the appellate

timetable should not recommence until the party seeking

remand [**6] acts affirmatively by giving notice to the

other party. While we agree with the court of appeals'

determination of when state court jurisdiction revested,

we disagree that we must look any further than that date

to determine when the timetable for filing a writ of error

appeal began to run again.

HN2 Remanding a case to state court terminates the

jurisdiction of a federal district court over that case. See

Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir.

1992); Browning v. Navarro, 743 F.2d 1069, 1078 (5th

Cir. 1984). There is no requirement that the state court

take any action (e.g., entering the order in the state

court docket) to reassert jurisdiction. See Mathewson v.

Aloha Airlines, Inc., 82 Haw. 57, 919 P.2d 969, 985-86

(Haw. 1996). In answering the question of when a

jurisdictional transfer occurs between federal and state

court, most courts, including the court of appeals in this

case, have looked to 28 U.S.C. § 1447(c), which

provides, in part, that: "A certified copy of the order of

remand shall be mailed by the clerk to the clerk of the

State court. The State court may thereupon proceed

with such case." These courts have interpreted this

language to mean [**7] that the federal court loses

jurisdiction once the federal court clerk has mailed a

certified copy of the remand order to the state court

clerk. See McClelland v. Gronwaldt, 155 F.3d 507, 513

& n.15 (5th Cir. 1998); Trans Penn Wax Corp. v.

McCandless, 50 F.3d 217, 225 (3d Cir. 1995); Hunt, 961

F.2d at 1081; see also Seedman v. United States Dist.

Court, 837 F.2d 413, 414 (9th Cir. 1988); Browning, 743

F.2d at 1078; Federal Deposit Ins. Corp. v. Santiago

Plaza, 598 F.2d 634, 636 (1st Cir. 1979). But see In re

Lowe, 102 F.3d 731, 735 (4th Cir. 1996) (holding that

jurisdiction returns to the state court when the district

court enters the remand order); New Mexico ex rel.

Village of Los Ranchos De Albuquerque v. City of

Albuquerque, 889 P.2d 204, 206-07 (N.M. Ct. App.

1993) (same).

In McCandless, the Third Circuit Court of Appeals

explained the rationale behind the general rule. HN3

Looking to the language of section 1447(c), as well as

section 1447(d), which makes section 1447(c) remands

[*229] unappealable, the court recognized the need for

a "determinable jurisdictional event after which the state

court can exercise control over the case without further

997 S.W.2d 226, *227; 1999 Tex. LEXIS 85, **3

Page 3 of 4
fear [**8] of further federal interference." 50 F.3d at 225.

The court then identified the mailing of the certified copy

of the remand order as the "key jurisdictional event,"

because a remand order is not self-executing. Id.

We agree with the Third Circuit's reasoning, and

following the majority rule as did the court of appeals,

we hold that jurisdiction revests in the state court when

the federal district court executes the remand order and

mails a certified copy to the state court. To the extent

that earlier Texas court of appeals cases indicate that

jurisdiction revests when the federal court executes the

remand order, we disapprove of that language. See

Brogdon v. Ruddell, 717 S.W.2d 675, 677 (Tex. App. --

Texarkana 1986, writ ref'd n.r.e.); Reimer v. Scott, 666

S.W.2d 384, 385 (Tex. App. -- Houston [14th Dist] 1984,

writ dism'd); Brown v. State Farm Mut. Auto. Ins. Co.,

449 S.W.2d 93, 96 (Tex. Civ. App. -- Fort Worth 1969, no

writ).

We are further persuaded that nothing more is required

to recommence the appellate timetable than the state

court's reaquiring jurisdiction over a case. Just as the

filing of the removal suspends the appellate timetable,

the completed remand [**9] begins it again. No Texas

procedural rule imposes a notice requirement under

these circumstances. The court of appeals erred when

it inferred from civil procedure rule 237a and appellate

rule 8 that any further affirmative action was needed.

In support of its motion to dismiss, Quaestor provided a

certified copy of the federal court docket sheet in this

case. The docket sheet indicates that the remand order

was signed and mailed on December 28, 1995.

Therefore, jurisdiction revested in the state court and

the appellate timetable recommenced on that day. The

time for appealing by writ of error appeal expired

fourteen days later on January 11, 1996. Because the

State of Chiapas did not file its writ of error appeal until

August 29, 1996, the court of appeals did not have

jurisdiction to hear the appeal. Accordingly, without

hearing oral argument, the Court grants Quaestor's

petition for review, vacates the judgment of the court of

appeals, and dismisses the appeal. See TEX. R. APP.

P. 59.1.

OPINION DELIVERED: July 1, 1999

997 S.W.2d 226, *229; 1999 Tex. LEXIS 85, **7

Page 4 of 4
| | Caution

As of: April 7, 2015 5:59 PM EDT

Ragsdale v. Progressive Voters League

Supreme Court of Texas

December 31, 1990, Delivered

No. D-0171

Reporter

801 S.W.2d 880; 1990 Tex. LEXIS 156; 34 Tex. Sup. J. 254

PAUL RAGSDALE, Petitioner v. PROGRESSIVE

VOTERS LEAGUE, Respondent

Prior History: [**1] From Dallas County, Fifth District.

Core Terms

attorney's fees, circumstances, contradicted, trial court,

appeals, interested witness, Election, damages

Case Summary

Procedural Posture

Petitioner election candidate challenged the ruling of

the District Court for Dallas County (Texas), which

granted him injunctive relief but denied him damages

and attorney's fees in his suit against respondent voter

league for violations of the Texas Election Code.

Overview

Petitioner election candidate was seeking reelection as

state representative for a particular county. Petitioner

investigated respondent voter league's campaign

activities and discovered that the campaign treasurer

had not been designated as required by the election

code. Petitioner sued respondent for violations of the

Texas Election Code. He was granted injunctive relief,

but was denied damages and attorney's fees. On

remand, the trial court awarded damages of $ 1 and $

150 for attorney's fees. Petitioner appealed again and

the court of appeals reformed the judgment holding that

the statutory penalty of twice the amount that

respondent had illegally spent on the rival candidate

was required as damages. On final review, the court

held that it was clear that the trial court abused its

discretion in awarding only $ 150 for attorney's fees.

Therefore, the court remanded the cause to the trial

court for a new trial on attorney's fees.

Outcome

The court reversed the decision of the trial court which

only awarded $ 150 in attorney's fees to petitioner

election candidate. On review, the court stated that

there was clear, direct and positive evidence to prove

that petitioner was entitled to a larger award for

attorney's fees from respondent voter league and that

the trial court abused its discretion when it made its

award.

LexisNexis® Headnotes

Civil Procedure > Remedies > Costs & Attorney Fees >

General Overview

Civil Procedure > Appeals > Standards of Review > Abuse

of Discretion

HN1 In awarding attorney's fees the trial court, as the

trier of fact, must take into account various factors such

as: the nature and complexity of the case; the nature of

the services provided by counsel; the time required for

trial; the amount of money involved; the client's interest

that is at stake; the responsibility imposed upon counsel;

and the skill and expertise required. Ordinarily, the

allowance of attorney's fees rests with the sound

discretion of the trial court and will not be reversed

without a showing of abuse of that discretion.

Evidence > ... > Testimony > Credibility of Witnesses >

General Overview

HN2 It is the general rule that the testimony of an

interested witness, such as a party to the suit, though

not contradicted, does no more than raise a fact issue to

be determined by the jury. But there is an exception to

this rule, which is that where the testimony of an

interested witness is not contradicted by any other

witness, or attendant circumstances, and the same is

clear, direct and positive, and free from contradiction,

inaccuracies, and circumstances tending to cast

suspicion thereon, it is taken as true, as a matter of law.
Evidence > ... > Testimony > Credibility of Witnesses >

General Overview

Evidence > ... > Credibility of Witnesses > Impeachment >

General Overview

HN3 The exception to the interested witness rule is

especially true where the opposing party has the means

and opportunity of disproving the testimony, if it is not

true, and fails to do so. In other words, failure to

contradict is another factor to be considered by the

court; but it does not necessarily preclude the holding

that a fact issue is raised when there are circumstances

in evidence tending to discredit or impeach the

testimony of the interested witness.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Remedies > Costs & Attorney Fees >

General Overview

Evidence > ... > Testimony > Credibility of Witnesses >

General Overview

HN4 In order for the court to award an amount of

attorneys' fees as a matter of law, the evidence from an

interested witness must not be contradicted by any

other witness or attendant circumstances and the same

must be clear, direct and positive, and free from

contradiction, inaccuracies and circumstances tending

to case suspicion thereon. The court, as a trier of fact,

may award attorneys' fees as a matter of law in such

circumstances, especially when the opposing party has

the means and opportunity of disproving the testimony

or evidence and fails to do so. In default judgment

situations, the same rule applies if there is evidence

presented to the trial court which meets the same

criteria.

Counsel: Hughes, Mr. Jerry Lee, Bliss & Hughes,

Dallas, Texas, Collins, Mr. John E., Dallas, Texas, for

Petitioner.

Hicks, Sr., Mr. Donald W., Law Ofcs of Donald W. Hicks,

Sr., P.C., Dallas, Texas, for Respondent.

Opinion by: PER CURIAM

Opinion

[*881] Paul Ragsdale sued the Dallas County

Democratic Progressive Voters League for violations of

the Election Code. 1 He was granted injunctive relief,

but was denied damages and attorney's fees. 743

S.W.2d 338. On remand the trial court awarded

damages of $ 1 and $ 150 for attorney's fees. Ragsdale

again appealed and the court of appeals reformed the

judgment holding that the statutory penalty of twice the

amount that the committee had illegally spent on the

rival candidate is required; and, holding an abuse of

discretion, severed the attorney's fees portion

remanding that issue for a new trial. 790 S.W.2d 77. We

affirm the judgment of the court of appeals regarding

the damages issue, but reverse and render judgment

for Ragsdale awarding the amount of attorney's fees

that evidence at trial showed to be reasonable and

uncontroverted in the amount of $ 22,500.

[**2] Paul Ragsdale was seeking reelection as state

representative from Dallas County District 110. The

PVL was organized in 1936 as an educational purpose

group. The group had evolved to the point that it

sponsored activities that promoted awareness of issues

affecting minorities. Although the PVL had previously

endorsed Paul Ragsdale, it was active in the primary

election in 1986 supporting an opponent. Ragsdale

investigated the PVL's campaign activities and

discovered that the campaign treasurer had not been

designated as required by the Election Code. Ragsdale

filed suit seeking an injunction and damages. This

decision today is subsequent to two trials and their

attendant appeals.

The court of appeals has correctly awarded the statutory

penalty for the violations of the Election Code. The

Code also authorizes an award of reasonable attorney's

fees. 2 Uncontroverted evidence was presented at trial

that the attorney's fees for this cause of action, which

began with a temporary injunction in April 1986, totaled

$ 22,500. HN1 In awarding attorney's fees the trial

court, as the trier of fact, must take into account various

factors such as: the nature and complexity of the case;

the nature [**3] of the services provided by counsel; the

1

The suit was filed under sections 251.002(f)(2), 251.002(g) and 251.008(a) of the Texas Elation Code. Now codified at Tex.

Elec. Code Ann. § 253.031 (Vernon's Supp. 1990).

2 Now codified at § 253.131(d)(2) Tex. Elec.Code Ann. (Vernon's Supp. 1990).

801 S.W.2d 880, *880; 1990 Tex. LEXIS 156, **1

Page 2 of 3
time required for trial; the amount of money involved;

the client's interest that is at stake; the responsibility

imposed upon counsel; and the skill and expertise

required. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188

S.W.2d 155 (1945) (time required); Vaughn v. Gunter,

458 S.W.2d 523 (Tex.Civ.App. -- Dallas), aff'd, 461

S.W.2d 599 (Tex. 1970) (client's interest and money

involved); Weatherly v. Longoria, 292 S.W.2d 139 (Tex.

Civ. App. -- San Antonio 1956, writ ref'd n.r.e.) (skill

required). Accord Tuthill v. Southwestern Public Service

Co., 614 S.W.2d 205 (Tex Civ. App. -- Amarillo 1981,

writ ref'd n.r.e.). Ordinarily, the allowance of attorney's

fees rests with the sound discretion of the trial court and

will not be reversed without a showing of abuse of that

discretion.

[*882] HN2 It is the general rule that the testimony of an

interested witness, such as a party to the suit, though

not contradicted, does no more than raise a fact issue to

be determined by the jury. But there is an exception to

this rule, which is that where the testimony of an

interested witness is not contradicted by any other

witness, [**4] or attendant circumstances, and the

same is clear, direct and positive, and free from

contradiction, inaccuracies, and circumstances tending

to cast suspicion thereon, it is taken as true, as a matter

of law.

Cochran v. Wool Growers Central Storage Co., 140

Tex. 184, 166 S.W.2d 904, 908 (1942).

Accord, McGilliard v. Kuhlmann, 722 S.W.2d 694 (Tex.

1986).

HN3 The exception to [this] interested witness rule . . . is

especially true where the opposing party has the means

and opportunity of disproving the testimony, if it is not

true, and fails to do so . . . . In other words, failure to

contradict is another factor to be considered by the

court; but it does not necessarily preclude the holding

that a fact issue is raised when, as here, there are

circumstances in evidence tending to discredit or

impeach the testimony of the interested witness.

Anchor Casualty Co. v. Bowers, 393 S.W.2d 168,

169-170 (Tex. 1965)(emphasis in original).

[**5] While the present case fits the exception to the

general rule, we do not mean to imply that in every case

when uncontradicted testimony is offered it mandates

an award of the amount claimed. For example, even

though the evidence might be uncontradicted, if it is

unreasonable, incredible, or its belief is questionable,

then such evidence would only raise a fact issue to be

determined by the trier of fact. HN4 In order for the court

to award an amount of attorneys' fees as a matter of

law, the evidence from an interested witness must not

be contradicted by any other witness or attendant

circumstances and the same must be clear, direct and

positive, and free from contradiction, inaccuracies and

circumstances tending to case suspicion thereon. The

court, as a trier of fact, may award attorneys' fees as a

matter of law in such circumstances, especially when

the opposing party has the means and opportunity of

disproving the testimony or evidence and fails to do so.

In default judgment situations, the same rule applies if

there is evidence presented to the trial court which

meets the same criteria. In this situation the evidence

may be uncontradicted, but the trial judge could find

some of the [**6] claimed fees to be unreasonable,

unwarranted, or some other circumstance which would

make an award of the uncontroverted claim wrong. In

the present case it is clear that the trial court abused its

discretion in awarding only $ 150 in attorney's fees.

Ragsdale's attorneys testified as to the time involved,

the nature of the services that were rendered, and the

reasonableness of the fees charged. This evidence was

uncontroverted. We hold the evidence is clear, direct

and positive, and not contradicted by any other witness

or attendant circumstances, and there is nothing to

indicate otherwise. In the interest of judicial economy,

we reverse the judgment of the court of appeals that

remanded the attorney's fees issue for a new trial and

render judgment for Ragsdale.

Accordingly, we grant the application of Paul Ragsdale,

and pursuant to Tex. R.App. P. 170, without hearing oral

argument, a majority of this court affirms that portion of

the court of appeals judgment awarding damages and

penalties under the Election Code, and reverses that

portion which remanded the cause to the trial court for a

new trial on attorney's fees. Judgment is rendered in

favor of Ragsdale for attorney's fees [**7] in the amount

of $ 22,500.

801 S.W.2d 880, *881; 1990 Tex. LEXIS 156, **3

Page 3 of 3
Page 1 

Positive 

As of: Mar 30, 2015 

REED ELSEVIER, INC. d/b/a LEXIS NEXIS, Appellant v. CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, COUNTY OF 

DALLAS, AND CITY OF FARMERS BRANCH, Appellees 

No. 05-04-00821-CV 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS 

180 S.W.3d 903; 2005 Tex. App. LEXIS 10313

December 12, 2005, Opinion Filed 

SUBSEQUENT HISTORY: Released for Publication January 17, 2005. 

Petition for review denied by Carrollton-Farmers 

Branch Indep. Sch. Dist. v. Reed Elsevier, Inc., 2006 Tex. 

LEXIS 452 (Tex., May 5, 2006)

PRIOR HISTORY: [**1] On Appeal from the 

191st Judicial District Court, Dallas County, Texas. Trial 

Court Cause No. TX03-41181-T-J. 

DISPOSITION: REVERSED and REMANDED. 

COUNSEL: For APPELLANT: Mr. Bryan P. Neal, 

Thompson & Knight, P.C., Dallas, TX. 

For APPELLEE: Mr. Daniel K. Bearden, Dallas, TX; 

Gregg M. McLaughlin, Perdue, Brandon, Fielder, Collins 

& Mott, L.P., Arlington, TX; Edward Lopez, Jr., Shelia 

Fuqua Carter, Linebarger Goggan Blair Sampson, LLP,

Dallas, TX. 

JUDGES: Before Justices Moseley, Francis, and Mazzant. Opinion By Justice Moseley. 

OPINION BY: JIM MOSELEY 

OPINION 

 [*904] Opinion By Justice Moseley 

Reed Elsevier, Inc. d/b/a Lexis Nexis brings a restricted appeal from a default judgment in favor of Carrollton-Farmers Branch Independent School District 

(CFBISD), County of Dallas, and City of Farmers 

Branch for delinquent property taxes. Reed Elsevier

contends there is fatal error shown on the face of the 

return of service. Reed Elsevier argues service of process 

was defective because the return does not identify the 

person served as an agent of its corporate registered 

agent. We agree and we reverse the trial court's judgment 

and remand the cause for further proceedings consistent 

with this opinion. 

I. Factual and Procedural Background 

In its original petition for delinquent ad valorem 

taxes, CFBISD described defendant as follows: 

 

 Reed Elsevier, Inc. d/b/a Lexis Nexis 

Successor in Interest to Courtlink 

Corporation d/b/a JusticeLink, 

by serving Registered Agent, Lexis 

Document Services, Inc., at: 

3610-2 Josey [**2] Lane, Suite # 

223 Carrollton, TX 75007 

 
Page 2 

180 S.W.3d 903, *; 2005 Tex. App. LEXIS 10313, ** 

The citation for personal service is addressed to the same 

above description and address for defendant. The return 

of service indicates service was completed by "delivering 

to the within named Reed Elsevier Inc DBA Lexis Nexis 

Successor in Interest to Courtlink Corporation DBA JusticeLink By delivering to Reg Agent Lexis Document 

Services Inc By delivering to Danielle Smith." 

Reed Elsevier did not file an answer or appear in 

court and a default judgment was signed on December 3, 

2003. Reed Elsevier filed a notice of restricted appeal, 

with a motion for extension of time to file restricted appeal, on June 16, 2004. Appellant's motion for extension 

was granted by this Court, and its restricted appeal 

deemed timely. 

II. Restricted Appeal 

A restricted appeal must: (1) be brought within six

months after the trial court signs the judgment; (2) by a 

party; (3) who did not participate in the trial; and (4) the 

error complained of must be apparent on the face of the 

record. TEX. RS. APP. P. 26.1(c), 30; Sutton v. Hisaw & 

Assocs. [*905] Gen. Contractors, Inc., 65 S.W.3d 281, 

284 (Tex. App.-Dallas 2001, pet. denied). For purposes 

[**3] of a restricted appeal, the face of the record consists of all the papers on file before the judgment as well 

as any reporter's record. Norman Communications v. 

Texas Eastman Co., 955 S.W.2d 269, 270, 41 Tex. Sup. 

Ct. J. 83 (Tex. 1997). In this case, the first three elements 

of a restricted appeal are not contested. Rather the dispute concerns whether there is error on the face of the 

record. 1

1 There is no reporter's record in this appeal. 

On the face of clerk's record, we can not tell 

whether Reed Elsevier and its registered agent 

Lexis Document Services, Inc. are domestic or 

foreign corporations. However, such status is not 

critical to our resolution of this restricted appeal. 

Cf. Infra-Pak (Dallas), Inc. v. Narmour, 852 

S.W.2d 565, 567 (Tex. App.-Dallas 1992, no writ)

(concluding in regular appeal no distinction between proof of proper service on a foreign and a 

domestic corporation). 

III. Applicable Law on Service of Process 

A default judgment cannot withstand direct attack 

by a defendant [**4] who complains he was not served 

in strict compliance with applicable requirements. Wilson 

v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60 

(Tex. 1990). In a direct attack on a default judgment, 

there are no presumptions in favor of valid issuance, service, and return of citation. See Primate Constr. Inc. v. 

Silver, 884 S.W.2d 151, 152, 37 Tex. Sup. Ct. J. 1216 

(Tex. 1994) (per curiam). The return of service has long 

been considered prima facie evidence of the facts recited 

therein. Id. at 152. In a restricted appeal, defective service of process constitutes error apparent on the face of 

the record. See id. at 153. 

A domestic or foreign corporation authorized to 

transact business in Texas may be served with process 

through its president, any vice president, or its registered 

agent. See TEX. BUS. CORP. ACT ANN. Arts. 2.11, 8.10

(Vernon 1980). A corporation may act as the registered 

agent for another domestic or foreign corporation. See

TEX. BUS. CORP. ACT ANN. Art. 2.09 (Vernon Supp. 

2004-05), Art. 8.08 (Vernon 1980). Although a corporation may act as the registered agent for another corporation, [**5] a corporation is not a person capable of 

accepting process, and must be served through its agents. 

See All Commercial Floors, Inc. v. Barton & Rasor, 97 

S.W.3d 723, 727 (Tex. App.-Fort Worth 2003, no pet.). 

The record must show whether the person served was in 

fact such an agent for the corporation acting as the registered agent. See Nat'l. Med. Enter. of Texas, Inc. v. 

Wedman 676 S.W.2d 712, 715 (Tex. App.-El Paso 1984,

no writ) (holding domestic corporate defendant was 

properly served where return identified person served 

with citation as registered agent for defendant's corporate 

registered agent); White Motor Co. v. Loden, 373 S.W.2d 

863, 865 (Tex. Civ. App.-Dallas 1963, no writ) (holding 

record did not show person served with citation was authorized agent for accepting service for corporate registered agent for foreign corporation defendant). 

IV. Discussion 

In this case, the return does not indicate the capacity 

of "Danielle Smith" or why she was served with process. 

Her name is handwritten on the face of the citation

without designation of her status with Lexis Document 

Services, Inc. The return merely recites service [**6] 

"by delivering to Danielle Smith," without explaining her 

authority to receive service. Neither the return nor any 

other portion of the record designates her authority to 

receive service on behalf of Reed Elsevier's registered 

agent. Without indication of her capacity to receive service on the face of [*906] the record, the granting of 

the default judgment was improper. See Primate Constr. 

Inc., 884 S.W.2d at 153; see also Nat'l. Med. Enter. of 

Texas, Inc., 676 S.W.2d at 715; White Motor Co., 373 

S.W.2d at 865. 

V. Conclusion 

Having determined there is error on the face of the

record regarding proper service on Reed Elsevier's registered agent, we find the trial court lacked jurisdiction to 

enter the default judgment against Reed Elsevier. Finding this error dispositive of this appeal, we do not need to 

address appellant's remaining issues. See TEX. R. APP. 
Page 3 

180 S.W.3d 903, *; 2005 Tex. App. LEXIS 10313, ** 

P. 47.1. We reverse the trial court's judgment and remand this case for further proceedings. JIM MOSELEY 

JUSTICE 
Page 1 

Positive 

As of: Mar 30, 2015 

MARIA REGALADO, D/B/A, FRED REGALADO BAIL BONDS, Appellant, v. 

THE STATE OF TEXAS, Appellee. 

NUMBER 13-95-271-CV 

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS 

CHRISTI 

934 S.W.2d 852; 1996 Tex. App. LEXIS 4973

November 7, 1996, delivered 

November 7, 1996, filed 

PRIOR HISTORY: [**1] On appeal from the 

275th District Court of Hidalgo County, Texas. 

DISPOSITION: Affirmed 

COUNSEL: For APPELLANT: Crispin (C.J.) Quintanilla, III, Quintanilla & Palacios, Attorneys at Law, 

McAllen, TX. Keith C. Livesay, Attorney at Law, 

McAllen, TX. 

For APPELLEE: Rene Guerra, District Attorney, Theodore C. Hake, William McPherson, Traci A. Sellman, 

Assistant District Attorneys, Edinburg, TX. 

JUDGES: Before Chief Justice Seerden and Justices 

Dorsey and Chavez. Opinion by Chief Justice Seerden 

OPINION BY: ROBERT J. SEERDEN 

OPINION 

 [*853] OPINION 

Opinion by Chief Justice Seerden 

Maria Regalado, appellant, files this appeal by writ 

of error, asking this court to overturn a default judgment 

entered against her. By two points of error, she asserts 

that the trial court erred in granting a default judgment 

because the citation and service of process were defective. We affirm. 

Maria Regalado, d/b/a Fred Regalado Bail Bonds, 

surety on the bond of Armando Pineda, appeals from a 

default judgment entered for the State in a bond forfeiture proceeding. Pineda failed to appear at arraignment, a 

judgment nisi issued, and service of process was effected 

on appellant by way of scire [**2] facias commanding her to appear and show cause why the judgment of 

forfeiture should not become final. Appellant failed to 

appear or answer the scire facias and a default judgment 

was rendered against her. 

Upon learning of entry of the default judgment, appellant filed a motion for new trial seeking to have the 

default judgment set aside. After a hearing, the trial court 

orally granted the motion for new trial; however, the trial 

court signed the written order granting the new trial after 

its plenary power to do so had lapsed. Upon motion by 

the State, the trial court, because of lack of jurisdiction, 

subsequently rescinded the order granting the new trial. 

Appellant now attacks the default judgment by a writ of 

error to this court. Specifically, appellant raises two 

points of error challenging the validity of the service of 

process in the case below. 

To prevail in her appeal by writ of error, appellant 

must (1) file the writ within six months after the final 

judgment is signed; (2) be a party to the lawsuit; (3) not 
Page 2 

934 S.W.2d 852, *; 1996 Tex. App. LEXIS 4973, ** 

have participated in the actual trial of the case; and (4) 

show error apparent from the face of the record. Stubbs 

v. Stubbs, 685 S.W.2d 643, 644 (Tex. [**3] 1985); 

Flores v. H.E. Butt Grocery Co., 802 S.W.2d 53, 55 (Tex. 

App.--Corpus Christi 1990, no writ). The State concedes 

that the first three requirements were met. Therefore, at 

issue is whether there is error apparent on the face of the 

record. 

By her first point of error, appellant claims that the 

service of process was defective because she was not 

personally served with the scire facias. Specifically, she 

contends that the hand-written notation "c/o Maria Regalado" on the return of the citation, when given a fair, 

reasonable and natural construction, indicates that process was not served on her personally. 

When a default judgment is attacked by writ of error, it is essential that the record affirmatively show strict 

compliance with the provided manner and mode of service of process. Primate Constr. v. Silver, 884 S.W.2d 

151, 152 (Tex. 1994); McKanna v. Edgar, 388 S.W.2d 

927, 929 (Tex. 1965); HB & WM, Inc. v. Smith, 802 

S.W.2d 279, 281 (Tex. App.--San Antonio 1990, no 

writ). A default judgment cannot withstand a direct attack by a defendant who shows that he was not served in 

strict compliance with the law. Wilson v. Dunn, 800 

S.W.2d 833, 836 (Tex. [**4] 1990). Failure to affirmatively show strict compliance with the rules of civil procedure renders the attempted service invalid, of no effect, 

and incapable of supporting a default judgment. Uvalde 

Country Club v. Martin [*854] Linen Supply Co., Inc, 

690 S.W.2d 884, 885 (Tex. 1985). Accordingly, when 

such strict compliance is NOT demonstrated, there is 

error on the face of the record, and reversal of the judgment is warranted. 

Strict compliance, however, does not require "obeisance to the minutest detail." Herbert, 915 S.W.2d 866, 

871 (Tex. App.--Houston [1st Dist.] 1995, no writ); Ortiz 

v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 

613 (Tex. App.--Corpus Christi 1996, writ requested). As 

long as the citation and return show, with reasonable 

certainty, that the citation was served on the defendant in 

the suit, service of process will not be invalidated. See 

Ortizv. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 

at 613 (the omission of the accent mark and the substitution of the symbol " at " for the word "at" are akin to the 

errors that do not invalidate service); Payne & Keller Co. 

v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [**5] 

[14th Dist.] 1987, writ ref'd n.r.e.) (judgment upheld 

where petition and citation reflected registered agent 

"Philippe Petitfrere," the return reflected "Philipee Petitfreere"); Popkowsi v. Gramza, 671 S.W.2d 915, 918

(Tex. App.--Houston [1st Dist.] 1984, no writ) (judgment 

upheld where there was dispute of fact whether handwritten return of service said "Michael Poprowski" or 

"Michael Popkowski"). 

Additionally, both parties point out that a return 

should be given a fair, reasonable, and natural construction to its intent and meaning. Brown-McKee, Inc. v. J. 

F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ. 

App.--Texarkana 1975, no writ)(in a writ of error proceeding directly attacking default judgment, the return 

should receive a fair, reasonable, and natural construction, and effect given to its plain intent and meaning). 

See also Garza v. Zavala, 905 S.W.2d 312, 313 (Tex. 

App.--San Antonio 1995, no writ); Bavarian Autohaus, 

Inc. v. Holland, 570 S.W.2d 110, 114 (Tex. Civ. 

App.--Houston [1st Dist.] 1978, no writ). In fact, both 

parties concede that the validity of appellant's first point 

of error (as well as the service of [**6] process in this 

case) is contingent upon the fair and reasonable construction of the "c/o" symbol. 

In the case at hand, the citation names "Maria Regalado, DBA Fred Regalado Bail Bond" as the defendant

and states that a true copy was "delivered to SURETY 

MARIA REGALADO on the 15 day of 12, 1994." The 

return states that a true copy of the citation was delivered 

to "Name: c/o Maria Regalado." In our opinion, the only 

fair and reasonable construction of the officer's return 

indicates that the executing officer left the citation in the 

care of Maria Regalado; that is, in Maria Regalado's own 

hands. We conclude that the return and the citation, giving both a fair, reasonable, and natural interpretation, 

show with reasonable certainty that the citation was personally served on Maria Regalado. Accordingly, we hold 

that the record affirmatively shows that Maria Regalado, 

doing business of Fred Regalado Bail Bonds, was personally served in strict compliance with the provided 

manner and mode of service of process. Appellant's first 

point of error is overruled. 

In her second point of error, appellant contends that 

the trial court erred in granting a default judgment because the citation [**7] was improper. Appellant maintains that the citation is improper because it implies that 

a petition was being served when, in fact, no petition was 

either filed or served. Consequently, according to appellant, the resulting default judgment rendered herein was 

also improper. We disagree. 

Keeping in mind the need to show strict compliance 

with the rules of service and citation in the face of a direct attack on a default judgment (see above), we note 

that a bail bond forfeiture proceeding is a criminal proceeding governed by the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 22 (Vernon 

1989 and Supp. 1997). All forfeiture proceedings declared upon a bond shall be governed by the same rules 

that apply to other civil suits. See TEX. CODE CRIM. 
Page 3 

934 S.W.2d 852, *; 1996 Tex. App. LEXIS 4973, ** 

PROC. ANN. art. 22.10 (Vernon 1989 and Supp. 1997); 

Dees v. State, 865 S.W.2d 461, 462 (Tex. Crim. App.

1993); State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. 

App. 1990). Furthermore, in a bond forfeiture proceeding, the citation is sufficient if it is in the form provided 

for citations in civil cases. [*855] TEX. CODE. CRIM. 

PROC. ANN. art. 22.04 (Vernon 1989 and Supp. 1997). 

Article 22.04 provides: 

 

 A [**8] citation shall be sufficient if 

it be in the form provided for citations in 

civil cases in such court; provided, however, that a copy of the judgment of forfeiture entered by the court shall be attached to the citation and the citation shall 

notify the parties cited to appear and show 

cause why the judgment of forfeiture 

should not be made final. 

 

TEX. CODE CRIM. PROC. ANN. art. 22.04 (Vernon 

1989 and Supp. 1997). 

Significant to the resolution of this point of error, is 

the fact that the Texas Rules of Civil Procedure command that reference be made in a civil citation to the 

filed petition which commenced the suit. See TEX. R. 

CIV. P. 99. Rule 99 provides: 

 

 c. Notice. The citation shall include the 

following notice to the defendant: "You 

have been sued. You may employ an attorney. If you or your attorney do not file 

a written answer with the clerk who issued the citation by 10:00 a.m. on the 

Monday next following the expiration of 

twenty days after you were served this citation and petition, a default judgment 

may be taken against you." 

 

TEX. R. CIV. P. 99(c). It is this exact language, along 

with other similar references, that appellant points to in 

support [**9] of her claim that the citation and the resulting default judgment rendered herein is improper. 

We find that the citation in this case was in the form 

provided by TEX. R. CIV. P. 99. In fact, the language 

found in the first paragraph of the citation is the exact 

language prescribed by Rule 99. See TEX. R. CIV. P. 

99(c). Additional references to a petition, or the fact that 

the judgment nisi is referred to as a petition, do not make 

it any less clear that appellant was served with the appropriate documents. 1

 As stated above, "even strict 

compliance does not require such absolute obeisance to 

the minutest detail." Herbert, 915 S.W.2d at 871; Ortiz v. 

Avante Villa at Corpus Christi, Inc., 926 S.W.2d at 613. 

1 The citation or scire facias provided by the 

statute constitutes the State's pleadings in a bond

forfeiture case. Blue v. State, 170 Tex. Crim. 

449, 341 S.W.2d 917, 919 (1960); Pollock v. 

State, 164 Tex. Crim. 404, 299 S.W.2d 294, 296 

(1956). In such a proceeding, the scire facias

serves the purpose of both a petition and a citation. Hokr v. State, 545 S.W.2d 463, 467 (Tex. 

Crim. App. 1977) (citing Hester v. State, 15 Texas Ct. App. 418 (1884)). A separate petition is not 

necessary. 

 [**10] Additionally, as required by TEX. CODE 

CRIM. PROC. ANN. art. 22.04, a copy of the judgment 

nisi was attached and the citation notified the parties 

cited to appear and show cause why the judgment should 

not be made final. The citation in this case was in compliance with the requirements of Article 22 of the Code 

of Criminal Procedure. Accordingly, we find appellant's 

claim of a fatal defect in the citation to be without merit 

and overrule appellant's second point of error. 

Having overruled all points of error, we affirm the

judgment of the trial court. 

ROBERT J. SEERDEN, Chief Justice 

Opinion delivered and filed this the 7th day of November, 1996. 
Page 1 

Caution 

As of: Mar 30, 2015 

ROSEDALE PARTNERS, LTD., Relator v. 131ST JUDICIAL DISTRICT COURT, 

BEXAR COUNTY, TEXAS, JUDGE PETER MICHAEL CURRY, and JUDGE 

CAROL HABERMAN, Respondents 

Cause No. 04-93-00732-CV 

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO 

869 S.W.2d 643; 1994 Tex. App. LEXIS 344

January 12, 1994, Delivered 

January 12, 1994, Filed 

PRIOR HISTORY: [**1] From the 166th District Court of Bexar County. Trial Court No. 

93-CI-03259. Peter Michael Curry and Carol Haberman, 

Judges Presiding 

DISPOSITION: RELATOR'S PETITION FOR 

WRIT OF MANDAMUS DENIED. 

COUNSEL: For Relator: Richard Jackson, RICHARD 

JACKSON & ASSOCIATES, 3738 Oak Lawn, Suite 

101, Dallas, TX 75219. 

For Respondents: Bernard Lifshutz, c/o John M. Killiam, 

445 West Sunset Road, San Antonio, TX 78209. 

JUDGES: Sitting: Shirley W. Butts, Justice, Orlando 

Garcia, Justice, Tom Rickhoff, Justice 

OPINION BY: ORLANDO GARCIA 

OPINION 

 [*644] OPINION 

ON RELATOR'S PETITION FOR WRIT OF 

MANDAMUS 

Opinion by: Orlando Garcia, Justice 

This is an original proceeding in which the relator, 

Rosedale Partners, Ltd., is seeking to: (1) dissolve an 

injunction enjoining a sheriff's sale and other execution 

efforts, (2) dissolve an order granting real party's motion 

for new trial, and (3) reinstate previous orders allowing 

execution on real party's property. The issue presented is 

whether the orders complained of were signed after the 

trial court lost its plenary power over the underlying default judgment. 

The determination of whether the trial court retained 

jurisdiction to issue the complained of [**2] orders 

hinges on the finality of the default judgment. Relator 

contends the default judgment was a final judgment even 

though it did not provide all the relief requested. The real 

party in interest, Bernard Lifshutz, maintains that the 

judgment was interlocutory because it did not expressly 

or by implication dispose of the requests for attorney's 

fees and prejudgment interest. We agree that the default 

judgment did not dispose of all issues expressly or by 

implication and therefore is interlocutory. Thus, the trial 

court retained plenary power to grant the new trial and to 

issue the orders terminating the collection efforts. 

In January of 1993, Rosedale Partners, Ltd. 

(Rosedale) purchased an unpaid promissory note executed by Bernard L. Lifshutz. According to Rosedale, the 

unpaid deficiency balance at the time it purchased the 

note was $ 7,047,841.20. On March 5, 1993, Rosedale
Page 2 

869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, ** 

filed suit against Mr. Lifshutz seeking to recover: (1) the 

unpaid balance of $ 7,047,841.20, (2) interest on this 

balance from the date of purchase until date of payment, 

and (3) attorney's fees. On May 24, 1993, the trial court 

entered a default judgment and awarded Rosedale $ 

7,047,841.20, as the past due [**3] principal and interest at the time of filing suit, and post judgment interest. 

No motion for new trial was filed within thirty days of 

the entry of the default judgment. 

Following the default judgment, Rosedale conducted 

post judgment discovery. Pursuant to a subpoena, Mr. 

Lifshutz appeared for a post judgment deposition and 

produced voluminous documents to Rosedale. Based on

the information obtained from the deposition, Rosedale 

secured: (1) the entry of a charging order concerning the 

recovery of partnership interests, (2) the issuance of two 

writs of garnishment, and (3) the issuance of [*645] 

an execution on the judgment with the sheriff of Bexar 

County posting certain personal property for sheriff's 

sale. Mr. Lifshutz counter by filing a motion to set aside 

the default judgment, a motion to dissolve the order of 

the sheriff's sale, a motion to dissolve the writs of garnishment, and an application for an injunction. All of the 

motions were based upon the premise that the default 

judgment was interlocutory. Judge Curry entered the

order dissolving the writs of garnishment, dissolving the 

execution and order of sheriff's sale, and granting a new 

trial. Judge Haberman entered [**4] the injunction order and the order dismissing the charging order. 

Rosedale then filed its petition for writ of mandamus 

requesting that the previous orders of the trial court be 

reinstated and the injunction enjoining its collections 

efforts be dissolved. Rosedale contends that the default 

judgment in the underlying case was final and could not 

be affected or modified by the respective trial judges on 

any basis. 

I. MANDAMUS REVIEW 

A writ of mandamus will issue to correct a clear 

abuse of discretion by a trial court or to correct a violation of a duty imposed by law if no other remedy at law 

is available to the relator. Walker v. Packer, 827 S.W.2d 

833, 839 (Tex. 1992, orig. proceeding); Johnson v. 

Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 

1985, orig. proceeding). An abuse of discretion occurs 

when a trial court "reaches a decision so arbitrary and 

unreasonable as to amount to a clear and prejudicial error 

of law. Johnson, 700 S.W.2d at 917. A trial court does 

not have discretion in determining what the law is or in 

applying the law to the given facts. Walker, 827 S.W.2d 

at 840. The clear failure by a trial court to analyze or 

apply the law correctly [**5] constitutes an abuse of 

discretion which could result in appellate reversal by 

extraordinary writ. Id. However, mandamus will not issue when a clear and adequate remedy at law exists such 

as a normal appeal. The writ will issue "only in situations 

involving manifest and urgent necessity and not for

grievances that may be addressed by other remedies." Id.

Mandamus has been granted in cases concerning the finality of default judgments and the granting of new trials 

after the trial court lost jurisdiction. Houston Health 

Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 

(Tex. 1986); Schoenfeld v. Onion, 647 S.W.2d 954 (Tex. 

1983). 

Rosedale contends that the trial court abused its discretion in finding the default judgment interlocutory, 

dissolving the various collection orders, and granting a 

new trial because the trial court lost all jurisdiction, as a 

matter of law, thirty days after the date the default judgment was entered. Rosedale maintains that unless the 

orders barring its collection efforts are dissolved, it will 

be harmed because it may not be able to collect the

judgment against the real party's assets due to the large 

amount of other outstanding judgments [**6] against 

Mr. Lifshutz. 

In response to Rosedale's petition, the real party 

claims that Rosedale has failed to comply with the mandatory requirements of rule 121(a) (2) (C) and (F) of the 

Texas Rules of Appellate Procedure because its petition 

fails to be accompanied by a certified or sworn copy of 

the orders complained of and fails to include an affidavit 

verifying the truth of all factual allegations made in the 

petition. In reviewing Rosedale's petition, we find that 

the verification contained in the petition was signed only 

by the notary public and not by the relator or its representative. In oral argument, relator maintained that the 

verification was sufficient citing Republic Nat'l Leasing 

Corp. v. Schindler, 717 S.W.2d 606 (Tex. 1986), and 

Stocking v. Biery, 677 S.W.2d 792 (Tex. App.--San Antonio 1984, orig. proceeding). 

In Schindler, the supreme court stated that copies of 

documents attached to a properly prepared affidavit are 

sworn copies under rule 166A(e). However, in the instant 

case, we do not have a properly prepared affidavit before 

us. Moreover, in Stocking v. Biery, the court noted that a 

certified copy of the trial court's order was submitted in 

[**7] the mandamus but the other documents were uncertified. The court found that the uncertified documents 

did not meet the requirements and were not properly

before the court. In the instant case, we have been provided with copies of the various orders [*646] and 

exhibits along with a verification signed by a notary public. However, a verification signed only by a notary public and not by the relator does not meet the procedural 

requirements of rule 121 of the Texas Rules of Appellate 

Procedure. Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. 

App.--Houston [1st Dist. 1991, orig. proceeding [leave 

denied]). Consequently, we have not been furnished with 
Page 3 

869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, ** 

certified or sworn copies of the exhibits, and we do not 

have a proper verification of the factual assertions contained in the petition. Id. Ordinarily, the motion for leave 

to file would be overruled. However, because we have 

already granted relator's motion for leave to file its petition for writ of mandamus, we will address the merits of 

the petition in the interest of judicial economy because 

relator may correct these technical defects and refile its 

petition. Id.

II. DEFAULT JUDGMENT 

Rosedale claims that the default [**8] judgment 

entered is final despite the fact that Rosedale had asked 

for three categories of relief in its original petition but 

was granted only one category of relief in the judgment. 1

Rosedale asserts that by the omission of the other categories of relief requested, the trial court intended to grant 

only the relief awarded and to deny the other requested 

relief. In support of this theory, Rosedale refers to the 

language in the last sentence of the default judgment 

which states "for all of which let execution issue." 

Rosedale maintains that because execution is available 

only at the entry of a final judgment, the inclusion of that 

phrase indicates the judgment is final and conclusive on 

all matters before the court. Rosedale acknowledges that 

a final judgment must dispose of all parties and issues, 

but argues that the parties and issues may be disposed of 

by necessary implication. As further evidence that the 

judgment is final, Rosedale notes that the docket sheet 

shows an entry, contemporaneous with the entry of the 

default judgment, indicating "case closed." Rosedale 

argues that all these factors indicate the judgment is final. Additionally, during oral argument, Rosedale argued 

[**9] that the order is final because Rosedale had

abandoned Its claims for attorney's fees and prejudgment 

interest. 

1 The petition set out that the total sum due 

from the defendant on the date of conveyance to 

Rosedale totalled $ 7,047,841.20 and that in addition to that sum, accrued interest had accumulated on the past due amount. Rosedale sought recovery of this interest from the date of the conveyance until date of payment. In addition, 

Rosedale requested attorney's fees. However, the 

default judgment awarded $ 7,047,841.20 as the 

past due principal and interest at the time the suit 

was filed, plus interest on the unpaid sum at the 

rate of eighteen percent (18%) per annum from 

date of judgment until date of payment. 

 A final judgment is one that disposes of all parties 

and all issues involved in a lawsuit. Houston Health 

Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 

(Tex. 1986). The determination of the finality of a judgment may sometimes be ascertained based upon the intention of the trial court [**10] as gleaned from the 

language of the decree, the record as a whole, and the 

conduct of the parties. Highway Contractors, Inc. v. 

West Texas Equip. Co., Inc., 584 S.W.2d 382, 384 (Tex. 

Civ. App.--Amarillo 1979, no writ); see Harper v. 

Welchem, Inc., 799 S.W.2d 492, 495 (Tex. 

App.--Houston [14th Dist.] 1990, no writ) (determinative 

factor in interpreting judgment is intention of court). 

However, in determining whether the judgment is final, 

different presumptions apply depending upon whether

the judgment is made following a conventional trial on 

the merits or results from a default judgment or motion 

for summary judgment. Houston Health Clubs, 722 

S.W.2d 692. The judgment is presumed final following a 

conventional trial on the merits. North East Indep. 

School Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex.

1966). However, in the context of default or summary 

judgments, the Aldridge presumption does not apply. 

Houston Health Clubs, 722 S.W.2d at 693. Rosedale 

acknowledges the existence of the Aldridge presumption 

but argues that it cannot be interpreted to mean that there 

is a presumption against finality in default judgments. 

Rosedale claims there is [**11] simply no presumption, 

and we must look to the trial court's file for evidence of 

whether the judgment was intended to be final. 

A. "Case Closed" Notation 

As evidence of the intent to make the judgment final, Rosedale points to the [*647] notation on the 

court's docket indicating "case closed." The supreme 

court has stated that "a docket entry may supply facts in 

certain situations" but it may not prevail over or contradict a final judicial order. N-S-W Corp. v. Snell, 561 

S.W.2d 798, 799 (Tex. 1977). One court has interpreted 

the certain situations referred to in N-S-W as correcting 

clerical errors in judgments or determining the meaning 

of words used in a judgment. Energo Int'l Corp. v. 

Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 n.2

(Tex. App.--Dallas 1986, no writ). Otherwise, docket 

entries are considered to be a memorandum made for the 

convenience of the clerk and the trial court and not a part 

of the record to be considered. Roever v. Roever, 824 

S.W.2d 674, 676 (Tex. App.--Dallas 1992, no writ). From 

the limited record before us, we do not find that the case 

closed notation evidences intent by the trial court to 

make the default judgment [**12] final. 

B. "Let Execution Issue" 

Rosedale also contends that the phrase "for all of 

which let execution issue" evidences the trial court's intent to make the judgment final. We have found no authority, and relator did not provide us with any, indicating that the use of the execution issue phrase evidences 
Page 4 

869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, ** 

the intent to make the judgment final. 2 Moreover, judgments containing directives that execution issue have 

been found to be interlocutory. See Macarangal v. Andrews, 838 S.W.2d 632, 634 (Tex. App.--Dallas 1992, 

orig. proceeding [leave denied]) (order listing entity as a 

party, dismissing the cause, and providing for execution 

did not show intent of trial court to dispose of all parties 

and claims); McClennahan v. First Gibraltar Bank, 791 

S.W.2d 607, 608-09 (Tex. App.--Dallas 1990, no writ) 

(judgment contained let execution issue phrase but court 

found summary judgment interlocutory for failure to

dispose of counterclaim). 

2 However, had the default judgment included 

language purporting to dispose of all claims 

and/or parties (Mother Hubbard language), it 

would have clearly evidenced the trial court's intent to dispose of all claims. Mafrige v. Ross, 

866 S.W.2d 590, 37 Tex. Sup. Ct. J. 82, 84 (Oct. 

27, 1993). 

 [**13] C. Disposition of Issues by Necessary Implication 

Rosedale asserts that in addition to evidencing the

intent to make the judgment final, the let execution issue 

phrase indicates that the claims for attorney's fees and 

prejudgment interest were disposed of by necessary implication. We disagree. Although it is well-settled that it 

is not "essential that the judgment in express terms specifically dispose of each issue" in order to be final, it is 

essential that the inference that the judgment does dispose of a particular issue follows as a necessary implication. Davis v. McCray Refrigerator Sales Corp., 136 Tex. 

296, 150 S.W.2d 377, 378 (1941); see Matelski v. 

Matelski, 840 S.W.2d 124, 126-27 (Tex. App.--Fort 

Worth 1992, no writ) (by enforcing partition agreement, 

court necessarily denied claim that party was under duress when signing agreement); Chem-Gas Engineers, 

Inc. v. Texas Asphalt & Refining Co., 395 S.W.2d 690, 

691 (Tex. Civ. App.--Waco 1965, writ ref'd n.r.e.)(when 

plaintiff's action seeking adjudication of priority and 

foreclosure of lien dismissed, no right, equities, or issues 

left for adjudication between the parties; judgment disposed of plaintiff's [**14] claim for debt which could 

only be established via a lien by necessary implication). 

In the instant case, the court awarded the alleged amount 

of the note and post judgment interest. No mention was 

made as to the prejudgment interest or the attorney's fees 

as requested in the petition nor did the award of the note 

amount plus interest preclude the award of prejudgment 

interest or attorney's fees. Therefore, we do not find that 

these claims were disposed of by necessary implication. 

D. Final Judgment Disposes of All Parties and Issues 

In order for a judgment to be final, it must dispose of 

all parties and all issues involved in the lawsuit. Houston Health Clubs v. First Court of Appeals, 722 S.W.2d 

692, 693 (Tex. 1986). Relator contends that all issues 

were disposed of because it abandoned its claims for 

prejudgment interest and attorney's fees. Although we 

note that one court has allowed a party to [*648] 

abandon or waive a request for punitive damages and

impart the requisite finality to a judgment without informing the trial court of the decision to do so, in that 

case the court held it was not necessary to notify the trial 

court in order to show that the jurisdiction [**15] of the 

appellate court had been successfully invoked. Jones v. 

Griege, 803 S.W.2d 486, 487-88 (Tex. App.--Dallas 

1991, no writ). 

In Griege, the court concluded that Griege's notice 

to the appellate court of his decision to waive the request 

for punitive damages established that the judgment was 

now final and the appellate court had jurisdiction over 

the appeal. Id. at 489. However, in the instant case, it is 

crucial for us to know when Rosedale decided to abandon or waive its remaining requests in order to determine 

when the trial court's plenary power expired. In the record before us, we do not have any evidence of an 

amended petition deleting the claims for prejudgment 

interest and attorney's fees, an affidavit explaining when 

the claim was abandoned, or any other evidence indicating Rosedale's intent to abandon the remaining claims 

prior to the filing of the motion for new trial. 3 Therefore, 

we do not know if Rosedale abandoned its claims at the 

time the default judgment was signed, at the time the 

motion for new trial was filed, or during oral argument 

when the abandonment argument was first presented. 

Because we are unable to ascertain the finality of the 

judgment [**16] based on the abandonment of issues

argument, we must review the judgment on its face to 

determine its finality. 

The default judgment in this case provides the following: 

 

 It is therefore ORDERED, ADJUDGED and DECREED that Judgment 

is entered in favor of the Plaintiff 

Rosedale Partners, Ltd. against the Defendant Bernard Lifshutz in the amount of 

$ 7,047,841.20, the past due principal and 

interest at the time of filing of this suit, 

plus interest on this unpaid sum at the rate 

of eighteen percent (18%) per annum 

from date of Judgment until date of payment, for all of which let execution issue. 

 
Page 5 

869 S.W.2d 643, *; 1994 Tex. App. LEXIS 344, ** 

However, in reviewing plaintiff's original petition, we 

find that the following requests were made: 

 In addition to this sum [the $ 

7,047,841.20], accrued interest as allowed 

by law is also accumulating on the past 

due sum shown above, and recovery of 

this interest from the date of such conveyance until date of payment is also 

sought by this suit. . . . Pursuant to the 

terms of the Notes themselves, the Plaintiff is entitled to recover a sum equal to 

fifteen percent (15%) additional on the 

amount of principal and interest owing, as 

attorneys' fees, and for the recovery 

[**17] of this additional sum claim is 

also made. 

 

In Houston Health Clubs, the court found that a default 

judgment was interlocutory because it not dispose of the 

punitive damage issue. Id. In that case, a default judgment was granted to the landlord for all the relief sought 

except for punitive damages. The punitive damage issue 

was not mentioned either expressly or by implication. 

The court held that because the default judgment remained interlocutory, the trial court retained jurisdiction 

to set it aside and grant a new trial. Id. 722 S.W.2d at 

694; see H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 

678, 680 (Tex. App.--Corpus Christi 1991, writ denied) 

(where three possible authorities existed under which 

prejudgment interest could be awarded, failure to recite 

specific interest rate in default judgment case rendered 

judgment interlocutory). Moreover, in Hunt Oil Co. v. 

Moore, 639 S.W.2d 459, 460 (Tex. 1982), a judgment, 

which did not mention the claim for prejudgment interest, was considered Interlocutory until the court entered 

another judgment which tracked the language of the first 

judgment and added language which denied all other 

relief not expressly [**18] granted. The court found 

that the interlocutory judgment not only failed to address 

the claim for prejudgment interest but also ordered an 

accounting to be filed at a subsequent time. Id. at 460; 

see New York Underwriters Ins. Co. v. Sanchez, 799 

S.W.2d 677, 678 (Tex. 1990) (judgment which did not 

mention or [*649] dispose of counterclaim for attorney's fees interlocutory). 

3 Both parties agreed during oral argument 

that no hearing was held at the time the default 

judgment was signed. Relator acknowledged that 

the default judgment was mailed to the judge in 

order to obtain her signature. 

 In the instant case, the trial court did not dispose of 

all the issues before it. Rosedale prayed not only for the 

amount of the note but also requested prejudgment interest and attorney's fees. Therefore, we hold that the default judgment entered was interlocutory, and the trial 

court retained jurisdiction to grant the new trial and dissolve its previous orders. Accordingly, the petition for 

writ of mandamus [**19] is denied. 

ORLANDO GARCIA, 

Justice 
Page 1 

1 of 1 DOCUMENT 

SHEIK TEHUTI, Appellant v. BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP, MARY DAFFIN, ROBERT FRAPPIER, STEVE TURNER, BRIAN 

ENGEL, AND CHALISE ESTES, Appellees 

No. 05-11-00449-CV 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS 

2011 Tex. App. LEXIS 7375

September 9, 2011, Opinion Issued 

SUBSEQUENT HISTORY: Released for Publication October 21, 2011. 

PRIOR HISTORY: [*1] 

 On Appeal from the 193rd Judicial District Court, 

Dallas County, Texas. Trial Court Cause No. 

DC-10-15953. 

COUNSEL: For APPELLANT: Sheik Tehuti, Fort 

Worth, TX. 

For APPELLEE: Steven A. Leyh, LEYH & PAYNE, 

L.L.P., Houston, TX. 

JUDGES: Before Justices FitzGerald, Francis, and 

Lang-Miers. Opinion By Justice FitzGerald. 

OPINION BY: KERRY P. FITZGERALD 

OPINION 

MEMORANDUM OPINION 

Opinion By Justice FitzGerald 

Sheik Tehuti appealed the trial court's March 30, 

2011 default judgment in favor of appellees. The judgment on its face appeared to be interlocutory in that it did 

not dispose of appellees' claim for prejudgment interest, 

nor did it contain language indicating it was disposing of 

all claims and parties and was intended to be final. See 

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 

2001). Therefore, by letter dated June 27, 2011, the 

Court directed the parties to file letter briefs addressing 

our jurisdiction over the appeal. 

Appellant responded with a brief that appears to address the merits of the default judgment rather than the 

jurisdictional issue. The only reference that might be 

construed as directed to the jurisdictional question is 

appellant's statement that the "district court had ruled on 

a core issue important to the appeal." This, however, 

does not explain why the judgment is not interlocutory. 

Appellees responded that [*2] the March 30, 2011 

judgment is interlocutory and we do not have jurisdiction 

over the appeal. We agree with appellees. 

Appellate jurisdiction is never presumed. Brashear 

v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d

542, 546 (Tex. App.--Dallas 2009, no pet.) (op. on reh'g). 

Unless the record affirmatively shows the propriety of 

appellate jurisdiction, we must dismiss the appeal. See id. 

Subject to a few exceptions not applicable here, we have 

jurisdiction only over appeals from final judgments--judgments that dispose of all pending parties and 

claims. See Lehmann, 39 S.W.3d at 195; Beckham Grp., 

P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.--Dallas 

2010, no pet.). 

In this case, the trial court's March 30, 2011 judgment neither affirmatively disposes of appellees' claim 

for prejudgment interest nor contains language indicating 

that all claims and parties have been disposed of and the 

judgment is intended to be final. See Lehmann, 39 

S.W.3d at 200. Therefore, the judgment is not final. Absent a final judgment, we have no jurisdiction over the 

appeal. See id. at 195. 
Page 2 

2011 Tex. App. LEXIS 7375, * 

We dismiss the appeal for want of jurisdiction. 

KERRY P. FITZGERALD 

JUSTICE 
| | Positive

As of: April 7, 2015 6:01 PM EDT

Sherman Acquisition II LP v. Garcia

Court of Appeals of Texas, Tenth District, Waco

June 20, 2007, Opinion Delivered; June 20, 2007, Opinion Filed

No. 10-06-00013-CV

Reporter

229 S.W.3d 802; 2007 Tex. App. LEXIS 4793

SHERMAN ACQUISITION II LP, Appellant v. TONIE

GARCIA, Appellee

Prior History: [**1] From the County Court at Law No.

1. McLennan County, Texas. Trial Court No.

20050487CV1.

Disposition: Reversed and rendered.

Core Terms

trial court, default judgment, damages, sworn, request

for admission, liquidated, attorney's fees, unliquidated

damages, merits, pet, no writ, allegations, admissions,

original petition, conclusively, unidentified, deemed

admitted, judicial notice, unliquidated, hearsay, card,

hear, take nothing judgment, entitled to judgment,

amount of damages, judgment rendered, court of

appeals, fact finding, contents

Case Summary

Procedural Posture

Appellant creditor challenged a take-nothing judgment

entered by the County Court at Law No. 1, McLennan

County, Texas, after a trial on the merits before the court

in the creditor's action against appellee debtor on a

sworn account and for quantum meruit to recover an

unpaid credit card debt. The debtor had not filed an

answer or otherwise made an appearance. Although

the creditor requested a default judgment, the trial court

did not grant it.

Overview

The debtor did not appear at the trial on the merits. The

creditor presented no live testimonial evidence of its

damages but had an attorney fee affidavit and an

affidavit purporting to address the merits of its claim.

The court held that the creditor was not entitled to a

judgment for a suit on sworn account. The case involved

the extension of credit. Some credit extensions were to

fund the purchase of goods or services at the point of

purchase; others were alleged to have been cash

advances. The creditor had not properly pleaded a

claim upon which a suit on a sworn account for those

types of transactions could be based. The trial court

erred in not granting a default judgment under Tex. R.

Civ. P. 239 on liability, but not on damages. While the

creditor did not bring itself within the rule regarding a

suit on a sworn account, its allegations were sufficient

to allege a traditional suit for breach of contract.Although

the court disagreed with the creditor's conclusion that

the damages were liquidated, sufficient evidence of

damages was presented to prove its damages pursuant

to Tex. R. Civ. P. 243. Accordingly, the trial court erred in

not rendering judgment for the creditor.

Outcome

The court reversed the trial court's judgment and

rendered judgment for the creditor.

LexisNexis® Headnotes

Contracts Law > Breach > Breach of Contract Actions >

General Overview

Contracts Law > ... > Sales of Goods > Title, Creditors &

Good Faith Purchasers > Passing of Titles

HN1 A suit on a sworn account must be based upon a

transaction involving a sale on one side and a purchase

on the other whereby title to personal property passes

from one to another.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > Appeals > Appellate Jurisdiction >

Interlocutory Orders
HN2 Ordinarily, the denial of a default judgment is an

interlocutory order not subject to appeal. This is the

natural result of the denial of a motion that does not

result in a judgment because the refusal to rule on, or

the denial of, a dispositive motion, does not normally

result in a ruling or other final judgment about which

complaint can be made. Usually, after the denial, or

refusal to rule, the proceedings progress and are

ultimately resolved and the denial or refusal to rule on

the motion becomes moot because other events in the

proceeding have resulted in a judgment.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > Appeals > Standards of Review > Abuse

of Discretion

HN3 Review of the denial of a motion for default

judgment is under the abuse of discretion standard.

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

HN4 A plaintiff is generally entitled to a default judgment

against a defendant who fails to file an answer within

the time allowed and fails to appear when the trial court

calls the case for trial. Tex. R. Civ. P. 239. A defendant

who neither answers nor appears has "admitted" the

facts properly pled and the justice of the opponent's

claim.

Contracts Law > Breach > Breach of Contract Actions >

General Overview

HN5 A suit on a sworn account is a special type of suit

on a contract.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

HN6 A default judgment on liability does not address the

merits of the allegations regarding unliquidated

damages.

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

Contracts Law > ... > Damages > Types of Damages >

Liquidated Damages

Evidence > Types of Evidence > Judicial Admissions >

Effects

HN7 Once a default judgment is taken against a

non-answering defendant on an unliquidated claim, all

allegations of fact set forth in the petition are deemed

admitted, except for the amount of damages. If the

claim is liquidated and proved by an instrument in

writing, the damages shall be assessed by the court, or

under its direction, unless the defendant demands and

is entitled to a trial by jury. Tex. R. Civ. P. 241. A claim is

liquidated if the amount of damages caused by the

defendant can be accurately calculated from (1) the

factual, as opposed to conclusory, allegations in the

petition, and (2) an instrument in writing. Whether a

claim is liquidated must be determined from the

language of the petition, as a seemingly liquidated

claim may be unliquidated because of pleading

allegations which require proof for resolution. If the

damages being claimed are unliquidated, the court

rendering a default judgment must hear evidence as to

damages. Tex. R. Civ. P. 243. Rule 243 does not

prescribe either the manner in which the hearing is to be

conducted or the character of evidence which is

required. Tex. R. Civ. P. 243. However, it is error for the

trial court to fail to conduct a hearing and to require

proof of unliquidated damages before rendering default

judgment for such damages.

Contracts Law > ... > Damages > Types of Damages >

Liquidated Damages

HN8 Examples of unliquidated damages are personal

injury damages, claims based on repair estimates, and

the determination of property value absent written

instruments verifying the value. A claim is liquidated if

the amount of damages may be accurately calculated

by the trial court from the factual, as opposed to the

conclusory, allegations in a plaintiff's petition and the

instrument in writing.

Contracts Law > ... > Damages > Types of Damages >

Liquidated Damages

HN9 When a claim is for unliquidated damages, a court

shall hear evidence as to damages and shall render

judgment therefor. Tex. R. Civ. P. 243. For an

unliquidated claim, testimony of the total amount due is

sufficient to support an award of damages, and the

testimony may be supplied by affidavits.

Contracts Law > ... > Damages > Types of Damages >

Liquidated Damages

HN10 See Tex. R. Civ. P. 243.

Contracts Law > ... > Damages > Types of Damages >

Liquidated Damages

229 S.W.3d 802, *802; 2007 Tex. App. LEXIS 4793, **1

Page 2 of 10
Evidence > ... > Statements as Evidence > Hearsay >

General Overview

HN11 Tex. R. Evid. 802 states that inadmissible hearsay

admitted without objection shall not be denied probative

value merely because it is hearsay. Nothing in Rule 802

limits its application to contested hearings. The rule is

not ambiguous and requires no explication. Because

unobjected to hearsay constitutes probative evidence,

it satisfies the requirement of Tex. R. Civ. P. 243 that

there be evidence of unliquidated damages.

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

Contracts Law > ... > Damages > Types of Damages >

Liquidated Damages

Evidence > ... > Statements as Evidence > Hearsay >

General Overview

HN12 A trial court may rely on affidavits in proving

unliquidated damages in default judgments; in fact, it is

error to not consider the affidavits. Tex. R. Evid. 802, the

hearsay rule, will not prevent use of evidence in the

form of affidavits. Affidavits are probative evidence of

unliquidated damages. Testimony of the total amount

due under a written instrument is legally sufficient to

support an award of that amount in a default judgment

proceeding. But not just any affidavit will do. An affidavit

which does not positively and unqualifiedly represent

the facts as disclosed in the affidavit to be true and

within the affiant's personal knowledge is legally

insufficient.

Evidence > Types of Evidence > Judicial Admissions >

Effects

HN13 Admissions, once deemed admitted, are judicial

admissions and a party may not then introduce

controverting testimony in the legal proceeding related

thereto. Deemed admissions may be employed as

proof; and once admissions are deemed admitted by

operation of law and where said admissions fully support

each element of a cause of action, including damages,

they will fully support a judgment based thereon. This is

because unanswered requests for admissions are

deemed admitted without the necessity of a court order

and any matter thus admitted is conclusively established

as being true. Tex. R. Civ. P. 198.2(c), 198.3. Thus, the

facts admitted may not be contradicted by evidence at

the trial.

Counsel: ForAPPELLANT/RELATOR: Jeffrey J. Chen,

HULL & ASSOCIATES, PC, Houston, TX.

For APPELLEE/RESPONDENT: Tonie Garcia, Pro se,

Waco, TX.

Judges: Before Chief Justice Gray, Justice Vance, and

Justice Reyna.

Opinion by: TOM GRAY

Opinion

[*804] OVERVIEW

This appeal is from a take nothing judgment after a trial

on the merits before the court. Sherman Acquisition II

LP sued Tonie Garcia in county court on a sworn account

and for quantum meruit 1

to [*805] recover an unpaid

credit card debt. Garcia did not file an answer or

otherwise make an appearance. Sherman requested a

default judgment. The trial court did not grant default

judgment to Sherman, but rather set the case for a trial

on the merits. Garcia did not appear at the trial on the

merits. Upon Sherman's request, the trial court took

judicial notice of the contents of its file. Sherman

presented no live testimonial evidence of its damages

but included in the court's file was an attorneys fee

affidavit and an affidavit purporting to address the merits

of its claim. The trial court rendered a take nothing

judgment. This appeal followed.

Sherman vigorously asserts that its case is a suit on a

sworn account and that it was entitled to judgment by

the rules applicable to suits on sworn account, or

alternatively by the rules applicable to default

judgments, or finally by the evidence at the trial on the

merits on both liability and damages. After a discussion

of the background of this appeal, we first address the

issue of whether Sherman was entitled to a judgment

for a suit on sworn account. Because we determine that

it is not, we then move to the question of whether

Sherman was entitled to a default judgment, and

whether it was error for the trial court to deny or refuse

1

The existence of a contract, as more fully explained below, bars recovery under quantum meruit. Murray v. Crest Const.,

Inc., 900 S.W.2d 342, 345 (Tex. 1995); Pepi Corp. v. Galliford, No. 01-05-00788-CV 2007 Tex. App. LEXIS 1018, *10 (Tex.

App.-Houston [1st Dist.] Feb. 8, 2007, no pet.). [**2] Accordingly, quantum meruit will not be further discussed herein.

229 S.W.3d 802, *802; 2007 Tex. App. LEXIS 4793, **1

Page 3 of 10
to grant default judgment, on both, or either, liability and

damages. Because we determine that the trial court

erred in not granting a default judgment on liability, but

not on damages, we then must proceed to determine

whether the trial court erred by rendering a take nothing

judgment after a trial on the merits against Sherman.

Because we determine that Sherman conclusively

proved its damages, we ultimately conclude that the

trial court erred in not rendering judgment for Sherman

and, [**3] therefore, we reverse the trial court's judgment

and render judgment for Sherman.

BACKGROUND

Garcia ran up a debt on his Metris credit card account.

He failed to pay. Sherman acquired the debt from Metris

and then sued Garcia to collect the debt. In addition to

the petition, Sherman included a Request for

Disclosures and Request for Admissions in the petition.

Garcia did not file an answer or make an appearance.

Not surprisingly, Garcia, in addition to not answering the

claims in the petition, also did not answer the Requests

for Admissions. Service of the petition and the Request

for Admissions was reflected on the return of service.

Sherman filed a motion for default judgment on July 18,

2005. Rather than a ruling on the motion for default

judgment, on July 18, 2005 the case was set for trial on

November 4, 2005.

The trial on the merits was held on November 4, 2005.

No jury trial having been requested, the case was tried

to the court. At the trial before the court, Sherman did

not specifically object to the trial court's failure or refusal

to rule on any motion but Sherman did draw the trial

court's attention to its entitlement to judgment based on

the contents of the court's file. Sherman [**4] specifically

asked the court to take judicial notice of the court's file

and requested a judgment in its favor.

The trial court took judicial notice of the contents of the

court's file, which contained the petition, affidavits

regarding the claim and attorneys fees, and Request for

Admissions to which no response had been filed.

A take nothing judgment was rendered on November 4,

2005.

[*806] Sherman requested findings of fact and

conclusions of law.

Findings of fact and conclusions of law were filed.

Notice of Appeal was filed.

TRIAL ON THE MERITS

The reporter's record on this entire trial on the merits is

as follows:

PROCEEDINGS

NOVEMBER 4, 2005

THE COURT: Okay. This is 20050487CV1. Mr.

Fisher?

MR. FISHER: Thank you, Your Honor. For the

record, my name is John B. Fisher, III, and I am

an attorney. I practice law in Waco, McLennan

County, Texas. Hull & Associates, the attorneys

for the Plaintiffs in this lawsuit, have asked me

to appear today solely for the purpose of moving

for a judgment, and I have some brief evidence

I would like to present to the Court.

THE COURT: All right.

MR. FISHER: I would like to request the Court

to take judicial notice of the case file that the

Court presently has in his [**5] possession.

THE COURT: All right.

MR. FISHER: I would, second, like to be sworn

in.

(Witness duly sworn)

THE COURT: All right. Proceed.

JOHN B. FISHER, III

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. FISHER:

I will testify as follows: That I am John B. Fisher,

III, and that I am an attorney and I practice law

in Waco, McLennan County, Texas, and the

following testimony is not of personal

knowledge. It is based strictly on information

and belief.

And that testimony would be that it is my

understanding that the Defendant incurred a

credit card debt to a company called Metris,

and that that debt was subsequently bought by

the Plaintiff herein, Sherman Acquisition. And it

is my understanding, based on information and

229 S.W.3d 802, *805; 2007 Tex. App. LEXIS 4793, **2

Page 4 of 10
belief, that that debt is a legitimate debt that is

unpaid and that the Plaintiff is entitled to recover

the money that they have sued for.

Also, I would like to testify, based on information

and belief, that included in the Plaintiff's Original

Petition are Requests for Admissions that have

not been responded to as of this date, in any

manner.

And that's all the testimony I have, Your Honor.

THE COURT: Anything else, Mr. Fisher?

MR. FISHER: Did the Court [**6] want to hear

any type of argument?

THE COURT: I will hear anything you want to

present, Mr. Fisher.

MR. FISHER: Thank you, Your Honor.

FINAL ARGUMENT

MR. FISHER: I would like to say to the Court

that I believe that Rule 241 of the Texas Rules

of Civil Procedure is applicable in this situation

because we have a liquidated amount that is

proven by an instrument in writing, and I believe

that the pleadings are sufficient to give the

Defendant notice of what they were sued for

and why they were sued, [*807] and I think the

Requests forAdmissions certainly bolster those

other reasons, and therefore, believe that when

the Defendant hasn't appeared and in any way

contested the charges, which constitutes a type

of tacit admission, that it's a legitimate claim,

that the Plaintiff is entitled to the judgment

requested.

Thank you, Your Honor.

THE COURT: Mr. Fisher, I am going to deny the

relief prayed for and order that the Plaintiff take

nothing for this suit. Anything further?

MR. FISHER: No, Your Honor.

THE APPEAL

Sherman brings three issues. The issues are as follows:

1. The trial court erred in ordering that the Plaintiff take

nothing by way of its suit.

2. The trial court erred in not granting the Plaintiff's

[**7] Default Judgment; and

3. The trial [court] improperly set the matter for trial.

All three issues are somewhat interrelated, and will be

discussed as necessary, as described above.

SWORN ACCOUNT

If Sherman properly pleaded a suit on a sworn account,

it is entitled to judgment, not so much because of the

default of Garcia, but because Garcia did not file a

sworn denial of the account. See TEX. R. CIV. P. 185.

But as the trial court properly noted, HN1 a suit on a

sworn account must be based upon a transaction

involving "a sale on one side and a purchase on the

other whereby title to personal property passes from

one to another." Tully v. Citibank (S.D.), N.A., 173

S.W.3d 212, 216 (Tex. App.-Texarkana 2005, no pet.).

This case involves the extension of credit. Some credit

extensions were to fund the purchase of goods or

services at the point of purchase; others are alleged to

have been cash advances. Sherman has not properly

pleaded a claim upon which a suit on a sworn account

for these types of transactions can be based.

DEFAULT JUDGMENT

HN2 Ordinarily, the denial of a default judgment is an

interlocutory order not subject to appeal. Aguilar v.

Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston

[14th Dist.] 2005, no pet.). [**8] This is the natural result

of the denial of a motion that does not result in a

judgment because the refusal to rule on, or the denial

of, a dispositive motion, does not normally result in a

ruling or other final judgment about which complaint can

be made. Usually, after the denial, or refusal to rule, the

proceedings progress and are ultimately resolved and

the denial or refusal to rule on the motion becomes

moot because other events in the proceeding have

resulted in a judgment.

We have previously reviewed the denial of a motion for

default judgment which was filed and ultimately denied

after an answer was filed. Aguilar v. Alvarado, 39 S.W.3d

244, 248 (Tex. App.-Waco 1999, pet. denied) ("Rather,

Aguilar's first request for a default judgment occurred in

his motion, filed afterAlvarado filed his answer, in which

he asked the trial court to strike Alvarado's answer and

enter a default judgment."). And at least one other

appellate court, citing our Aguilar case, has considered

the denial of a default judgment when, as here, the

denial is challenged in an appeal from a final judgment

or order. Aguilar v. Livingston, 154 S.W.3d 832, 833

229 S.W.3d 802, *806; 2007 Tex. App. LEXIS 4793, **5

Page 5 of 10
(Tex. App.-Houston [14th Dist.] 2005, no pet.). [**9] HN3

Review of the denial of a motion for default judgment is

under the abuse of discretion standard. Id.

[*808] Initially we must determine whether the trial

court's failure or refusal to grant a default judgment was

properly preserved. In Aguilar v. Alvarado, the motion

was made and specifically denied after the answer had

been filed. Thus, as with any issue that needs to be

preserved, Aguilar had pursued the objection to an

adverse ruling. See TEX. R. APP. P. 33.1. The appellant,

Aguilar, was arguing that the trial court, notwithstanding

that an answer had been filed, should have granted the

motion for default judgment.

In the present case, however, there is some question

whether proceeding to trial without an express ruling on

the motion would be a waiver of the motion by Sherman.

Alternatively, it could be argued, that setting the case for

trial rather than granting default judgment was an implied

denial of the motion by the trial court. TEX. R. APP. P.

33.1(a)(2)(A). Or finally, a third alternative argument is

whether preservation would require that the movant

object to the trial court's failure or refusal to rule on the

motion. TEX. R. APP. P. 33.1(a)(2)(B).

At the trial on the merits, in [**10] Sherman's opening

statement, consisting of one paragraph, Sherman

advised the court that it was there to move for judgment.

And in its closing argument, also of only one paragraph,

Sherman specifically argued that it was entitled to

judgment under Rule 241 of the Texas Rules of Civil

Procedure (default judgment on liquidated damages).

Immediately thereafter, the trial court rendered a take

nothing judgment against Sherman. Because it is clear

that Sherman did not waive its claimed right to a default

judgment and continued to press the court for a default

judgment based upon the contents of the court's file,

and further because it is clear that the trial court

understood Sherman's request, we conclude that the

issue of whether the trial court erred in failing to render

a default judgment was adequately preserved. TEX. R.

APP. P. 33.1.

LIABILITY AND DAMAGES

We now address the question of whether the trial court

erred in not rendering a default judgment in favor of

Sherman on either, or both, liability and damages. HN4

A plaintiff is generally entitled to a default judgment

against a defendant who fails to file an answer within

the time allowed and fails to appear when the trial court

calls [**11] the case for trial. TEX. R. CIV. P. 239. A

defendant who neither answers nor appears has

"'admitted' the facts properly pled and the justice of the

opponent's claim." Stoner v. Thompson, 578 S.W.2d

679, 682 (Tex. 1979).

Just because we have determined that this was not a

suit on a sworn account, we cannot disregard the

remaining allegations if they support a claim for breach

of contract. HN5 A suit on a sworn account is a special

type of suit on a contract. We hold that while Sherman

did not bring itself within the rule regarding a suit on a

sworn account, its allegations are sufficient to allege a

traditional suit for breach of contract. After reviewing the

original petition, we find that it contained a sufficient

allegation of breach of contract, and the trial court

should have entered default judgment for Garcia's

liability on the claim upon that basis. The trial court

abused its discretion in failing to enter the default

judgment. But this is only as to liability. HN6 A default

judgment on liability does not address the merits of the

allegations regarding unliquidated damages. Transp.

Concepts, Inc. v. Reeves, 748 S.W.2d 302, 304 (Tex.

App.-Dallas 1988, no writ).

LIQUIDATED DAMAGES VS. UNLIQUIDATED

[**12] DAMAGES

The general topic of default judgments and the critical

distinction between [*809] liquidated and unliquidated

damages is addressed in an excellent opinion by Justice

Johnson, now on the Texas Supreme Court, when he

was a justice on the Seventh Court of Appeals in

Amarillo. Arenivar v. Providian Nat'l Bank, 23 S.W.3d

496, 497-498 (Tex. App.-Amarillo 2000, no pet.). As

Justice Johnson explained,

HN7 Once a default judgment is taken against

a non-answering defendant on an unliquidated

claim, all allegations of fact set forth in the

petition are deemed admitted, except for the

amount of damages. Texas Commerce Bank,

Nat. Ass'n v. New, 3 S.W.3d 515, 516 (Tex.

1999). If the claim is liquidated and proved by

an instrument in writing, the damages shall be

assessed by the court, or under its direction,

unless the defendant demands and is entitled

to a trial by jury. TEX. R. CIV. P. 241. A claim is

liquidated if the amount of damages caused by

the defendant can be accurately calculated from

(1) the factual, as opposed to conclusory,

allegations in the petition, and (2) an instrument

229 S.W.3d 802, *807; 2007 Tex. App. LEXIS 4793, **8

Page 6 of 10
in writing. Pentes Design, Inc. v. Perez, 840

S.W.2d 75, 79 (Tex. App.-Corpus Christi 1992,

writ denied). Whether [**13] a claim is liquidated

must be determined from the language of the

petition, as a seemingly liquidated claim may

be unliquidated because of pleading allegations

which require proof for resolution. See Irlbeck

v. John Deere Co., 714 S.W.2d 54, 57 (Tex.

App.-Amarillo 1986, writ ref'd n.r.e.).

If the damages being claimed are unliquidated,

the court rendering a default judgment must

hear evidence as to damages. Rule 243; Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,

83 (Tex. 1992). Rule 243 does not prescribe

either the manner in which the hearing is to be

conducted or the character of evidence which

is required. Rule 243; see New, 3 S.W.3d at

516-17 (affidavits are sufficient evidence to

support unliquidated damages award).

However, it is error for the trial court to fail to

conduct a hearing and to require proof of

unliquidated damages before rendering default

judgment for such damages. See Jones v.

Andrews, 873 S.W.2d 102, 107 (Tex.

App.-Dallas 1994, no writ).

Arenivar v. Providian Nat'l Bank, 23 S.W.3d 496,

497-498 (Tex. App.-Amarillo 2000, no pet.).

HN8 Examples of unliquidated damages are personal

injury damages, claims based on repair estimates, and

the determination of property [**14] value absent written

instruments verifying the value. See Jones v. Andrews,

873 S.W.2d 102, 107 (Tex. App.-Dallas 1994, no writ)

(damages for personal injuries are unliquidated);

Alvarado v. Reif, 783 S.W.2d 303, 305 (Tex.

App.-Eastland 1989, no writ) (claim for damages based

on repair estimate is not a liquidated damage); Willacy

County Appraisal Review Bd. v. South Padre Land Co.,

767 S.W.2d 201, 204 (Tex. App.-Corpus Christi 1989,

no writ) (determination of property value is not liquidated

demand where only evidence of property value was the

conclusory allegation of value in plaintiff's unsworn

petition).

A claim is liquidated if the amount of damages may be

accurately calculated by the trial court from the factual,

as opposed to the conclusory, allegations in plaintiff's

petition and the instrument in writing. Novosad v.

Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston

[14th Dist.] 2001, no pet.) (suit to recover amount due

for professional services was a liquidated claim proven

by written instruments); Mantis v. Resz, 5 S.W.3d 388,

392 (Tex. App.-Fort Worth 1999, pet. denied), overruled

on other grounds, Sheldon v. Emergency Medicine

Consultants, 43 S.W.3d 701, 702-03 (Tex. App.-Fort

Worth [*810] 2001, no pet.) [**15] (in a suit on a sworn

account, the petition with an attached sworn account

and verified affidavit of the sworn account was a

liquidated claim proved by written instruments);

Sheshunoff & Co. v. Scholl, 560 S.W.2d 113, 115 (Tex.

Civ. App.-Houston [1st Dist.] 1977), rev'd on other

grounds, 564 S.W.2d 697 (Tex. 1978) (no further proof

was required in suit to recover damages for breach of

employment contract because the claim for damages

was liquidated and proved by the employment contract

attached to the petition). We disagree with Sherman's

conclusion that the damages here are liquidated. As

explained below, we agree, however, that sufficient

evidence of damages was presented to prove

Sherman's damages.

UNLIQUIDATED DAMAGES

Having found that Sherman was entitled to a default

judgment based on the petition's allegations regarding

liability and the defendant's failure to answer, our

decision leaves Sherman with the need to prove its

unliquidated damages. Sherman alleges it proved

damages via an affidavit or, alternatively, deemed

admissions.

At the trial, Sherman submitted damages evidence in

the form of request for admissions that were deemed

admitted and affidavits. We will address those [**16] in

reverse order.

AFFIDAVIT

HN9 When a claim is for unliquidated damages, "the

court shall hear evidence as to damages and shall

render judgment therefor ..." TEX.R. CIV. P. 243; Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.

1992). For an unliquidated claim, testimony of the total

amount due is sufficient to support an award of

damages, and the testimony may be supplied by

affidavits. Texas Commerce Bank v. New, 3 S.W.3d

515, 517 (Tex. 1999); Barganier v. Saddlebrook

Apartments, 104 S.W.3d 171, 173 (Tex. App.-Waco

2003, no pet.); Irlbeck v. John Deere Co., 714 S.W.2d

54, 57 (Tex. App.-Amarillo 1986, no writ).

In the past, the first issue has been whether affidavits

constitute evidence as required by Rule 243. That rule

provides:

229 S.W.3d 802, *809; 2007 Tex. App. LEXIS 4793, **12

Page 7 of 10
HN10 If the cause of action is unliquidated or

be not proved by an instrument in writing, the

court shall hear evidence as to damages and

shall render judgment therefor, unless the

defendant shall demand and be entitled to a

trial by jury in which case the judgment by

default shall be noted, a writ of inquiry awarded,

and the cause entered on the jury docket.

TEX. R. CIV. P. 243.

Although several courts of appeals had held that

affidavits constitute evidence [**17] of unliquidated

damages, at least one court of appeals held that they

did not. New v. Texas Commerce Bank, 971 S.W.2d

711, 714 (Tex. App.-Austin 1998), rev'd in part, 3 S.W.3d

515 (Tex. 1999). To reject the affidavit the court of

appeals had concluded that Rule 802 of the Texas

Rules of Evidence, the hearsay rule, prevents the use of

affidavits "because the application of Rule 802

anticipates opposing counsel's and/or an opposing

party's presence at the hearing to object to such

inadmissible hearsay." Id. The lower court in New further

concluded, therefore, that a trial court does not hold "an

evidentiary hearing merely by accepting the affidavits

attached to [the] motion." Id.

The Texas Supreme Court held that the court of appeals

was incorrect, holding

HN11 Rule 802 says, "Inadmissible hearsay

admitted without objection shall not be denied

probative value merely because it is hearsay."

Nothing in Rule 802 limits its application to

contested hearings. The rule is not ambiguous

and requires no explication. Consequently we

will [*811] give it none. Because unobjected to

hearsay constitutes probative evidence, it

satisfies the requirement of Rule 243 that there

be evidence of unliquidated damages.

[**18] The trial court did not err when it

considered the affidavits in rendering its default

judgment.

Texas Commerce Bank v. New, 3 S.W.3d 515, 517

(Tex. 1999).

In the case now before this Court, it appears that the

trial court concluded that damages could not be properly

proven through affidavit. To the contrary, HN12 a trial

court may rely on affidavits in proving unliquidated

damages in default judgments; in fact it is error to not

consider the affidavits. Id. Rule 802 of the Texas Rules

of Evidence, the hearsay rule, will not prevent use of

evidence in the form of affidavits. Id. Affidavits are

probative evidence of unliquidated damages. Id.

"Testimony of the total amount due under a written

instrument is legally sufficient to support an award of

that amount in a default judgment proceeding." Id.

But not just any affidavit will do. Sherman's affidavit in

support of damages is signed by an unidentified

"attorney in fact," states the amount due on the account,

and that the "amount is within the knowledge of affiant

just and true." An affidavit which does not positively and

unqualifiedly represent the facts as disclosed in the

affidavit to be true and within the affiant's personal

knowledge is [**19] legally insufficient. Humphreys v.

Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). The trial

court rejected the evidentiary value of the affidavit.

Specifically, as to the affidavit relied upon to prove

damages, the trial court found the affiant's source of

knowledge was not stated and, as such it was not

adequate for the purposes of proving Sherman's

damages. 2 We agree. Accordingly, the affidavit is not

sufficient as evidence of Sherman's damages.

2

The findings of fact relevant to the affidavit are as follows:

FINDING OF FACT NO. 5. Plaintiff attached to its original petition an Affidavit of an unidentified individual.

FINDING OF FACT NO. 6. The affidavit of the unidentified individual claimed that the unidentified individual was

Attorney in Fact for Sherman Acquisition II LP.

FINDING OF FACT NO. 7. The affidavit of the unidentified individual did not claim that the unidentified individual

was a representative of Metris in any capacity.

FINDING OF FACT NO. 8. The affidavit of the unidentified individual failed to state any facts supporting the

statement that the unidentified individual had personal knowledge about the subject matter of this suit.

These findings have not been attacked on [**20] appeal.

229 S.W.3d 802, *810; 2007 Tex. App. LEXIS 4793, **16

Page 8 of 10
ATTORNEY'S FEE AFFIDAVIT

The other affidavit in the record was from one of

Sherman's attorneys. We believe it was legally sufficient

to support an attorney's fee award. It stated that the

affiant is a duly licensed attorney, that he was familiar

with the usual and customary attorney's fees in

McLennan County, and, based on his knowledge of the

services rendered to Sherman on this matter, $ 2,224.03

was a reasonable and customary fee for prosecuting

this claim. Because there was no controverting

evidence, this was legally sufficient to establish an

award for and Sherman's entitlement to attorney's fees.

Texas Commerce Bank v. New, 3 S.W.3d 515, 516-518

(Tex. 1999).

REQUEST FOR ADMISSIONS

(DAMAGES AND ATTORNEY'S FEES 3

)

Sherman served a request for admissions, as part of its

petition, on Garcia. [*812] Garcia did not file an answer

or other response. The requests were, therefore,

deemed admitted. TEX. R. CIV. P. 198.2(c). The deemed

admissions included the following:

3. Defendant understood from the time the

account made a basis of Plaintiff's Original

Petition was opened that use of the credit card

results in a loan being made to Defendant for

the amount charged or cash advance

requested.

4. [**21] Defendant understood from the time

the account made a basis of Plaintiff's Original

Petition was opened that Defendant is required

and obligated to repay all charges or cash

advances incurred on the account.

6. Defendant made the purchases and took

cash advances using the credit card made a

basis of Plaintiff's Original Petition.

15. Defendant did promise to pay Plaintiff for

said account.

17. Defendant has failed to pay Plaintiff for said

account.

18. Plaintiff made written demand upon

Defendant for payment of said account.

19. Written demand was made for payment of

said account more than 30 days prior to filing

this lawsuit.

20. Defendant has breached the contract made

a basis of Plaintiff's Original Petition.

21. Defendant presently owes Plaintiff the

amount of $ 6,672.08 on said account.

26. The terms of the credit card agreement

made a basis of Plaintiff's Original Petition

allowed Defendant to be charged late fees if

Defendant's monthly payments were late and

over credit limit fees if Defendant exceeded the

credit limit.

27. A reasonable attorney fee for Plaintiff's

attorney for the prosecution of this lawsuit would

be at least the amount of $ 2,224.03.

The request for admissions was imbedded in the

petition. No objection is made to this procedure and by

our holding we express no opinion upon the propriety of

this form of request for admissions or its service. See

Steffan v. Steffan, 29 S.W.3d 627, 629-631 (Tex.

App.-Houston [14th Dist.] 2000, pet. denied). The trial

court took judicial notice of the contents of its file. The

file included the request for admissions and proof of

service in the form of a return of service contained in the

file.

In examining the record before us, Garcia failed to

timely answer the request for admissions, or to file

written objections, or to file a motion to file answers late.

They were, therefore, deemed admitted. HN13

Admissions, once deemed admitted, are judicial

admissions and Garcia may not then introduce

controverting testimony in the legal proceeding related

thereto. Shaw v. National County Mut. Fire Ins. Co., 723

S.W.2d 236, 238 (Tex. App.-Houston [1st Dist.] 1986,

no writ). [**23] Deemed admissions may be employed

as proof, Elkins v. Jones, 613 S.W.2d 533, 534 (Tex.

Civ. App.-Austin 1981, no writ) (summary judgment);

and once admissions are deemed admitted by operation

of law and where said admissions fully support each

element of a cause of action, including damages, they

will fully support a judgment based thereon. This is

because unanswered requests for admissions are

3

The holding that the deemed admissions [**22] are sufficient to conclusively establish attorney's fees is an alternative

holding to the sufficiency of the attorney's fee affidavit. We note that the deemed admissions would also support all of the

elements of a suit for breach of contract as an alternative to Sherman's entitlement to a default judgment on liability.

229 S.W.3d 802, *811; 2007 Tex. App. LEXIS 4793, **19

Page 9 of 10
deemed admitted "without the necessity of a court

order" and any matter thus admitted is "conclusively

established" as being [*813] true. TEX. R. CIV. P.

198.2(c), 198.3. Thus, the facts admitted may not be

contradicted by evidence at the trial. Marshall v. Vise,

767 S.W.2d 699, 700 (Tex. 1989); Shaw v. National

County Mut. Fire Ins. Co., 723 S.W.2d 236, 238 (Tex.

App.-Houston [1st Dist.] 1986, no writ).

Because the trial court would have been able to

ascertain the amount of damages and attorney's fees

based on the request for admissions, we conclude that

the evidence conclusively established the amount of

damages to Sherman and attorney's fees and that the

trial court erred in failing to render judgment for

Sherman.

CONCLUSION

The trial court erred in determining that Sherman take

nothing because Sherman [**24] conclusively

established the amount of Sherman's damages.

Sherman was entitled to a default judgment on liability.

At the trial on the merits, the file of which the trial court

took judicial notice contained the request for admissions.

This was conclusive evidence of damages and

attorney's fees which could not be contradicted. We

reverse the judgment of the trial court and render the

judgment the trial court should have rendered, TEX. R.

APP. P. 43.2(c), for damages in the amount of $

6,672.08, attorney's fees in the amount of $ 2,224.03,

prejudgment interest on $ 6,672.08 from July 13, 2004

to November 4, 2005 at the rate of 6% per annum, and

postjudgment interest at the rate of 6% per annum on

the amount of the judgment from November 5, 2005

until paid.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and rendered

Opinion delivered and filed June 20, 2007

229 S.W.3d 802, *812; 2007 Tex. App. LEXIS 4793, **23

Page 10 of 10
| | Warning

As of: April 7, 2015 6:02 PM EDT

Southwestern Bell Mobile Sys. v. Franco

Supreme Court of Texas

June 5, 1998, Delivered

No. 97-0989

Reporter

971 S.W.2d 52; 1998 Tex. LEXIS 96; 41 Tex. Sup. J. 930; 14 I.E.R. Cas. (BNA) 54

SOUTHWESTERN BELL MOBILE SYSTEMS, INC.,

PETITIONER v. ODILIA FRANCO AND PATRICIA

MENDEZ, RESPONDENTS

Prior History: [**1] ON PETITION FOR REVIEW

FROM THE COURT OF APPEALS FOR THE

THIRTEENTH DISTRICT OF TEXAS.

Disposition: Southwestern Bell's petition for review

granted and, without hearing oral argument, court of

appeals' judgment on claims for intentional infliction of

emotional distress and for punitive damages reversed,

and judgment rendered that Franco and Mendez take

nothing on these claims. Court of appeals' judgment on

Franco's reinstatement affirmed. Court of appeals'

judgment on Franco's attorney's fees affirmed, but

judgment reversed and rendered that Mendez not

recover attorney's fees.

Core Terms

damages, reinstatement, attorney's fees, intentional

infliction of emotional distress, trial court, termination,

outrageous, award of attorney's fees, court of appeals,

fired, prevailing party, no evidence, punitive, nominal,

sexual

Case Summary

Procedural Posture

Petitioner telephone company requested review of a

decision of the Court of Appeals, 13th District (Texas),

which affirmed an award of actual and punitive damages

to respondent employees, based on intentional infliction

of emotional distress, and remanded for proof of

attorney's fees. Petitioner asserted that the evidence

was legally insufficient, reinstatement was improper,

and attorney's fees were unwarranted.

Overview

Petitioner telephone company requested review of an

appeals court decision, which affirmed an award of

actual and punitive damages to respondents, customer

service employees, based on intentional infliction of

emotional distress (IIED), and remanded for proof of

attorney's fees. Six months prior to termination for

defrauding petitioner, respondents complained of sexual

harassment. Respondents, in turn, sued for retaliatory

discharge. Petitioner asserted that the evidence was

legally insufficient, reinstatement was improper, and

attorney's fees unwarranted. The lower court held that

wrongful termination of respondents was so extreme

and outrageous that it supported a finding of IIED. The

lower court found respondents might get attorney's

fees, upon proof. One respondent sued for unlawful

discrimination and requested reinstatement.

Respondents sought attorney's fees under Tex. Lab.

Code § 21.259. The court reversed appeals court's

judgment for IIED and punitive damages because

evidence was legally insufficient. The court affirmed

one respondent's reinstatement and awarded her

attorney's fees, but denied fees for remaining

respondent, who received only nominal damages.

Outcome

The court reversed appeals court's judgment for

intentional infliction of emotional distress and punitive

damages in favor of petitioner telephone company

because evidence presented by respondents, customer

service employees, was legally insufficient. One

respondent's reinstatement and award of attorney fees

was affirmed. The other respondent was denied fees,

as she received only nominal damages.

LexisNexis® Headnotes

Torts > ... > Pain & Suffering > Emotional Distress >

Evidence

Torts > Intentional Torts > Intentional Infliction of Emotional

Distress > General Overview
Torts > Intentional Torts > Intentional Infliction of Emotional

Distress > Elements

HN1 To recover for the tort of intentional infliction of

emotional distress, a plaintiff must prove that: (1) the

defendant acted intentionally or recklessly; (2) the

conduct was "extreme and outrageous"; (3) the

defendant's actions caused the plaintiff emotional

distress; and (4) the resulting emotional distress was

severe.

Civil Procedure > ... > Standards of Review > Substantial

Evidence > General Overview

HN2 In reviewing "no evidence" points of error, the court

must consider the evidence and draw all inferences in

the light most favorable to the verdict. If the evidence is

legally sufficient when viewed in this light, then the court

may not reverse the trial court's judgment.

Opinion

[*53] PER CURIAM

Is wrongful termination of employment so extreme and

outrageous that, without more, it will support a jury

finding of intentional infliction of emotional distress?

The court of appeals held that it is. 1

It is not.

Furthermore, the respondents' punitive damages cannot

stand without the intentional-infliction claim. But, the

court of appeals' judgment is correct to the extent that it

affirmed the trial court's order reinstating Odilia Franco.

Further, there is no error in that portion of the judgment

reversing and remanding the trial court's order of

attorney's fees for Franco. We reverse, however, as

[**2] to Patricia Mendez's attorney's fees and hold that

Mendez may not recover such fees. Consequently, we

reverse in part and affirm in part the court of appeals'

judgment.

The Corpus Christi branch of Southwestern Bell Mobile

Systems employed Franco and Mendez as customer

service representatives. In May 1990, Southwestern

Bell fired Franco for numerous absences and poor job

performance. At that time, Franco informed

Southwestern Bell Vice President John Brantley that

the director of operations had made unwelcome sexual

comments to her and to other female employees.

Franco, Mendez, and several other women participated

in the ensuing investigation, which resulted in

Southwestern Bell firing the director of operations.

Southwestern Bell rehired Franco on a probationary

basis and amended her employment file to read that

sexual harassment caused her absenteeism.

In November 1990, Southwestern Bell fired Franco and

Mendez for allegedly misappropriating air-time credit

certificates and defrauding Southwestern [**3] Bell.

Southwestern Bell Director of Finance Joe Villarreal

met with each woman to inform her of her termination

and the reasons for it. Franco and Mendez subsequently

filed charges of unlawful discrimination with the Corpus

Christi Human Relations Commission, an arm of the

Texas Commission for Human Rights (TCHR).

Franco and Mendez sued Southwestern Bell, alleging

retaliatory discharge, intentional infliction of emotional

distress, and defamation. After receiving TCHR

permission to sue for civil rights violations, Franco filed

a second suit alleging unlawful discrimination and

seeking reinstatement. The two suits were consolidated

for trial. The jury found no defamation but did find that

retaliatory discharge occurred, although it awarded no

damages on that claim. The jury found for and awarded

Franco $ 25,500 and Mendez $ 20,000 in damages for

intentional infliction of emotional distress. Also, the jury

awarded Franco $ 20,000 and Mendez $ 25,500 in

punitive damages.

Franco and Mendez filed multiple post-verdict motions,

including one asking for equitable relief in the form of

reinstatement or rehiring, and one seeking attorney's

fees under section 21.259 of the Texas Labor Code,

[**4] which allows a plaintiff who successfully alleges

an unlawful employment practice to collect attorney's

fees. Southwestern Bell, in turn, moved for a judgment

notwithstanding the verdict.

The trial court rendered judgment ordering that Franco

and Mendez each recover $ 68,250 plus $ 22,750 in

attorney's fees. It is unclear why the trial court ordered

that each [*54] plaintiff recover $ 68,250 in damages

when the jury awarded each of them only $ 45,500. It

appears that the trial court may have included attorney's

fees twice. The trial court also ordered Southwestern

Bell to reinstate Franco as a collection representative.

Southwestern Bell appealed the finding of intentional

infliction of emotional distress, the award of attorney's

fees, and Franco's reinstatement. The court of appeals

affirmed Franco's reinstatement and the award of actual

1

951 S.W.2d 218.

971 S.W.2d 52, *53; 1998 Tex. LEXIS 96, **1

Page 2 of 5
and punitive damages to both Franco and Mendez

based on intentional infliction of emotional distress. 2

[**5] The court of appeals also held that, although an

award of attorney's fees was proper in this case, Franco

and Mendez had not properly proven the fees. 3 The

court of appeals remanded for proof supporting the

fees. 4

We turn first to Southwestern Bell's argument that no

evidence supports the award for intentional infliction of

emotional distress. HN1 To recover for the tort of

intentional infliction of emotional distress, a plaintiff

must prove that: (1) the defendant acted intentionally or

recklessly; (2) the conduct was "extreme and

outrageous"; (3) the defendant's actions caused the

plaintiff emotional distress; and (4) the resulting

emotional distress was severe. 5 We are here concerned

with the second element, which requires that the

conduct be "so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community." 6

Southwestern Bell argues that the [**6] evidence was

legally insufficient because Franco and Mendez

produced no evidence of extreme or outrageous

conduct. HN2 In reviewing "no evidence" points of error,

we must consider the evidence and draw all inferences

in the light most favorable to the verdict. 7

If the evidence

is legally sufficient when viewed in this light, then we

may not reverse the trial court's judgment. 8

Franco and Mendez rely mainly upon their evidence

that they were fired in retaliation for reporting sexual

harassment. However, the mere fact of termination of

employment, even if the termination is wrongful, is not

legally sufficient evidence that the employer's conduct

was extreme and outrageous under the rigorous

standard that we established in Twyman. 9

[**7] Perhaps recognizing that termination alone is

insufficient evidence, Franco and Mendez also

attempted to prove that Southwestern Bell's agents

behaved in an extreme and outrageous manner during

the termination. Specifically, Franco and Mendez

produced evidence that Southwestern Bell fired them in

the unnecessary presence of coworkers, forced them to

collect and remove their belongings in front of others,

and immediately took steps to repossess car phones

that Southwestern Bell owned. This evidence falls far

short of being legally sufficient to prove that

Southwestern Bell's conduct was extreme and

outrageous. 10

No evidence supports the jury finding of intentional

infliction of emotional distress, [*55] and so the finding

cannot support the judgment. Additionally, because no

evidence supports the claim for which actual damages

were awarded, we must reverse the punitive damages

award. 11

[**8] Turning to the reinstatement order, Southwestern

Bell argues that the court of appeals erred in affirming

the reinstatement order because Franco's pleadings

did not seek reinstatement, because Franco requested

reinstatement in a post-verdict hearing before the trial

court, and because reinstatement would disrupt

2

951 S.W.2d at 225, 226, 229.

3

951 S.W.2d at 226-27.

4

Id.

5 See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. d.).

6

Id.

7 See, e.g., Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 51 & n.1 (Tex. 1997).

8 See, e.g., Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994).

9 See Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (holding that evidence that an

employer wrongfully accused an employee of thievery and fired him is legally insufficient); Beiser v. Tomball Hosp. Auth., 902

S.W.2d 721, 725 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (holding that termination in violation of a whistleblower

statute is not in itself extreme and outrageous); see also Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)

("Even though conduct may violate Title VII as sexual harassment, it does not necessarily become intentional infliction of

emotional distress under Texas law.").

10 See Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex. 1993); Diamond Shamrock, 844 S.W.2d at 202.

11 See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).

971 S.W.2d 52, *54; 1998 Tex. LEXIS 96, **4

Page 3 of 5
Southwestern Bell's workplace. We reject each of these

as grounds for reversal. First, Franco's Original Petition

alleging unlawful employment practices "requests that

she reinstated [sic] with back pay retroactive to the date

of her termination." Typographical errors

notwithstanding, this request very clearly states a

reinstatement claim. Furthermore, this pleading was

not superseded merely because it was consolidated

into the previously filed suit. 12

Second, the jury found that Southwestern Bell

discharged Franco and Mendez in retaliation for their

complaints of sexual harassment, an unlawful

employment practice under Texas Labor Code sections

21.051 and 21.055. [**9] This finding specifically

empowered the trial court to prohibit such acts by

injunction and to "order additional equitable relief as

may be appropriate . . . [including] hiring or reinstating

with or without back pay." 13

Third, although Southwestern Bell produced some

evidence that Franco's return might be disruptive, other

evidence indicated that Southwestern Bell was opening

a new office in Corpus Christi and that Southwestern

Bell's employees would be willing to try to work with

Franco. When facts are disputed, we cannot conclude

that the trial court abused its discretion in ordering

reinstatement.

We now consider Southwestern Bell's final assertion:

that the trial court abused its discretion in ordering

attorney's fees for Franco and Mendez because the jury

awarded no damages on the retaliatory discharge claim

-- the only claim that can support an award of attorney's

fees. Southwestern Bell cites Farrar v. Hobby 14 for the

proposition that a plaintiff who [**10] receives nominal

or zero damages is not entitled to attorney's fees.

In Farrar, the plaintiff alleged that various state-actor

defendants had violated his civil rights. 15 Although the

jury agreed that the plaintiff's civil rights were violated,

they found that the defendants' actions were

nevertheless not a proximate cause of the plaintiff's

injury. 16The trial court entered judgment that the plaintiff

take nothing, and the court of appeals remanded for

entry of judgment ordering nominal damages of $ 1. 17

The United States Supreme Court considered whether

the plaintiff was entitled to attorney's fees as a

"prevailing party" due to the finding of civil-rights

violations and in spite of the nominal damages. 18 The

Court held that the plaintiff was within the definition of a

"prevailing party," but nevertheless rejected the award

of attorney's fees because the plaintiff failed to prove

damages -- an essential element for recovery. 19 In

such a case, the Court reasoned, "the only [**11]

reasonable fee is usually no fee at all." 20

Franco and Mendez attempted to recover attorney's

fees in this case under Texas Labor Code section

21.259, which, like its federal counterpart, gives the trial

court discretion to award reasonable attorney's fees to

a "prevailing party." We hold that, like the Farrar plaintiff,

Franco and Mendez were prevailing parties within the

meaning of [*56] section 21.259. Therefore, we must

decide whether Southwestern Bell is correct in asserting

that, despite Franco's and Mendez's status as prevailing

parties, the jury's award of zero damages on the

retaliatory discharge claim precludes an award of

attorney's fees.

Southwestern Bell seems to confuse the jury's verdict

with the trial court's judgment. It is the judgment, not the

verdict, that we must consider in determining whether

attorney's fees are proper. In Farrar, [**12] the Supreme

Court considered a judgment for nominal damages of $

12 Cf. TEX. R. CIV. P. 65.

13 TEX. LAB. CODE § 21.258(a), (b)(1).

14 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992).

15 See 506 U.S. at 105-06.

16 See id. at 106.

17 See id. at 107.

18 See id. at 105.

19 See id. at 115.

20 Id.

971 S.W.2d 52, *55; 1998 Tex. LEXIS 96, **8

Page 4 of 5
1. 21 In this case, we consider a judgment that ordered

reinstatement for Franco, although it did not order

meaningful relief for Mendez that has not been reversed

on appeal. Farrar speaks to the case of a "plaintiff who

seeks compensatory damages but receives no more

than nominal damages." 22 Mendez is such a plaintiff,

and therefore should not recover attorney's fees.

However, Farrar does not consider whether attorney's

fees are proper for a plaintiff who wins a judgment

awarding equitable relief, as Franco did. The award of

attorney's fees to Franco was not an abuse of discretion.

Under Texas Rule of Appellate Procedure 59.1, we

grant Southwestern Bell's petition for review and, without

hearing oral argument, reverse the court of appeals'

judgment on the claims for intentional infliction of

emotional distress and for punitive damages, and render

judgment that Franco and Mendez [**13] take nothing

on these claims. We affirm the court of appeals'

judgment on Franco's reinstatement. We also affirm the

court of appeals' judgment on Franco's attorney's fees,

but reverse and render judgment that Mendez not

recover attorney's fees.

Opinion delivered: June 5, 1998

21 See id. at 107.

22 Id. at 115.

971 S.W.2d 52, *56; 1998 Tex. LEXIS 96, **12

Page 5 of 5
Page 1 

Caution 

As of: Mar 30, 2015 

JAMES STEPHENSON, a/k/a JIM STEPHENSON, ET AL., Appellants v. CORPORATE SERVICES, INC., d/b/a LITHOCRAFT FINE PRINTING, Appellees 

No. 12-81-0073-CV 

COURT OF APPEALS OF TEXAS, Twelfth District, Tyler 

650 S.W.2d 181; 1983 Tex. App. LEXIS 4283

March 31, 1983 

PRIOR HISTORY: [**1] Appeal from the 

127th Judicial District Court of Harris County, Texas. 

COUNSEL: Thomas J. Gavronovic, Houston, Texas, for 

Appellant. 

George M. Bishop, Houston, Texas, for Appellee. 

JUDGES: Paul S. Colley, Associate Justice. 

OPINION BY: COLLEY 

OPINION 

 [*182] This is an appeal by writ of error challenging the entry of a default judgment against appellants. On April 1, 1980, Corporate Services, d/b/a

Lithocraft Fine Printing, hereinafter appellee, filed a suit 

with sworn account annexed against James Stephenson, 

a/k/a Jim Stephenson, individually and doing business as 

Jim Stephenson Investments and Jim Stephenson Co., the 

Stephenson Foundation, Inc., a nonprofit corporation, 

Franklin National Corp., Ltd., a Cayman Island (foreign) 

corporation and Jim Stephenson Company, Inc., a Texas 

corporation, hereinafter appellants. The suit sought recovery jointly and severally against appellants of the sum 

of $60,228.27 and interest thereon for an unpaid account 

for printing services, materials and postage furnished 

appellants by appellee. Appellee also sought attorney's 

fees under Article 2226, V.A.C.S., in the amount of

$20,000.00. 

A statement of facts was filed in the appeal [**2] 

by appellee and reflects that, after the issuance, service, 

return and filing of citation in the cause the trial court 

called the case for trial and conducted an evidentiary 

hearing on damages and attorney's fees on October 21, 

1980. Appellee appeared by counsel and Cecil Smith, 

its representative, and the appellants having theretofore 

failed to appear or file answers also failed to appear at 

the call of the case for trial. Cecil Smith, who was the 

general manager of Lithocraft Fine Printing, was sworn 

and testified for appellee. The witness testified that he 

was acquainted with the appellant, James Stephenson, 

a/k/a Jim Stephenson and that Stephenson had ordered 

various printing jobs done and instructed the appellee to 

bill Franklin National Corp., Ltd., or Stephenson Foundation therefor; that Stephenson paid previous printing 

bills to appellee from all of such companies; and that 

$60,228.27 was due and owing and unpaid by the appellant to appellee on the printing account. Appellee also 

introduced into evidence a written agreement signed by 

appellant Jim Stephenson (Plaintiff's Exhibit No. 3, 

Transcript p. 19) in which Jim Stephenson personally 

guaranteed the payment of all indebtednesses [**3] 

owed by Stephenson Foundation no later than December 

1, 1979. Sharolyn Wood, attorney for appellee, testified 

that a reasonable attorney's fee in the case would be 

$20,000.00. Following this hearing the trial court

signed a default judgment in favor of appellee against 
Page 2 

650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, ** 

appellants, jointly and severally, for $60,228.27 damages, prejudgment interest in the amount of $3,486.11, and 

attorney's fees in the amount of $20,000.00, together 

with all costs and with interest on the judgment sum at 

the rate of 9% per annum until paid. On April 20, 1981, 

appellants filed this petition for writ of error. 

In their brief appellants raise three points of error. 

The first point alleges error in entering the default judgment against appellant, Franklin National Corp., Ltd., 

and Jim Stephenson Company, Inc., because the officer's 

return on the citation does not show service on the proper 

party. The return [*183] on the citation served on 

appellant, Franklin National Corp., Ltd., reads: 

CONSTABLE'S RETURN 

Received this writ on the 23 of July, 1980 at 10:23

o'clock A.M., and executed the same in Harris County, 

Texas, on the 27 day of Sept., 1980, at 7:50 [**4] 

o'clock P.M., by summoning the FRANKLIN NATIONAL CORP., 

(by delivering to JIM STEPHENSON, in person, a 

corporation President 

(by leaving in the principal office during office 

hours 

 of said CORPORATION a true copy of this 

writ, together with accompanying certified copy plaintiff's original petition. 

ED "TRACY" MAXON, Constable Precinct No. 5 

Harris County, Texas 

 By /s/ J. LOOP, Deputy 

The return on the citation served on appellant, Jim

Stephenson Company, Inc., reads: 

CONSTABLE'S RETURN 

Received this writ on the 23 day of July, 1980 at 

10:23 o'clock A.M., and executed the same in Harris

County, Texas, on the 27 day of Sept., 1980, at 7:50 

o'clock P.M., by summoning the JIM STEPHENSON 

COMPANY, INC., 

(by delivering to JAMES STEPHENSON, in person, 

a corporation PRESIDENT 

(by leaving in the principal office during office 

hours 

 of the said CORPORATION a true copy of 

this writ, together with accompanying certified copy 

plaintiff's original petition. 

ED "TRACY" MAXON, Constable Precinct No. 5 

Harris County, Texas 

 By /s/ J. LOOP [**5] , Deputy 

In support of their argument appellants cite, among

other cases, Southern Pacific Co. v. Block, 84 Tex. 21, 19 

S.W. 300 (Tex. 1892). It is clear that a default judgment, 

not supported by proper service of process, is void. In a 

direct attack by writ of error on the judgment, no presumption obtains from the recitation in the default judgment that proper service was had. Strict compliance 

with the law regarding service of process must be affirmatively shown by the transcript unless the defendants 

in the judgment made an appearance before judgment. 

Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934

(Tex. Comm'n App. 1935, opinion adopted); McKanna v. 

Edgar, 388 S.W.2d 927 (Tex. 1965). 

In our case, Franklin National Corp., Ltd., was 

named as a defendant upon whom service could be had

by serving the president, Jim Stephenson. As above set 

forth the return made by the deputy constable recites that 

the citation (writ) was executed by ". . . summoning the 

Franklin National Corp . . . ." The question then is posed, 

does the well-established "strict compliance" rule announced in Flynt and McKanna above render the default 

judgment void [**6] as to Franklin National Corp.,

Ltd., because the officer's return failed to write the word 

"Ltd." after the word "Corp."? Appellants argue that 

Southern Pacific Co., supra, controls. We do not agree. 

In that case plaintiff intended to sue Southern Pacific 

Company, but in fact sued Southern Pacific Railroad

Company. The citation was directed to Southern Pacific 

Railroad Company and the return showed service on 

Southern Pacific Company. In the case before us appellee named the appellant, Franklin National Corp., 

Ltd., as a party defendant. The citation directed service 

on Franklin National Corp., Ltd., by serving Jim Stephenson as president. The return though reciting service 

was accomplished by summoning Franklin National 

Corp. by delivery to Jim Stephenson as president a true 

copy of the writ and a ". . . certified copy of Plaintiff's 

Original Petition." Southern Pacific Co. is obviously 

distinguishable on the facts as shown by the transcript 

here. In that case the intended defendant was not 

named in the pleading and the citation was not directed

to Southern Pacific Co., but to Southern Pacific Railroad 

Co. 

Service of process in this case is governed by Article 

[**7] 2.11, Texas Business Corp. Act, V.A.C.S., which 

reads in part: "A. The president . . . of the corporation 

shall be agent of such corporation upon whom any process, notice, . . . may be served." 

 [*184] We have carefully reviewed the transcript 

in this case and note that in Paragraph 1 of appellee's 

original petition it is alleged, "Defendant Franklin National Corp., Ltd., may be served with citation by serving 

its president, Jim Stephenson . . . in Harris County, Texas." The purpose of citation is to give notice to a de-
Page 3 

650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, ** 

fendant that he has been sued and by whom and for what 

so that due process will be served and the defendant will 

have an opportunity to appear and defend the action. 

Sgitcovich v. Sgitcovich, 236 S.W.2d 861, 864 (Tex. Civ. 

App. -- Galveston 1951), rev'd on other grounds, 150 

Tex. 398, 241 S.W.2d 142; Gilbert v. Lobley, 214 S.W.2d 

646, 650 (Tex. Civ. App. -- Fort Worth 1948, no writ). 

In this case an examination of the full record, including 

the pleadings of appellee and the citation and return 

thereon, shows affirmatively that appellant, Franklin 

National Corp., Ltd., was served with proper process 

sufficient to put it upon notice of the suit. [**8] See, 

Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394

(Tex. Civ. App. -- Fort Worth 1981, writ ref'd n.r.e.). 

And in so holding we decline to follow Mecca Fire Ins. 

Co. v. Campbell, 145 S.W. 630 (Tex. Civ. App. -- Galveston 1912, no writ) and adopt the statement in that case 

made in dissent by Justice Reese at 632: ". . . It would 

seem to be a sacrifice of substance to form . . ." to hold 

in this case that Jim Stephenson alleged to be the president of Franklin National Corp., Ltd., was not apprised 

by the service here that Franklin National Corp., Ltd., 

was sued by appellee. In fact, the transcript reflects that 

on October 30, 1980, (within ten days after the entry of 

the default judgment) appellant Franklin National Corp., 

Ltd., filed a motion to set aside the default judgment and 

for new trial on the grounds that Jim Stephenson was not 

an officer of said company and was not authorized to 

accept service. This motion was overruled on November 26, 1980, and the form of the order was approved by 

appellant's counsel, Thomas J. Gavranovic. We believe 

that we have given the officer's return a fair, reasonable 

and natural construction, and considering the record as a 

[**9] whole, have given effect to the plain meaning and 

intent of the citation and return. 72 C.J.S., Process Section 97; 62 Am Jur 2d, Process, Section 165. 

All other cases cited on this point by appellant, including Brown-McKee, Inc. v. J. F. Bryan & Assoc., 522 

S.W.2d 958 (Tex. Civ. App. -- Texarkana 1975, no writ), 

are all distinguishable on their facts. 

Appellants' point 1, as it refers to the service of process on Jim Stephenson Company, Inc., contends that

since the citation directed service on it by serving Jim 

Stephenson, its president, and the return shows that the 

process was delivered to James Stephenson, its president, 

such is fatally defective. There is no merit to such argument. The officer's return that James Stephenson was 

president of the corporation is prima facie evidence of 

that fact. Employer's Reinsurance Corp. v. Brock, 74 

S.W.2d 435 (Tex. Civ. App. -- Eastland 1934, writ dism'd); LaFleaur v. Switzer, et al., 109 S.W.2d 239 at 241

(Tex. Civ. App. -- Beaumont 1937, no writ). Appellant's point 1 is overruled. 

By their second point appellants attack the sufficiency of the sworn account attached to the petition as 

being insufficiently itemized, and [**10] by their third 

point claim the default judgment must be struck down 

because of variances between invoices and itemized accounts. Appellants do not point out or set forth any such 

claimed discrepancies or cite any authorities to support 

the point. However, we have carefully reviewed the

account and pleading of the appellee and find that the 

petition alleges the sale and delivery of services and 

goods, wares and merchandise described in Exhibit A; 

the petition further alleges that the appellants promised 

to pay and failed to do so, and alleged reasonable attorney's fees on the part of the appellee in the sum of 

$20,000.00. Exhibit A attached to the pleading includes 

the affidavit of the account in proper form with a summary of the individual transactions and their respective 

dates, which are the subject matter of this suit, and the 

amount due on each of said invoices. Ledger sheets attached to [*185] the account also show a systematic 

entry of credits and debits in the account and the resulting balances and dates thereof beginning on April 30, 

1979, and ending on January 31, 1980. Then follows

seven individual invoices as a part of the account, numbered and dated with adequate [**11] description of 

printing jobs done and charges therefor, together with the 

dates thereof. Therefore we hold that appellee sufficiently complied with Tex. R. Civ. P. 185, and that the 

account shows with a reasonable degree of certainty the 

nature each item, i.e., each printing job done, the charges 

made therefor and the dates of each transaction. Boucher v. City Paint & Supply, Inc., 398 S.W.2d 352 (Tex. 

Civ. App. -- Tyler 1966, n.w.h.); see also Williamsburg 

Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168

(Tex. Civ. App. -- Houston [1st Dist.] 1970, n.w.h.). 

Appellant's second point is overruled. 

As earlier stated in the opinion an evidentiary hearing was conducted by the trial court on the issue of 

damages and attorney's fees. In that hearing appellee 

introduced sufficient evidence to establish the furnishing 

of the printing services, materials and postage by appellee to appellants which was the subject of the sworn account. The testimony of Mr. Smith established the debt 

as being unpaid in the amount sued for. No complaint is 

made in this appeal regarding the sufficiency of the evidence to support the award of attorney's fees made by the 

trial court because [**12] of the nature of the mode of 

review of the judgment sought by appellants. Thus,

since we have found that Franklin National Corp., Ltd., 

and Jim Stephenson Company, Inc., are properly before 

the court, that appellee alleged a cause of action requiring an answer on the part of all appellants, each of whom 

failed to appear and answer but wholly made default, the 

cause of action alleged was admitted. Watson v. Sheppard Federal Credit Union, 589 S.W.2d 742, 744 (Tex. 
Page 4 

650 S.W.2d 181, *; 1983 Tex. App. LEXIS 4283, ** 

Civ. App. -- Fort Worth 1979, writ ref'd n.r.e.); proper 

proof of damages and attorney's fees being made, the 

default judgment is upheld. TXXN, Inc. v. D/FW Steel 

Co., 632 S.W.2d 706, 707 (Tex. App. -- Fort Worth 1982, 

no writ); Jones v. Ben Maines Air Conditioning, 621 

S.W.2d 437 (Tex. Civ. App. -- Texarkana 1981, no writ). 

The judgment of the trial court is affirmed. 
| | Caution

As of: April 7, 2015 6:03 PM EDT

Sutton v. Hisaw & Assocs. Gen. Contrs., Inc.

Court of Appeals of Texas, Fifth District, Dallas

November 30, 2001, Opinion Filed

No. 05-01-00002-CV

Reporter

65 S.W.3d 281; 2001 Tex. App. LEXIS 8001

RANDY SUTTON, Appellant v. HISAW & ASSOCIATES

GENERAL CONTRACTORS, INC. AND RICHARD L.

HISAW INDIVIDUALLY, Appellees

Subsequent History: [**1] Rehearing Denied January

14, 2002. Released for Publication January 14, 2002.

Petition for Review Denied March 28, 2002.

Prior History: On Appeal from the 44th Judicial District

Court. Dallas County, Texas. Trial Court Cause No.

DV99-05835.

Disposition: REVERSED and RENDERED.

Core Terms

Contractors, materials, no evidence, cause of action,

damages, contends, trial court's judgment, legal

insufficiency, default judgment, field house

Case Summary

Procedural Posture

After losing a money judgment to another party, plaintiff

contractor filed a lawsuit against defendant worker to

recover the damages awarded in the prior suit. The

contractor asserted causes of action for fraud, breach

of contract, and quantum meruit. The 44th Judicial

District Court, Dallas County, Texas, rendered a

post-answer default judgment in favor of the contractor.

The worker later filed a notice of restricted appeal.

Overview

The contractor was the general contractor for a

construction project to build a field house for a school

district. Contractor hired a subcontractor to perform the

electrical work. The worker was an employee of the

subcontractor. In performing its work, the subcontractor

purchased materials from an electric supply company.

Later, the worker signed two partial lien releases stating

all materials used in the field house were paid for. He

signed these lien releases as "co-owner of the

subcontractor." The materials were never paid for. The

supplier sued the contractor and recovered a large

judgment. The contractor then sued the worker. On

appeal, the worker contended there was insufficient

evidence to establish the essential elements of the

contractor's fraud cause of action. Because the appeals

court found there was no evidence of either reliance or

damages caused by any misrepresentation, it held the

evidence was legally insufficient to support the judgment

in favor of the contractor based on his fraud cause of

action. The absence of any evidence to support at least

one element of each of the contractor's causes of action

constituted error apparent on the face of the record.

Outcome

The appeals court reversed the trial court's judgment

and remanded the case.

LexisNexis® Headnotes

Civil Procedure > Remedies > Writs > General Overview

Governments > Legislation > Statute of Limitations > Time

Limitations

HN1 A restricted appeal is a direct attack on a trial

court's judgment.A restricted appeal must (1) be brought

within six months after the trial court signs the judgment,

(2) by a party to the suit who did not participate in the

actual trial, and (3) the error complained of must be

apparent on the face of the record.

Civil Procedure > Remedies > Writs > General Overview

HN2 In a restricted appeal, an appellant is afforded the

same scope of review as an ordinary appeal, which

includes a review of the entire case. A review of the
entire case includes a review of legal and factual

sufficiency claims.

Civil Procedure >Appeals > Standards of Review > General

Overview

HN3 A legal sufficiency, or no-evidence point of error, is

a question of law. An appellant who is challenging the

legal sufficiency of the evidence must demonstrate that

no evidence exists to support the judgment. In reviewing

a legal sufficiency point of error, an appellate court

looks to see whether any evidence supports the

judgment. If there is more than a scintilla of evidence,

the appellate court upholds the judgment.

Civil Procedure > Appeals > Standards of Review > Clearly

Erroneous Review

HN4 When an appellant challenges the factual

sufficiency of the evidence, the appellant must establish

the evidence is factually insufficient to support the

judgment. In reviewing such issues, an appellate court

considers all the evidence presented at trial. The

appellate court may only set aside a finding for factual

insufficiency if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and

unjust.

Torts > Business Torts > Fraud & Misrepresentation >

General Overview

HN5 A fraud cause of action requires: (1) a material

misrepresentation, (2) that was either known to be false

when made or was asserted without knowledge of its

truth, (3) which was intended to be acted upon, (4)

which was relied upon, and (5) which caused injury.

Contracts Law > Breach > Breach of Contract Actions >

General Overview

Contracts Law > Breach > Breach of Contract Actions >

Elements of Contract Claims

Contracts Law > Breach > General Overview

Contracts Law > Standards of Performance > Delivery &

Tender

Contracts Law > Remedies > Equitable Relief > Quantum

Meruit

HN6 The elements of a breach of contract action are (1)

the existence of a valid contract, (2) performance or

tendered performance by the plaintiff, (3) breach of the

contract by the defendant, and (4) damages sustained

by the plaintiff as a result of the breach.

Contracts Law > Remedies > Equitable Relief > General

Overview

HN7 The elements of a quantum meruit claim include

proof of (1) valuable services that were rendered or

materials furnished, (2) for the person sought to be

charged, (3) which services and materials were

accepted by the person sought to be charged, used,

and enjoyed by him, (4) under such circumstances as

reasonably notified the person sought to be charged

that the plaintiff in performing such services was

expecting to be paid by the person sought to be charged.

Counsel: FOR APPELLANT: Robert Smith Morris, The

Hammerle Law Firm, Denton, Tx.

FOR APPELLEES: Jeffrey Robert Sandberg, McGuire,

Craddock & Strother, P.C., Dallas, TX.

Judges: Before Justices Kinkeade, Richter, and

Francis. Opinion By Justice Richter.

Opinion by: MARTIN RICHTER

Opinion

Opinion By Justice Richter

[*283] In this restricted appeal, Randy Sutton contends

the trial court erred in rendering a post-answer default

judgment in favor of Hisaw & Associates General

Contractors, Inc. and Richard L. Hisaw individually

(collectively Hisaw), because the evidence is legally

and factually insufficient. We agree with Sutton that the

evidence is legally insufficient and, therefore, reverse

the trial court's judgment.

BACKGROUND

Hisaw was the general contractor for a construction

project to build a field house for the Carrollton

Independent School District. Hisaw hired D.R.

Contractors as a subcontractor to perform electrical

work [*284] on the field house. Sutton was an employee

of D.R. Contractors. In performing this subcontracting

work, D.R. Contractors purchased materials from

Crawford Electric Supply Company (Crawford).

Subsequently, Sutton signed two partial lien releases

stating that, as of particular dates, all materials [**2]

used in building the field house were paid for. Sutton

signed these lien releases as "co-owner of D.R.

Contractors." These facts are undisputed.

65 S.W.3d 281, *281; 2001 Tex. App. LEXIS 8001, **1

Page 2 of 4
Hisaw makes various other allegations in the petition.

The petition states Hisaw paid D.R. Contractors for its

work, primarily based on the assertions in the liens.

Subsequently, Hisaw received notice from Crawford

that it had not been paid for the materials D.R.

Contractors used on the field house. Crawford

eventually filed suit against Hisaw and recovered a

judgment in the amount of $ 148,398.38.

Hisaw then instituted this lawsuit against Sutton and

others to recover the damages awarded in the Crawford

suit. Hisaw asserted causes of action for fraud, breach

of contract, quantum meruit, and indemnity by express

agreement. Sutton filed a general denial. Sutton did not

appear for trial, and the trial court rendered a

post-answer default judgment. Three months later, after

the time expired for filing a traditional appeal, Sutton

filed a notice of restricted appeal.

DISCUSSION

In issue one, Sutton contends he has met the

requirements for a restricted appeal. HN1 A restricted

appeal is a direct attack on the trial court's judgment.

[**3] Gen. Elec. Co. v. Falcon Ridge Apartments Joint

Venture, 811 S.W.2d 942, 943 (Tex. 1991). A restricted

appeal must (1) be brought within six months after the

trial court signs the judgment, (2) by a party to the suit

who did not participate in the actual trial, and (3) the

error complained of must be apparent on the face of the

record. Norman Communications v. Tex. Eastman Co.,

955 S.W.2d 269, 270 (Tex. 1997). HN2 In a restricted

appeal, an appellant is afforded the same scope of

review as an ordinary appeal, which includes a review

of the entire case. Id. A review of the entire case

includes a review of legal and factual sufficiency claims.

Id.

Hisaw concedes Sutton has met the first two

requirements for a restricted appeal, and we agree.

Sutton brought the appeal within six months of the

judgment. He was also a party to the suit, but did not

participate in the trial. Therefore, we resolve issue one

in Sutton's favor and have jurisdiction to review the

record to determine whether there is error on the face of

the record.

In issue two, Sutton challenges the legal and factual

sufficiency of the evidence to support the trial court's

judgment. Sutton [**4] contends there was no evidence

or, alternatively, insufficient evidence to establish the

essential elements of Hisaw's fraud cause of action.

HN3 A legal sufficiency, or no-evidence point of error, is

a question of law. R.S. v. B.J.J., 883 S.W.2d 711, 715

(Tex. App.-Dallas 1994, no writ). An appellant who is

challenging the legal sufficiency of the evidence must

demonstrate that no evidence exists to support the

judgment. Casino Magic Corp. v. King, 43 S.W.3d 14,

19 (Tex. App.-Dallas 2001, pet. denied). In reviewing a

legal sufficiency point of error, we look to see whether

any evidence supports the judgment. See id. If there is

more than a scintilla of evidence, we uphold the

judgment. See id. In contrast, HN4 when an appellant

challenges the factual sufficiency of the evidence, the

appellant must establish the evidence is factually

insufficient to support the judgment. See id. In reviewing

such issues, we consider [*285] all the evidence

presented at trial. See R.S., 883 S.W.2d at 715. We

may only set aside a finding for factual insufficiency if it

is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and [**5] unjust. See id.

In this case, Sutton argues there is no evidence, or

factually insufficient evidence, to support the judgment.

Specifically, Sutton contends Hisaw presented

insufficient evidence of reliance and damages.

HN5 A fraud cause of action requires: (1) a material

misrepresentation, (2) that was either known to be false

when made or was asserted without knowledge of its

truth, (3) which was intended to be acted upon, (4)

which was relied upon, and (5) which caused injury.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001) (citing Formosa Plastics Corp. U.S.A. v. Presidio

Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.

1998)).

After Sutton did not appear for trial, Hisaw moved for a

default judgment.At the default judgment hearing, Hisaw

called no witnesses to testify. Instead, Hisaw offered the

following: (1) the contract between D.R. Contractors

and Hisaw, (2) two partial waivers of liens signed by

Sutton as co-owner of D.R. Contractors, (3) a transcript

of Sutton's testimony in a different case, (4) a judgment

from a different case, and (5) an affidavit of attorney's

fees.

We now review this evidence presented at the hearing

[**6] to determine whether Hisaw presented any

evidence of the essential elements of his fraud cause of

action. In the petition, Hisaw contends he paid Sutton

for the materials and labor based on the assertions in

the waivers, particularly the assertion that all materials

had been paid for. At the hearing on the default

65 S.W.3d 281, *284; 2001 Tex. App. LEXIS 8001, **2

Page 3 of 4
judgment, Hisaw presented the waivers, but presented

no evidence establishing that he paid Sutton based on

any assertions in the waivers. Therefore, Hisaw

presented no evidence that he relied on any

misrepresentations. In addition, Hisaw contends

Crawford sued him for payment of materials D.R.

Contractors used on the field house and recovered a

judgment in the amount of $ 148,398.38. However,

while Hisaw offered a judgment in a suit between

Crawford and Hisaw awarding this exact amount of

damages, he did not present any evidence tying this

judgment to any actions of Sutton. Therefore, there is

no evidence of injury caused by any misrepresentation.

Because we conclude there is no evidence in the record

of either reliance or damages caused by any

misrepresentation, we conclude the evidence is legally

insufficient to support the trial court's judgment in favor

of Hisaw based [**7] on his fraud cause of action.

Hisaw also asserted causes of action for breach of

contract, quantum meruit, and indemnity by express

agreement. HN6 The elements of a breach of contract

action are (1) the existence of a valid contract, (2)

performance or tendered performance by the plaintiff,

(3) breach of the contract by the defendant, and (4)

damages sustained by the plaintiff as a result of the

breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593

(Tex. App.-Houston [14th Dist.] 2000, no pet.). We have

already concluded Hisaw failed to establish any

damages as a result of any actions caused by Sutton.

Therefore, Hisaw failed to present any evidence of one

of the elements of a breach of contract action and, thus,

failed to present legally sufficient evidence to establish

a breach of contract.

HN7 The elements of a quantum meruit claim include

proof of (1) valuable services that were rendered or

materials furnished, (2) for the person sought to be

charged, (3) which services and materials were

accepted by the person sought to be charged, used,

and enjoyed by him, (4) [*286] under such

circumstances as reasonably notified the person sought

to be charged that the plaintiff in performing [**8] such

services was expecting to be paid by the person sought

to be charged. Bashara v. Baptist Mem'l Hosp. Sys.,

685 S.W.2d 307, 310 (Tex. 1985). Hisaw presented no

evidence that he presented services or materials to

Sutton. Therefore, there is legally insufficient evidence

to establish a quantum meruit cause of action.

Finally, as to Hisaw's cause of action for indemnity by

express agreement, we acknowledge that the partial

waiver of lien provides at least some evidence of an

agreement for Sutton to indemnify Hisaw for any

damages "sustained by reason of labor performed

and/or materials and supplies furnished . . . on said

project." However, Hisaw presented no evidence to

support his allegation he was sued for materials that

were not paid for by D.R. Contractors and Sutton.

Without evidence of such a suit, there is no evidence

Sutton is liable for failure to indemnify. Therefore, there

is legally insufficient evidence to establish a cause of

action for indemnity.

The absence of any evidence to support at least one

element of each of Hisaw's causes of action constitutes

error apparent on the face of the record. See Casino

Magic Corp., 43 S.W.3d at 20. [**9] We resolve Sutton's

second issue in his favor.

CONCLUSION

Our disposition of Sutton's second issue makes it

unnecessary for us to consider his remaining issues.

See TEX. R. APP. P. 47.1. Having concluded there is

legally insufficient evidence to support the judgment,

we are required to reverse and render. See Nat'l Life

Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.

1969). We reverse the trial court's judgment and render

judgment that Hisaw take nothing on his claims against

Sutton.

MARTIN RICHTER

JUSTICE

65 S.W.3d 281, *285; 2001 Tex. App. LEXIS 8001, **6

Page 4 of 4
| | Caution

As of: April 7, 2015 6:04 PM EDT

Texas Commerce Bank v. New

Supreme Court of Texas

September 9, 1999, Opinion Delivered

NO. 98-0744

Reporter

3 S.W.3d 515; 1999 Tex. LEXIS 105; 42 Tex. Sup. J. 1175

TEXAS COMMERCE BANK, NATIONAL

ASSOCIATION, N/K/A CHASE BANK OF TEXAS,

NATIONAL ASSOCIATION, PETITIONER v. ROBIN

NEW D/B/A RIVER CITY AUTO SALES AND WILLIAM

PACHECO D/B/A PACHECO MOTOR CAR SALES,

RESPONDENTS

Subsequent History: [**1] As Amended September 9,

1999.

Prior History: ON PETITION FOR REVIEW FROM

THE COURT OF APPEALS FOR THE THIRD

DISTRICT OF TEXAS.

Disposition: Reversed the judgment on the issue of

damages and attorney's fees, and remanded to the trial

court for entry of judgment for Texas Commerce Bank

consistent with this opinion.

Core Terms

attorney's fees, legally sufficient, court of appeals,

hearsay, unliquidated damages, default judgment,

damages, trial court, deposit, checks

Case Summary

Procedural Posture

Petitioner bank sought review of the judgment of the

Court of Appeals for the Third District of Texas that

affirmed the default judgment entered by the trial court,

but reversed the award of unliquidated damages and

attorneys' fees based solely on affidavits submitted by

petitioner, in an action claiming fraud, breach of contract,

conspiracy, and civil theft by respondent car salesmen.

Overview

Respondent salesmen were partners in a series of

cyclical transactions involving petitioner and another

bank, which resulted in losses to petitioner bank. The

scheme involved deposits of insufficient funds checks

from the two banks to make it appear that each account

had more on deposit than was actually the case. The

other bank discovered the scheme and stopped

payment on its checks, resulting in debits and overdrafts

being charged by petitioner. Petitioner sued for fraud,

breach of contract, conspiracy, and civil theft. When

respondents failed to answer, default judgment was

entered and damages and attorneys' fees were awarded

on the basis of affidavits submitted by petitioner. The

judgment was upheld on appeal, but the damages and

fees award was reversed. Petitioner sought review. In

affirming with respect to the default judgment, but

reversing with respect to the damages and fees issue,

the court ruled that Tex. R. Civ. P. 243 and 802 did not

bar use of affidavits as evidence of unliquidated

damages. Because unobjected-to hearsay constituted

probative evidence, affidavits satisfied the requirement

of rule 243 that there be evidence of unliquidated

damages.

Outcome

The judgment was affirmed with respect to the issue of

liability under the default judgment, but reversed on the

damages and fees issue, because respondents failed

to answer the complaint and because affidavits could

constitute probative evidence for purposes of an

unliquidated damages hearing.

LexisNexis® Headnotes

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

Torts > Remedies > Damages > General Overview
HN1 See Tex. R. Civ. P. 243.

Evidence > ... > Statements as Evidence > Hearsay >

General Overview

HN2 See Tex. R. Civ. P. 802.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

Torts > Remedies > Damages > General Overview

HN3 Nothing in Tex. R. Civ. P. 802 limits its application

to contested hearings. The rule is not ambiguous and

requires no explication. Because unobjected to hearsay

constitutes probative evidence, it satisfies the

requirement of Tex. R. Civ. P. 243 that there be evidence

of unliquidated damages. Thus, a trial court does not err

when it considers affidavits in rendering a default

judgment.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Contracts Law > ... > Types of Damages > Compensatory

Damages > General Overview

HN4 Testimony of the total amount due under a written

instrument is legally sufficient to support an award of

that amount in a default judgment proceeding.

Civil Procedure > Remedies > Costs & Attorney Fees >

General Overview

HN5 An uncontested affidavit that establishes a prima

facie case for attorney's fees is legally sufficient to

support an attorney's fees award.

Counsel: For PETITIONER: Mr. C.W. "Rocky" Rhodes,

Locke Liddell & Sapp, Austin, TX. Mr. G. Alan Waldrop,

Locke Liddell & Sapp, Austin, TX. Ms. Barbara M. Ellis,

Austin, TX. Ms. Susan P. Kravik, Chase Bank of Texas,

National Association, Dallas, TX.

For RESPONDENT: Mr. William B. Gammon, Austin,

TX.

Opinion

[*515] Per Curiam

Texas Commerce Bank obtained a default judgment

against Robin New, d/b/a River City Auto Sales, and

William Pacheco, d/b/a Pacheco's Motor Car Sales. To

support its motion for default judgment, Texas

Commerce presented three affidavits. No oral testimony

was taken at the default judgment hearing. On appeal,

the court of appeals held that the affidavits, constituting

hearsay, were not evidence under Rule 243 of the

Texas Rules of Civil Procedure, which requires that the

trial court "hear evidence" on unliquidated [*516]

damages. 1 The court of appeals further held that even

if affidavits constitute [**2] evidence under Rule 243,

these affidavits were not legally sufficient to support the

trial court's judgment. Accordingly, the court of appeals

affirmed on the issue of New and Pacheco's liability and

reversed and remanded for a new trial on the issue of

unliquidated damages and attorney's fees. 2

We conclude that because unobjected-to hearsay is, as

a matter of law, probative evidence, affidavits can be

evidence for purposes of an unliquidated-damages

hearing pursuant to Rule 243. We further conclude that

the affidavits here are legally sufficient to support the

trial court's judgment on both damages and attorney's

fees. Consequently, we affirm the court of appeals'

judgment on the issue of liability, reverse on the issue of

unliquidated damages and attorney's fees, and render

judgment for Texas Commerce Bank.

At the outset, Texas Commerce contends that New and

Pacheco did not preserve for the court of appeals'

consideration the issues of whether [**3] the affidavits

constituted evidence of unliquidated damages under

Rule 243 or whether the affidavits, if evidence, were

legally sufficient. We assume without deciding that these

issues were properly preserved.

In addressing the merits, the court of appeals correctly

stated:

1

TEX. R. CIV. P. 243.

2

971 S.W.2d 711.

3 S.W.3d 515, *515; 1999 Tex. LEXIS 105, **1

Page 2 of 4
It is well settled that once a default judgment is taken

against a non-answering defendant on an unliquidated

claim, all allegations of fact set forth in the petition are

deemed admitted, except the amount of damages.

[citations omitted] 3

Therefore, we know that New and Pacheco were

partners in a check-kiting scheme that resulted in a loss

to Texas Commerce. New would deposit checks into his

Texas Commerce account drawn against insufficient

funds in Pacheco's Norwest Bank checking account.

Before the normal banking deadlines for return of items

drawn on insufficient funds ran, New would write checks

on the Texas Commerce account for deposit in

Pacheco's Norwest account to cover the overdraft

created [**4] in the Norwest account by the previous

day's checks. Then Pacheco would write additional

checks from the Norwest account for deposit to the

Texas Commerce account to cover the overdraft that

would appear in New's Texas Commerce account. This

scheme had the effect of keeping a group of checks

"floating" in the banking system that were not supported

by real deposits. Norwest discovered this scheme and

stopped payment on all checks drawn from Pacheco's

Norwest account. As a result, several items New

deposited in his Texas Commerce account were

returned. Texas Commerce charged these items as

debits on New's account, resulting in an overdraft that

neither New nor Pacheco covered.

Texas Commerce filed suit against New and Pacheco

for various causes of action, including fraud, breach of

contract, conspiracy to defraud, and violations of the

civil theft statute. 4 When New and Pacheco did not

answer, Texas Commerce filed a motion for default

judgment asking among other relief to be awarded

damages and attorney's fees. This the trial court

granted. And the court of appeals reversed in part.

[**5] The first issue is whether affidavits constitute

evidence as required by Rule 243. That rule provides:

HN1 If the cause of action is unliquidated or be not

proved by an instrument in writing, the court shall hear

evidence as to damages and shall render judgment

therefor, unless the defendant shall demand and be

entitled to a trial by jury in [*517] which case the

judgment by default shall be noted, a writ of inquiry

awarded, and the cause entered on the jury docket. 5

Although several courts of appeals have held that

affidavits can constitute evidence of unliquidated

damages, 6

the court of appeals here held that they

cannot. It concluded that Rule 802 of the Texas Rules of

Evidence, the hearsay rule, prevents the use of affidavits

"because the application of Rule 802 anticipates

opposing counsel's and/or an opposing party's presence

at the hearing to object to such inadmissible hearsay." 7

It further concluded, therefore, that a trial court does not

hold "an evidentiary [**6] hearing merely by accepting

the affidavits attached to [the] motion." 8

The court of appeals is incorrect. HN2 Rule 802 says,

"Inadmissible hearsay admitted without objection shall

not be denied probative value merely because it is

hearsay." 9 HN3 Nothing in rule 802 limits its application

to contested hearings. The rule is not ambiguous and

requires no explication. Consequently we will give it

none. [**7] 10 Because unobjected to hearsay

constitutes probative evidence, it satisfies the

requirement of Rule 243 that there be evidence of

unliquidated damages. The trial court did not err when it

considered the affidavits in rendering its default

3

971 S.W.2d at 713.

4 See TEX. CIV. PRAC. & REM. CODE §§ 134.001-.005.

5

TEX. R. CIV. P. 243 (emphasis added).

6 See, e.g., Irlbeck v. John Deere Co., 714 S.W.2d 54, 57-58 (Tex. App.--Amarillo 1986, writ ref'd n.r.e.); K-Mart Apparel

Fashions Corp. v. Ramsey, 695 S.W.2d 243, 247 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Naficy v. Braker, 642

S.W.2d 282, 285 (Tex. App. --Houston [14th Dist.] 1982, writ ref'd n.r.e.); Angelo v. Champion Restaurant Equip. Co., 702

S.W.2d 209, 211 (Tex. App.--Houston [1st Dist.] 1985), rev'd on other grounds, 713 S.W.2d 96 (Tex. 1986).

7

971 S.W.2d at 714.

8

Id.

9

TEX. CIV. R. EVID. 802; see also Irlbeck, 714 S.W.2d at 57-58 (concluding that Rule 802 provides for hearsay admitted

without objection to support a default judgment for damages and attorney's fees).

10 See Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994).

3 S.W.3d 515, *516; 1999 Tex. LEXIS 105, **5

Page 3 of 4
judgment.

The court of appeals also concluded that the affidavits

here were conclusory and, therefore, not legally

sufficient to support the trial court's award for

unliquidated damages and attorney's fees. 11 Texas

Commerce presented three affidavits at the default

judgment hearing. Two of the affidavits were from Texas

Commerce vice presidents, Thomas Neville and Richard

Bott. Neville explained the details of the check-kiting

scheme and that, as a [**8] result, the Texas Commerce

account had a considerable overdraft balance. Bott

stated that he had reviewed pertinent bank records and

that the Texas Commerce account was overdrawn in

the amount of $ 729,510.96.

HN4 Testimony of the total amount due under a written

instrument is legally sufficient to support an award of

that amount in a default judgment proceeding. 12 Texas

Commerce's bank officers' affidavits aver personal

knowledge of the facts, describe the scheme resulting

in the bank's loss, and identify the total amount owed on

the overdrawn Texas Commerce account. The affidavits

are legally sufficient to support the trial court's damage

award.

[**9] The third affidavit, from Texas Commerce legal

counsel G. Alan Waldrop, was legally sufficient to

support the trial court's attorney's fees award. Waldrop

testified that among other things, Texas Commerce had

a contract with New entitling Texas Commerce to

recover its reasonable attorneys' fee. He further testified

that he is a duly licensed attorney, that he was familiar

with the usual and customary attorney's fees in Travis

County, [*518] and, based on his knowledge of the

services rendered to Texas Commerce on this matter,

which he detailed, $ 30,000 was a reasonable fee for

prosecuting Texas Commerce's claims. This was legally

sufficient to support the trial court's judgment for

attorney's fees. 13

[**10] Accordingly, pursuant to Rule 59.1 of the Texas

Rules of Appellate Procedure, the Court grants the

petition for review of Texas Commerce Bank and,

without hearing oral argument, affirms the court of

appeals' judgment on liability, reverses the judgment on

the issue of damages and attorney's fees, and remands

to the trial court for entry of judgment for Texas

Commerce Bank consistent with this opinion.

Opinion delivered: September 9, 1999

11 971 S.W.2d at 714-15.

12 See Irlbeck, 714 S.W.2d at 57-59. See also, e.g., 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex.App.--Houston

[14th Dist.] 1986, writ ref'd n.r.e.); American 10-Minute Oil Change, Inc. v. Metropolitan Nat'l Bank-Farmers Branch, 783 S.W.2d

598, 601 (Tex. App.--Dallas 1989, no writ).

13 See, e.g., Cap Rock Elec. Coop. v. Texas Utils. Elec. Co., 874 S.W.2d 92, 101-02 (Tex. App.--El Paso 1994, no writ)

(uncontested HN5 affidavit establishing prima facie case for attorney's fees legally sufficient to support attorney's fees award);

Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex. App.--Dallas 1990, no writ).

3 S.W.3d 515, *517; 1999 Tex. LEXIS 105, **7

Page 4 of 4
Page 1 

Caution 

As of: Mar 30, 2015 

JOHN VERBURGT, INDIVIDUALLY AND A/N/F OF THOMAS VERBURGT, 

TIMOTHY VERBURGT AND JOSEPH VERBURGT, PETITIONERS v. PATRICIA M. DORNER AND THE METHODIST MISSION HOME, RESPONDENTS 

No. 96-1026 

SUPREME COURT OF TEXAS 

959 S.W.2d 615; 1997 Tex. LEXIS 124; 41 Tex. Sup. J. 138

April 24, 1997, Argued 

December 4, 1997, Delivered 

PRIOR HISTORY: [**1] ON APPLICATION 

FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS. 

DISPOSITION: Reversed and remanded. 

JUDGES: JUSTICE SPECTOR delivered the opinion of 

the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE GONZALEZ, JUSTICE HECHT, AND JUSTICE 

OWEN join. JUSTICE ENOCH, joined by JUSTICE 

ABBOTT AND JUSTICE HANKINSON, filed a dissenting opinion. JUSTICE BAKER filed a dissenting 

opinion. 

OPINION BY: ROSE SPECTOR 

OPINION 

 [*615] In this case, we decide whether the court of 

appeals erred in dismissing an appeal for want of jurisdiction. The appellant, John Verburgt, filed a cost bond 

on the thirty-fourth day after the trial court rendered 

judgment against him. Verburgt mistakenly believed that 

he had timely complied with Rule 41(a)(1) of the Rules 

of Appellate Procedure in filing the bond and did not 

concurrently move to extend the time to file under Rule 

41(a)(2). 

1

 We hold that a motion for extension of time is 

implied when a party, acting good faith, files a cost bond 

within the fifteen-day period in which Rule 41(a)(2)

permits parties to file a motion to extend. We therefore 

reverse the judgment of the court of appeals and remand 

to that court. 

1 The Texas Rules of Appellate Procedure 

were renumbered and substantially revised on 

September 1, 1997. See 60 TEX. B.J. 876 (1997). 

All references to the Rules of Appellate Procedure in this opinion are to the rules in effect before that date. 

 [**2] Verburgt, in his individual capacity and as

his children's next friend, sued Constance Clear, Patricia 

Dorner, and the Methodist Mission Home for intentional 

infliction of emotional distress and negligent interference 

with familial relationships. After Verburgt nonsuited 

Clear, the trial court granted summary judgment for the 

remaining defendants. The judgment was signed on October 10, 1995. Because no motion for new trial was

filed, Verburgt's cost bond was due within thirty days, by 

November 9th. See TEX. R. APP. P. 41(a)(1). 

2

 Verburgt 

did not file the [*616] bond until November 13th, nor 

did he file a motion to extend the time to file the bond 

within fifteen days of the bond's due date. See TEX. R. 

APP. P. 41(a)(2). 

3

 

2 Rule 41(a)(1) provides: 

 

 When security for costs on appeal is required, the bond or affi-
Page 2 

959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 

41 Tex. Sup. J. 138 

davit in lieu thereof shall be filed 

with the clerk within thirty days 

after the judgment is signed, or, 

within ninety days after the judgment is signed if a timely motion 

for new trial has been filed by any 

party or if any party has timely 

filed a request for findings of fact 

and conclusions of law in a case 

tried without a jury. If a deposit of 

cash is made in lieu of bond, the 

same shall be made within the 

same period. 

 

 [**3] 

3 Rule 41(a)(2) provides: 

 

 An extension of time may be 

granted by the appellate court for 

late filing of a cost bond or notice 

of appeal or making the deposit 

required by paragraph (a)(1) or for 

filing the affidavit, if such bond or 

notice of appeal is filed, deposit is 

made, or affidavit is filed not later 

than fifteen days after the last day 

allowed and, within the same period, a motion is filed in the appellate court reasonably explaining 

the need for such extension. If a 

contest to an affidavit in lieu of 

bond is sustained, the time for filing the bond is extended until ten 

days after the contest is sustained 

unless the trial court finds and recites that the affidavit is not filed 

in good faith. 

 

Several weeks later, the court of appeals ordered 

Verburgt to show cause why it should not dismiss his 

appeal for lack of jurisdiction. Verburgt's response 

demonstrated that his counsel had simply miscalculated 

the date the bond was due. See Verburgt v. Dorner, 928 

S.W.2d 654, 655 (Tex. 1996). Initially, the court of appeals decided to retain jurisdiction of Verburgt's appeal. 

But [**4] on rehearing en banc, the court reversed itself. 

The court of appeals in this case recognized the "patent unfairness" of the result it reached: 

 

 We are, therefore, confronted with the 

question of whether the appellate rules 

condone a result that allows a litigant who 

knows he is late with his bond to save his 

appeal, but rejects the appeal of the litigant who erroneously, but in good faith, 

believes he has timely filed his bond and, 

thus satisfied, also believes he has no 

need to file for an extension of time. 

 

Id. Although it acknowledged the arbitrariness of dismissal under these circumstances, the court of appeals 

nevertheless believed that the interest in finality of 

judgments outweighed the policy of disposing of appeals 

on their merits. Id. at 656. 

In dismissing Verburgt's appeal, the appellate court 

also relied largely upon a decision by the Court of Criminal Appeals, Olivo v. State, 918 S.W.2d 519 (Tex. Crim. 

App. 1996). But the Court of Criminal Appeals itself 

recognized in Olivo that its approach to the perfection of 

appeals in criminal cases has differed significantly from 

our more liberal approach. See Olivo, 918 S.W.2d at 

524-525; [**5] compare Jones v. State, 796 S.W.2d 

183, 186-87 (Tex. Crim. App. 1990) (holding that Rule 

83 of the Texas Rules of Appellate Procedure did not 

entitle appellant who filed defective notice of appeal to 

amend notice beyond the time allowed by Rule 41(a)(2)

when the appellant had not requested an extension of 

time under Rule 41(b)(2)) with Grand Prairie Indep. Sch. 

Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 

500 (Tex. 1991) (holding that an appellate court may not 

dismiss an appeal when the appellant filed the wrong 

instrument required to perfect the appeal without giving 

the appellant an opportunity to correct the error). 

This Court has never wavered from the principle that 

appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of 

the Rules of Appellate Procedure would preserve the

appeal. We have repeatedly held that a court of appeals 

has jurisdiction over any appeal in which the appellant 

files an instrument in a bona fide attempt to invoke the 

appellate court's jurisdiction. Linwood v. NCNB Texas, 

885 S.W.2d 102, 103 (Tex. 1994); Grand Prairie Indep. 

Sch. Dist., 813 S.W.2d at 500. Our decisions reflect [**6] 

the policy embodied in our appellate rules that disfavors 

disposing of appeals based upon harmless procedural

defects. 4 See Grand Prairie Indep. Sch. Dist., 813 

S.W.2d at 500. Thus, we have instructed the courts of 

appeals to construe the Rules of Appellate Procedure 

reasonably, yet liberally, so that the [*617] right to 

appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. See 

Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); 

see also Crown Life Ins. Co. v. Estate of Gonzalez, 820 

S.W.2d 121, 121-22 (Tex. 1991); Gay v. City of Hillsbo-
Page 3 

959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 

41 Tex. Sup. J. 138 

ro, 545 S.W.2d 765, 766 (Tex. 1977). As the dissenting 

justice in the court of appeals pointed out, the result the 

court of appeals reached was not "absolutely necessary" 

under these facts. Verburgt, 928 S.W.2d at 657 (Duncan, J., dissenting) ("The issue is not whether the rules 

condone a patently unfair result but whether they require

it.") (emphasis in original). Here, the court of appeals 

acknowledged that Verburgt demonstrated that he had

made a bona fide attempt to timely perfect an appeal. See 

Verburgt, 928 S.W.2d at 655. 

4 Under Rule 46(f), on motion to dismiss an 

appeal for a defect in form or substance in any 

bond, "the appellate court may allow the filing of 

a new bond or the making of a new deposit in the 

trial court on such terms as the appellate court 

may prescribe." Rule 83 provides that "[a] judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities, in appellate procedure, either of form or substance, 

without allowing a reasonable time to correct or 

amend such defects or irregularities . . . ." 

 [**7] We hold that a motion for extension of time

is necessarily implied when an appellant acting in good 

faith files a bond beyond the time allowed by Rule 

41(a)(1), but within the fifteen-day period in which the 

appellant would be entitled to move to extend the filing 

deadline under Rule 41(a)(2). Our holding does not indefinitely extend the time in which parties may perfect 

an appeal, as Justice Enoch implies. Instead, once the 

period for granting a motion for extension of time under 

Rule 41(a)(2) has passed, a party can no longer invoke 

the appellate court's jurisdiction. It also does not alter the 

time for perfecting an appeal beyond the period authorized by Rule 41(a). Nor does our holding undermine finality of judgments, as the court of appeals believed. See

928 S.W.2d at 656. Parties who prevail in the trial court 

will still know within the time specified in Rule 41(a)(2)

whether their opponents will seek to perfect an appeal. 

We decline to elevate form over substance, as the dissenters would. 

Accordingly, we reverse the judgment of the court 

of appeals and remand to that court to allow it to determine whether Verburgt offered a reasonable explanation 

for his failure to timely [**8] file his bond. See TEX. R. 

APP. 41(a)(2). 5

 

5 The Texas Supreme Court cases cited by the 

dissenters are distinguishable from this case. In 

Davies v. Massey, 561 S.W.2d 799, 800 (Tex. 

1978), the appellant mailed his cost bond a day 

before it was due, but the bond was received 

eight days late. We held that the appellant timely 

perfected his appeal under Rule 5 of the Texas 

Rules of Civil Procedure. Id. at 801. It presents 

no inconsistency with this case. Glidden Company v. Aetna Casualty & Surety Company, 155 

Tex. 591, 291 S.W.2d 315, 317 (Tex. 1956), was a 

1956 case in which the Court held that the court 

of appeals should have dismissed an appeal in 

which the appellant filed its bond one day late. At

the time we decided Glidden, the rules allowed 

for no extension of time to file a cost bond, regardless of good cause. See Glidden, 291 S.W.2d 

at 318 ("It is well settled, that the requirement 

that the bond be filed within thirty days is mandatory and jurisdictional, and that the time prescribed cannot be dispensed with or enlarged by 

the court for any reason."). We disapprove of 

Miller v. Miller, 848 S.W.2d 344 (Tex. 

App.--Texarkana 1993, no writ), El Paso 

Sharky's Billiard Parlor, Inc. v. Amparan, 831 

S.W.2d 3 (Tex. App.--El Paso 1992, writ denied), 

and any other authorities in which the court of 

appeals has dismissed an appeal when the appellant has made a bona fide attempt to invoke the 

appellate court's jurisdiction by filing a bond 

within the fifteen days of the date the bond was 

due. 

 [**9] Rose Spector 

Justice 

OPINION DELIVERED: December 4, 1997 

DISSENT BY: Craig T. Enoch James A. Baker 

DISSENT 

JUSTICE ENOCH, joined by JUSTICE ABBOTT 

AND JUSTICE HANKINSON, dissenting. 

From today forward, one need no longer timely appeal to invoke an appellate court's jurisdiction. But just 

two months ago, this Court retained the longstanding rule 

that only a timely filed appeal invokes appellate jurisdiction. 1

 We insisted that to perfect appeal in a civil case, 

the notice of appeal must be filed within the time prescribed in the rules. See TEX. R. APP. P. 26.1. Further, 

we insisted that to extend the time in which to file the 

notice of appeal, one must file not only the notice of appeal, but in addition "a motion" that "must state: . . 

.[among other things] the facts relied on to reasonably 

explain the need for an extension." TEX. R. APP. P. 26.3, 

10.5(b)(1)(C). 

Like our new rules, the plain language of the rule 

that applies to this case, Rule 41(a)(2), mandates that the 

appeal be timely; consequently, it compels the result the 

court of appeals reached in this [*618] case. Is this a 

bad result? For the hopeful appellant, [**10] perhaps 
Page 4 

959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 

41 Tex. Sup. J. 138 

(assuming that the appeal is, in fact, meritorious). But 

denuding the Court's rules to achieve the Court's chosen 

result is bad law. I dissent. 

1 In addition, we specifically stated that while 

other appellate rules may be suspended from time 

to time for good cause, "an appellate court may . .

. not . . . alter the time for perfecting an appeal in 

a civil case." TEX. R. APP. P. 2 (emphasis added). 

Rule 41(a)(2) permits a party who fails to timely 

appeal to seek an extension of time. But to do so, the 

party has to file, within fifteen days of the original due 

date, both the cost bond and a motion for extension of 

time reasonably explaining the need for the extension. 

The majority's holding, that an "implicit motion" is filed 

if a would-be appellant files late and files only a cost 

bond, Verburgt v. Dorner, 959 S.W.2d 615 (1997), 

simply ignores the rule's requirement that both instruments must be filed. Moreover, Rule 41(a)(2) gives the 

court of appeals discretion whether to allow [**11] an 

extension of time, but this discretion is triggered only by 

the filing of a motion reasonably explaining the need for 

the extension. In the absence of a motion, the court of 

appeals' discretion is never invoked and the late-filed 

cost bond has no effect. Here, Verburgt did not file a 

motion to extend time, and he did not file the cost bond 

timely. He simply did not do what Rule 41(a)(2) clearly 

requires. 

The Court does not cite a single case holding that the 

untimely filing of an appeal can still be a bona fide attempt to invoke the court of appeals' jurisdiction. To the 

contrary, we have consistently and routinely held that the 

appeal must be filed timely. See Davies v. Massey, 561 

S.W.2d 799, 801 (Tex. 1978) ("Filing a cost bond . . . is a 

necessary and jurisdictional step in perfecting an appeal."); Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. 

591, 291 S.W.2d 315, 318 (Tex. 1956) ("It is well settled 

. . . that the requirement that the bond be filed within 

thirty days is mandatory and jurisdictional."). Indeed, the 

court of appeals' decision in this case is predicated on 

this crucial point: 

 

 While the supreme court has liberally 

construed the rules regarding [**12] the 

instruments necessary to confer jurisdiction, we do not discern a retreat in that 

court from the fundamental requirement 

that in order to invoke the jurisdiction of 

the court of appeals, some instrument, 

whether or not it is the correct instrument, 

must be timely filed. 

 

Verburgt, 928 S.W.2d at 656 (explaining two decisions 

on which the Court relies today: Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994) and Grand Prairie 

Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 

S.W.2d 499, 500 (Tex. 1991)); see also Olivo v. State, 

918 S.W.2d 519, 524 (Tex. Crim. App. 1996) (correctly 

noting that the "liberal policy" espoused by this Court in 

Linwood and Grand Prairie "concerns the substitution of 

a correct instrument for an incorrect instrument, which 

has been timely filed"). 

I agree with the majority that "appellate courts 

should not dismiss an appeal for a procedural defect 

whenever any arguable interpretation of the Rules of 

Appellate Procedure would preserve the appeal ." Verburgt v. Dorner, 959 S.W.2d 615, 616 (1997) (emphasis 

added)(citing Linwood and Grand Prairie). 2

 But surely 

that interpretation must be [**13] arguable. Interpreting Rule 41(a)(2) in contradiction to its plain language is 

not arguable; indeed, it is remarkably harmful to the 

concept of justice. 

2 In fact, the thrust of our new rules is to eliminate the procedural traps often encountered under our former rules. See Nathan L. Hecht & E. 

Lee Parsley, Procedural Reform: Whence and 

Whither, in MATTHEW BENDER C.L.E., 

PRACTICING LAW UNDER THE NEW 

RULES OF TRIAL AND APPELLATE PROCEDURE 1-12 (Nov. 1997) (explaining that the 

1997 revisions to the rules of appellate procedure 

"are meant to take the traps out of TRAP"). In its 

understandable zeal to get rid of "traps," however, the majority unfortunately has lost sight of the 

significant concept of timeliness as a prerequisite

to proper invocation of the court of appeals' jurisdiction. As indicated above, even the new rules of 

appellate procedure require, as they must, that a 

party must be timely to invoke the court of appeals' jurisdiction. 

Under any number of circumstances, time plays a 

critical [**14] role in justice. For example, statutes of 

limitation and repose exist to ensure that claims are made 

in a timely fashion. See, e.g., Trinity River Auth. v. 

URS Consultants, Inc., 889 S.W.2d 259, 263 (Tex. 1994)

("We start with the unassailable premise that statutes of 

limitation, in general, serve a public function. They 

compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity 

to defend while witnesses [*619] are available and the 

evidence is fresh in their minds.'") (quoting Robinson v. 

Weaver, 550 S.W.2d 18, 20 (Tex. 1977)). Timely exercise 

of one's appellate rights is no less significant to predictability, and consequently, to justice. Failure to timely file 

an appeal has always been a jurisdictional error that pre-
Page 5 

959 S.W.2d 615, *; 1997 Tex. LEXIS 124, **; 

41 Tex. Sup. J. 138 

cludes an appellate court from reaching the merits. See 

Davies, 561 S.W.2d at 801; Glidden, 291 S.W.2d at 318. 

It rightfully should remain so. 

The majority's flawed reasoning is also apparent 

from the cases it cites. In Linwood and Grand Prairie,

we held that a party's bona fide attempt to invoke the 

appellate court's jurisdiction will preserve its appeal. 

What is [**15] clearly apparent in these opinions is that 

the procedural defect, which rendered the party's effort at 

appeal only a bona fide attempt, was correctable. Concomitantly, the hopeful appellant had the obligation to 

correct this defect. But how would one correct untimeliness? One can't. Neither of these cases remotely signals a 

retreat from the principle that a party must timely appeal 

to invoke the court's jurisdiction. 

The majority responds to my criticism by claiming 

that its decision "does not indefinitely extend the time in 

which parties may perfect an appeal" because parties 

supposedly "will still know within the time specified in 

Rule 41(a)(2) whether their opponents will seek to perfect an appeal." ___ S.W.2d at ___. My colleagues 

demonstrate that they do not understand what they do. 

The "indefiniteness" has nothing to do with not knowing 

whether an appeal will be filed within thirty days or forty-five days. It has everything to do with not knowing 

when the Court will simply "imply" a condition that

never occurred to reach the result it prefers. When next 

will the Court "imply" filings that were never made? If 

the clear language of its own rules does not constrain the 

[**16] Court, then what will? If this is not "indefinite," 

then perhaps I do not understand the meaning of the

word. 

Finally, the majority mistakenly believes that ignoring its own rules somehow enhances "fairness." Playing 

by the rules is fair. Changing the rules to produce a particular result is not. 

The judgment of the court of appeals should be affirmed. I dissent. 3

 

3 Like Justice Baker, I also dissent to Verburgt's companion cases. See Harlan v. Howe 

State Bank, 958 S.W.2d 380 (Tex. 1997); Holmes 

v. Home State County Ins., 958 S.W.2d 381 (Tex. 

1997); Boyd v. American Indem. Co., 958 S.W.2d 

379 (Tex. 1997) (Justice Hankinson, who joins 

me in this dissent, is not sitting in Boyd, and 

therefore joins this footnote only as it relates to

Harlan and Holmes). 

Craig T. Enoch, 

Justice 

OPINION DELIVERED: December 4, 1997 JUSTICE BAKER, dissenting. 

The court of appeals reached the decision required 

by applying the plain and unambiguous language of Rule 

41(a)(2). See TEX. R. [**17] APP. P. 41(a)(1) and 

(2); Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978); 

Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. 591, 291 

S.W.2d 315, 318 (Tex. 1956); see also Miller v. Miller, 

848 S.W.2d 344, 345 (Tex. App.--Texarkana 1993, no 

writ); El Paso Sharky's Billiard Parlor, Inc. v. Amparan, 

831 S.W.2d 3, 5 (Tex. App.--El Paso 1992, writ denied). 

The Court's opinion dispenses with Rule 41(a)(2)'s 

requirements, and amends the rule by judicial fiat. The 

Court's opinion is contrary to its own precedent. See 

State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 

(Tex. 1992)( "We do not revise our rules by opinion."); 

Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex 

1992)(same). I would deny the writ 1

 . Because the Court 

decides otherwise, I dissent. 

1 I also dissent to Verburgt's companion cases. 

See Boyd v. American Indem. Co., 958 S.W.2d 

379 (Tex. 1997); Harlan v. Howe State Bank, 958 

S.W.2d 380 (Tex. 1997); Holmes v. Home State 

County Ins., 958 S.W.2d 381 (Tex. 1997). 

 [**18] James A. Baker, 

Justice 

OPINION DELIVERED: December 4, 1997 
| | Positive

As of: April 7, 2015 6:05 PM EDT

Whitaker v. Rose

Court of Appeals of Texas, Fourteenth District, Houston

February 6, 2007, Judgment Rendered ; February 6, 2007, Opinion Filed

NO. 14-04-01178-CV

Reporter

218 S.W.3d 216; 2007 Tex. App. LEXIS 842

MARCUS DUNTE WHITAKER, Appellant v. LOIS

ROSE, JOHN ROSE, JR., and JOHN ROSE, III,

Appellees

Prior History: [**1] On Appeal from the County Court

at Law No. 1. Harris County, Texas. Trial Court Cause

No. 805,739.

Disposition: Affirmed in Part and Reversed and

Remanded in Part.

Core Terms

damages, default judgment, trial court, elements of

damages, mental anguish, unliquidated damages,

medical care, no evidence, no-answer, amounts,

awarding damages, pet, pain and suffering, medical

expenses, new trial, causal nexus, total damage, lost

wages, default, pain

Case Summary

Procedural Posture

Appellant family members sued appellee driver for

injuries sustained in an automobile accident. The driver

was properly served but failed to answer. The County

Court at Law No. 1 of Harris County, Texas, granted the

family's motion for default judgment, and entered the

default judgment based upon documentary evidence

supplied by the family regarding their damages. The

driver filed a restricted appeal.

Overview

In his restricted appeal, the driver alleged three grounds

for setting aside the default judgment and granting a

new trial: (1) no reporter's record was made at the

default judgment hearing; (2) the family members failed

to prove their damages; and (3) the judgment failed to

distinguish between reversible and non-reversible

damages. The appellate court found that because the

family members provided the trial court with affidavits in

support of their damages, the lack of a reporter's record

did not constitute error. However, because the doctors'

reports submitted by the family members were

statements of facts about the medical care they

received, but were not under oath, they did not satisfy

the affidavit requirement of Tex. Civ. Prac. & Rem. Code

Ann. § 18.001 (1997). And because the trial court did

not specify the damage elements it was awarding in its

judgment, and the record did not provide any means for

distinguishing the amounts awarded for each element

of damage, the appellate court could not determine

whether the trial court awarded damages based on the

elements as to which there was no evidence. Thus, all

of the damage awards had to be reversed.

Outcome

The trial court's judgment as to liability was affirmed. All

of the damage awards were reversed and remanded for

a new trial on the issue of damages.

LexisNexis® Headnotes

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

HN1 A restricted appeal constitutes a direct attack on a

default judgment. Tex. R. App. P. 30. A restricted appeal

must: (1) be brought within six months after the trial

court signs the judgment; (2) by a party to the suit; (3)

who did not participate in the actual trial; and (4) the

error complained of must be apparent from the face of

the record.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

Civil Procedure >Appeals > Standards of Review > General

Overview
HN2 Because a restricted appeal affords an appellant

the same scope of review as an ordinary appeal, the

legal and factual sufficiency of the evidence to support

the judgment may be challenged.

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

Civil Procedure > Remedies > Damages > General

Overview

HN3 When a no-answer default judgment is entered,

the non-answering party is deemed to have admitted all

facts properly pleaded. However, this presumption does

not apply to unliquidated damages. A plaintiff alleging

unliquidated damages must present competent

evidence that is consistent with the cause of action

pled. Tex. R. Civ. P. 243.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

Civil Procedure > Remedies > Damages > General

Overview

HN4 One area where no-answer and post-answer

default judgments differ greatly is what is considered

admitted because of the default. In a post-answer

default judgment, the defendant has filed an answer

with the trial court, and the defendant does not abandon

that answer or confess any issues because the

defendant fails to pursue the remainder of the trial. The

plaintiff must offer evidence and prove the entire case,

including liability and damages. Thus, the lack of a

reporter's record in a post-answer default judgment

requires reversal. Such is not the case in a no-answer

default judgment.

Civil Procedure > ... > Default & Default Judgments >

Default Judgments > Entry of Default Judgments

Civil Procedure > Remedies > Damages > General

Overview

HN5 In a no-answer default context, judgment can be

entered on the pleadings alone, and all facts properly

pled are deemed admitted. While the plaintiffs must

produce evidence of damages before a trial court may

order a default judgment, those damages need not be

presented with testimony. A trial court may award

damages in a no-answer default judgment case based

on affidavits. For liquidated damages, a trial court can

render a default judgment if it can verify the damages by

referring to the allegations in the petition and the written

instruments. Tex. R. Civ. P. 241. For unliquidated

damages, however, the trial court must hear evidence

as to damages, but affidavits will satisfy the evidence

requirement of Tex. R. Civ. P. 243.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

Civil Procedure > Remedies > Damages > General

Overview

Civil Procedure >Appeals > Standards of Review > General

Overview

HN6 The legal and factual sufficiency of the evidence to

support an award of unliquidated damages may be

challenged on appeal from a no-answer default

judgment. Where a specific attack is made upon the

sufficiency of the evidence to support the trial court's

determination of damages in a default judgment, the

appellate court must review the evidence produced.

Civil Procedure >Appeals > Standards of Review > General

Overview

HN7 The appellate court will sustain a legal sufficiency

or "no evidence" 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 establishes conclusively

the opposite of the vital fact. The appellate court

considers the evidence in the light most favorable to the

verdict and indulges every reasonable inference that

supports it. The evidence is legally sufficient if it would

enable reasonable and fair-minded people to reach the

verdict under review. The appellate court credits

favorable evidence if reasonable jurors could, and

disregards contrary evidence unless reasonable jurors

could not. In reviewing a factual sufficiency challenge,

the appellate court examines all the evidence. The

appellate court will reverse only if the finding is against

the great weight and preponderance of the evidence.

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Torts > ... > Compensatory Damages > Types of Losses >

Medical Expenses

Torts > Remedies > Damages > Proof

HN8 A claim for past medical expenses must be

supported by evidence that such expenses were

reasonable and necessary as a result of the injury. A

default judgment does not relieve a plaintiff of this

218 S.W.3d 216, *216; 2007 Tex. App. LEXIS 842, **1

Page 2 of 7
burden. A plaintiff can prove reasonableness and

necessity of past medical expenses through: (1) expert

testimony on the issues of reasonableness and

necessity; or (2) an affidavit prepared and filed in

compliance with Tex. Civ. Prac. & Rem. Code Ann. §

18.001 (1997).

Torts > Remedies > Damages > Proof

HN9 See Tex. Civ. Prac. & Rem. Code Ann. § 18.001

(1997).

Civil Procedure > Trials > Evidence & Testimony >

Depositions

Evidence > Types of Evidence > Documentary Evidence >

General Overview

HN10 An affidavit is a statement of facts sworn to as the

truth before an officer authorized to administer oaths.

Tex. Gov't Code Ann. § 312.011(1) (2005).

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Relief From Default

Civil Procedure > Remedies > Damages > General

Overview

HN11 If a default judgment makes a single damage

award based on more than one damage element, and if

there is no evidence to support the award as to one of

the elements upon which the award is based, then the

appellate court must reverse and remand as to the

entire award, even though one of the other elements

might be sufficient to support the award.

Counsel: For APPELLANTS: Jason Andrew Powers,

Houston, TX.

For APPELLEES: Melvin L. Lampley, Houston, TX.

Judges: Panel consists of JusticesAnderson, Edelman,

and Frost.

Opinion by: John S. Anderson

Opinion

[*219] This is a restricted appeal from a no-answer

default judgment. Appellees, Lois Rose, John Rose, Jr.,

and John Rose, III ("the Roses"), sued appellant,

Marcus Dunte Whitaker ("Whitaker"), for damages

resulting from a car accident. Whitaker raises three

issues on appeal. We affirm in part and reverse and

remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2003, Lois Rose ("Lois") drove her car

with her son, John Rose, III ("John, III"), as a passenger.

As she entered an intersection, her car was struck by

Marcus Dunte Whitaker's vehicle. Whitaker's vehicle hit

the Roses' vehicle on the driver's side after running a

stop sign. Later that evening, Lois and John, III

experienced pain and needed medical attention. The

next day, Lois's husband, John Rose, Jr. ("John, Jr.")

took his wife and son to a family clinic where they were

examined. The doctor prescribed physical therapy and

pain medication for both Lois and John, III. Lois [**2]

was unable to drive and did not return to work for 30

days. John, Jr. sought and received time off from work

for approximately two and a half weeks in order to take

care of his wife and son at home.

The Roses filed their original petition against Whitaker

on November 20, 2003. Whitaker was properly served

but failed to answer. The Roses moved for default

judgment, and the trial court granted their motion. The

trial court set a date to hear evidence of damages, but

instead, it entered the default judgment based upon

documentary evidence supplied by the Roses: Lois's

affidavit and supporting documents, including her lost

wages report and medical records for herself and John,

III; and John, Jr.'s affidavit and supporting documents,

including his lost wages report. The trial court entered

the default judgment in the precise amounts requested

by the Roses in their affidavits. Whitaker did not file any

post-judgment motions, but he did file a restricted appeal

one day prior to the six-month filing deadline.

DISCUSSION

In his restricted appeal, Whitaker alleges three grounds

for setting aside the default judgment and granting a

new trial: (1) no reporter's record was made at the [**3]

default judgment hearing; (2) appellees failed to prove

their damages; and (3) the judgment fails to distinguish

between reversible and non-reversible damages.

I. Standard of Review

HN1 A restricted appeal constitutes a direct attack on a

default judgment. TEX. R. APP. P. 30; Gen. Elec. Co. v.

Falcon Ridge Apartments Joint Venture, 811 S.W.2d

942, 943 (Tex. 1991). A restricted appeal must (1) be

brought within six months after the trial court signs the

218 S.W.3d 216, *216; 2007 Tex. App. LEXIS 842, **1

Page 3 of 7
judgment, (2) by a party to the suit, (3) who did not

participate in the actual trial, and (4) the error

complained of must be apparent from the face of the

record. See TEX. R. APP. P. 30; Norman Commc'ns v.

Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).

Both parties agree Whitaker has met the first three

elements. Therefore, this appeal considers whether the

issues raised by Whitaker are apparent on the face

[*220] of the record. The face of the record includes all

papers on file in the appeal. Norman Commc'ns, 955

S.W.2d at 270. HN2 Because a restricted appeal affords

an appellant the same scope of review as an ordinary

appeal, [**4] the legal and factual sufficiency of the

evidence to support the judgment may be challenged.

HN3 When a no-answer default judgment is entered,

the non-answering party is deemed to have admitted all

facts properly pleaded. Morgan v. Compugraphic Corp.,

675 S.W.2d 729, 732 (Tex. 1984); Jackson v. Gutierrez,

77 S.W.3d 898, 901 (Tex. App.--Houston [14th Dist.]

2002, no pet.). However, this presumption does not

apply to unliquidated damages. Tex. Commerce Bank,

N.A. v. New, 3 S.W.3d 515, 516 (Tex. 1999); Novosad v.

Cunningham, 38 S.W.3d 767, 773 (Tex. App.--Houston

[14th Dist.] 2001, no pet.).A plaintiff alleging unliquidated

damages must present competent evidence that is

consistent with the cause of action pled. TEX. R. CIV. P.

243; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,

83 (Tex. 1992).

II. No Reporter's Record

In his first issue, Whitaker contends he is entitled to a

new trial because the Roses failed to ensure a reporter's

record was produced from a default judgment hearing.

Whitaker argues a reporter's record is required for a

no-answer default [**5] judgment, as it is required for a

post-answer default judgment. This contention is

incorrect.

HN4 One area where no-answer and post-answer

default judgments differ greatly is what is considered

admitted because of the default. In a post-answer

default judgment, the defendant has filed an answer

with the trial court, and the defendant does not abandon

that answer or confess any issues because the

defendant fails to pursue the remainder of the trial. See

Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979);

In re K.B.A., 145 S.W.3d 685, 690 (Tex. App.--Fort

Worth 2004, no pet.). The plaintiff must offer evidence

and prove the entire case, including liability and

damages. See Stoner, 578 S.W.2d at 682; Armstrong v.

Benavides, 180 S.W.3d 359, 362 (Tex. App.--Dallas

2005, no pet.). Thus, the lack of a reporter's record in a

post-answer default judgment requires reversal. Carstar

Collision, Inc. v. Mercury Finance Co., 23 S.W.3d 368,

370 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).

Such is not the case in a no-answer default judgment.

HN5 In a no-answer default context, judgment can be

entered on the pleadings [**6] alone, and all facts

properly pled are deemed admitted. Morgan, 675

S.W.2d at 732. While plaintiffs must produce evidence

of damages before a trial court may order a default

judgment, those damages need not be presented with

testimony. A trial court may award damages in a

no-answer default judgment case based on affidavits.

Tex. Commerce Bank, 3 S.W.3d at 517; Naficy v. Braker,

642 S.W.2d 282, 285 (Tex. App.--Houston [14th Dist.]

1982, writ ref'd n.r.e.). For liquidated damages, a trial

court can render a default judgment if it can verify the

damages by referring to the allegations in the petition

and the written instruments. TEX. R. CIV. P. 241; BLS

Limousine Servs, Inc. v. Buslease, Inc., 680 S.W.2d

543, 547 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). For

unliquidated damages, however, the trial court must

hear evidence as to damages, but affidavits will satisfy

the evidence requirement of Texas Rule of Civil

Procedure 243. See TEX. R. CIV. P. 243; Tex.

Commerce Bank, 3 S.W.3d at 516-17. Because the

Roses provided the [**7] trial court with affidavits in

support of their damages, the lack of a reporter's record

in an appeal from a no-answer default judgment does

[*221] not constitute error on the face of the record. We

overrule Whitaker's first issue.

Damages Awards

In Whitaker's second issue, he attacks several aspects

of the Roses' damage award. He first contends the

Roses did not prove liability 1

and causation. He next

contends the evidence of the Roses' damages is legally

and factually insufficient. In his third issue, Whitaker

asserts he is entitled to a new trial because the judgment

of the trial court fails to distinguish between reversible

and non-reversible damages.

1 Whitaker may not challenge liability here because, in a default context, the causal nexus between the conduct of the

defendant and the event sued upon is admitted by default. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984).

However, the causal nexus between the event sued upon and the plaintiff's alleged injuries is not admitted by default, and "proof

of this causal nexus is necessary to ascertain the amount of damages to which the plaintiff is entitled." Id.

218 S.W.3d 216, *219; 2007 Tex. App. LEXIS 842, **3

Page 4 of 7
[**8] A. Evidence of Damages

HN6 The legal and factual sufficiency of the evidence to

support an award of unliquidated damages may be

challenged on appeal from a no-answer default

judgment. Argyle Mech., Inc. v. Unigus Steel, Inc., 156

S.W.3d 685, 687 (Tex. App.--Dallas 2005, no pet.).

Where a specific attack is made upon the sufficiency of

the evidence to support the trial court's determination of

damages in a default judgment, the appellate court

must review the evidence produced. Dawson v. Briggs,

107 S.W.3d 739, 751 (Tex. App.--Houston [1st Dist.]

2003, no pet.).

HN7 We will sustain a legal sufficiency or "no evidence"

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 establishes conclusively the opposite

of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802,

810 (Tex. 2005). We consider the evidence in the light

most favorable to the verdict and indulge every

reasonable inference [**9] that supports it. Id. at 821-22.

The evidence is legally sufficient if it would enable

reasonable and fair-minded people to reach the verdict

under review. Id. at 827. We credit favorable evidence if

reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not. See id. In

reviewing a factual sufficiency challenge, we examine

all the evidence. Castanon v. Monsevais, 703 S.W.2d

295, 297 (Tex. App.--San Antonio 1985, no writ). We will

reverse only if the finding is against the great weight and

preponderance of the evidence. Id.

In the Roses' petition, Lois sought to recover the

following damages:

(1) reasonable and necessary medical care in

the past,

(2) reasonable and necessary medical care in

the future,

(3) past physical pain and suffering,

(4) future physical pain and suffering,

(5) past physical impairment,

(6) physical impairment which, in all reasonable

probability, will be suffered in the future,

(7) past lost earnings,

(8) lost earnings which, in all reasonable

probability, will be suffered in the future,

(9) past loss of consortium,

(10) [**10] past loss of household services,

(11) past mental anguish, and

[*222] (12) future mental anguish.

Except for items (7) - (10) above, John, III asserted the

same elements of damages as Lois. John, Jr. sought

only to recover the following damages:

(1) past lost earnings,

(2) past loss of consortium,

(3) reasonable and necessary medical care in

the past, and

(4) reasonable and necessary medical care in

the future.

Though properly served with process, Whitaker did not

answer the Roses' suit. The Roses moved for default

judgment, and the trial court granted their motion. The

trial court did not hold an evidentiary hearing regarding

unliquidated damages, but instead, it rendered the

default judgment based upon documentary evidence

supplied by the Roses. In Lois's affidavit, she testified

that she had suffered the following alleged damages:

(1) past medical expenses totaling $ 2,994.65, (2) pain

and suffering, mental anguish, and emotional distress

in the amount of $ 6,000, and (3) lost wages in the

amount of $ 2,653.84. Even though the total of these

amounts exceeds $ 11,000, Lois also testified in her

affidavit as follows: "My total damages when combined

with inconvenience [**11] is $ 9,000."

Lois also testified in her affidavit as to the following

alleged damages for John, III: (1) past medical expenses

totaling $ 2,043.65 and (2) John, III's pain and suffering,

mental anguish, and emotional distress in the amount

of $ 4,000. Lois further testified that John, III "was

inconvenienced because he was unable to carry on the

usual and normal activities of a 14 year old student."

Even though the total of the damages for John, III

mentioned by Lois is $ 6,043.65, Lois stated in her

affidavit that "[John, III's] total damages when combined

with inconvenience is $ 6,500."

In his affidavit, John, Jr. stated that he suffered lost

wages of $ 1,429.60 and that his "total damages when

combined with inconvenience is $ 4,500."

218 S.W.3d 216, *221; 2007 Tex. App. LEXIS 842, **8

Page 5 of 7
The trial court rendered the default judgment in the

precise amounts of "total damages" requested by Lois

and John, Jr. in their affidavits--$ 9,000 for Lois, $ 6,500

for John, III, and $ 4,500 for John, Jr. The trial court did

not specify the elements of damages upon which it

based these awards, and the record does not provide

any means for determining the elements of damages

upon which the trial court relied. The affidavits provide

no basis for [**12] distinguishing the elements of

damages awarded by the trial court because, as noted

above, the "total damages" requested by each of the

Roses does not equal the sum of the amounts requested

for specific elements of damages in the affidavits. 2

Therefore, neither the trial court's judgment, nor the

affidavits of Lois and John, Jr. provide any means of

distinguishing the amounts awarded by the trial court

for specific elements of damages. Whitaker also

contends the Roses' evidence of medical expenses

does [*223] not comply with the affidavit requirement of

section 18.001 of the Texas Civil Practices and

Remedies Code, and in the absence of comporting

affidavits, they are required to use expert testimony to

prove their medical expenses were reasonable and

necessary. Whitaker is correct. HN8 A claim for past

medical expenses must be supported by evidence that

such expenses were reasonable and necessary as a

result of the injury. See Texarkana Mem'l Hosp., Inc. v.

Murdock, 946 S.W.2d 836, 840 (Tex. 1997). A default

judgment does not relieve a plaintiff of this burden.

Jackson, 77 S.W.3d at 902-03. A plaintiff can prove

reasonableness [**13] and necessity of past medical

expenses through (1) expert testimony on the issues of

reasonableness and necessity or (2) an affidavit

prepared and filed in compliance with section 18.001 of

the Texas Civil Practice and Remedies Code. Texarkana

Mem'l Hosp., Inc., 946 S.W.2d at 840. Because the

Roses only offered documentary evidence, they must

meet the requirements of section 18.001. Section

18.001 provides:

HN9 (b) Unless a controverting affidavit is filed

as provided by this section, an affidavit that the

amount a person charged for a service was

reasonable at the time and place that the

service was provided and that the service was

necessary is sufficient evidence to support a

finding of fact by judge or jury that the amount

charged was reasonable or that the service

was necessary.

(c) The affidavit must: (1) be taken before an

officer with authority to administer oaths; (2) be

made by: (A) the person who provided the

service; or (B) the person in charge of records

showing the service provided and charge made;

and (3) include an itemized statement of the

service and the charge.

TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b)-(c)

[**14] (Vernon 1997).

The documentary evidence accompanying Lois's

affidavit includes medical records, doctors' reports, pain

assessment reports, and an itemized statement of

services rendered and charges incurred. The doctors'

reports consist of one report from an osteopathic

physician and a second report [**15] from a radiologist.

This evidence does not satisfy the requirements set

forth by section 18.001 because neither of these reports

are affidavits. HN10 An affidavit is a statement of facts

sworn to as the truth before an officer authorized to

administer oaths. See TEX. GOV'T CODE ANN. §

312.011(1) (Vernon 2005). These doctors' reports are

statements of facts about the medical care provided to

Lois and John III, but they were not under oath, and

therefore, they do not satisfy the affidavit requirement of

section 18.001. See, e.g., TEX. CIV. PRAC. & REM.

CODE ANN. § 18.002(a)-(b) (Vernon 1997) (example

forms of affidavits for doctor or custodian of records

evidencing the basic requirements of section 18.001).

Accordingly, we find that there is legally insufficient

evidence to support an award for reasonable and

necessary medical care in the past as to Lois and John,

III.

Likewise, there is no evidence of the following elements

of damage for which Lois and John, III sought recovery:

(1) reasonable and necessary medical care in

the future,

2

For example, Lois's affidavit alleges she suffered damages in the following amounts: $ 2,994.65 in medical expenses; $

2,653.84 in lost wages; and $ 6,000.00 in pain and suffering, mental anguish, and emotional distress. Therefore, the sum of the

amounts requested by Lois for specific elements of damages is $ 11,648.49. However, in her affidavit, Lois also alleges that her

"total damages when combined with inconvenience is $ 9,000.00." The discrepancy between these amounts, coupled with the

fact that the trial court awarded a lump sum of $ 9,000.00 to Lois, makes it impossible for us to determine, based upon evidence

in the affidavits, the amount awarded by the trial court for any single element of damages.

218 S.W.3d 216, *222; 2007 Tex. App. LEXIS 842, **11

Page 6 of 7
(2) past physical impairment,

(3) physical impairment which, in all reasonable

[**16] probability, will be suffered in the

future,

(4) past mental anguish, and

(5) future mental anguish.

Furthermore, there is no evidence as to the following

elements of damage for which Lois sought recovery:

[*224] (1) lost earnings which, in all reasonable

probability, will be suffered in the future,

(2) past loss of consortium, and

(3) past loss of household services.

In addition, there is no evidence as to the following

elements of damage for which John, Jr. sought recovery:

(1) past loss of consortium,

(2) reasonable and necessary medical care in

the past, and

(3) reasonable and necessary medical care in

the future.

B. Separability of Damages

In his third issue, Whitaker asserts he is entitled to a

new trial because the judgment fails to distinguish

between reversible and non-reversible damages. In

support of his argument, Whitaker cites Rule 44.1(b) of

the Texas Rules of Appellate Procedure and this court's

decision in Jackson v. Gutierrez, 77 S.W.3d 898, 903-04

(Tex. App.--Houston [14th Dist.] 2002, no pet.).

In Jackson, this court held that HN11 if a default

judgment makes a single damage [**17] award based

on more than one damage element and if there is no

evidence to support the award as to one of the elements

upon which the award is based, then this court must

reverse and remand as to the entire award, even though

one of the other elements might be sufficient to support

the award. 3 See id. (citing TEX. R. APP. P. 44.1(b)). In

Jackson, the trial court awarded a single amount for

mental anguish and pain and suffering. Id. On appeal,

the evidence of mental anguish was held legally

insufficient, and the record did not provide "any means"

of distinguishing the amount awarded for mental anguish

from that awarded for pain and suffering. Id. Therefore,

the Jackson court concluded that "even if an award for

pain and suffering was supported by the evidence, the

precise amount of damages could not be determined.

We therefore must also reverse the pain and suffering

award." Id.

[**18] In the instant case, as in Jackson, there is no

evidence of at least one possible damage element as to

each of the three lump-sum awards. Further, because

the trial court did not specify the damage elements it

was awarding in its judgment, and the record does not

provide any means for distinguishing the amounts

awarded for each element of damage, we cannot

determine whether the trial court awarded damages

based on the elements as to which there is no evidence.

Therefore, this court must reverse all of the damage

awards and remand the claims for a new trial on

unliquidated damages. See id.; see also Holt Atherton,

835 S.W.2d at 86 (holding that when appellate court

sustains no evidence point after an uncontested hearing

on unliquidated damages following no answer default

judgment, appropriate disposition is to remand for trial

on issue of unliquidated damages). Because there is no

evidence of the Roses' damages, we do not reach the

issue of causal nexus. See Morgan, 675 S.W.2d at 732

("The causal nexus between the event sued upon and

the plaintiff's injuries must be shown by competent

evidence."). Accordingly, we sustain appellant's third

issue [**19] and reverse all of the damage awards and

remand the [*225] claims for a new trial on unliquidated

damages and causal nexus.

CONCLUSION

We affirm the trial court's judgment as to liability. We

reverse all of the damage awards and remand for a new

trial on the issue of damages.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed February 6, 2007.

3 Our holding in Jackson is based on the same principles applied by the Texas Supreme Court in Crown Life Ins. Co. v.

Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (holding the trial court erred in submitting a jury charge which mixed valid and invalid

theories of liability in a single broad-form submission, and that such error was harmful because it prevented the appellate court

from determining whether the jury based its verdict on an invalid theory of liability).

218 S.W.3d 216, *223; 2007 Tex. App. LEXIS 842, **15

Page 7 of 7
Page 1 

Positive 

As of: Mar 30, 2015 

Lydia Williams, Appellant v. Jackie Williams and K. W., Appellees 

NO. 03-02-00723-CV 

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN 

150 S.W.3d 436; 2004 Tex. App. LEXIS 89

January 8, 2004, Filed 

SUBSEQUENT HISTORY: [**1] 

Petition for review denied by Williams v. Williams, 2004 

Tex. LEXIS 803 (Tex., Sept. 10, 2004)

Motion for rehearing on petition for review denied by 

Williams v. Williams, 2004 Tex. LEXIS 1033 (Tex., Oct. 

29, 2004)

PRIOR HISTORY: FROM THE COUNTY 

COURT AT LAW OF BASTROP COUNTY. NO. 

02-7380, HONORABLE BENTON ESKEW, JUDGE 

PRESIDING. 

DISPOSITION: Reversed and remanded. 

COUNSEL: Ms. Pamela E. George-[appellant], Houston, TX. 

Mr. J. Paul Standefer-[ad litem-K.W.], Bastrop, TX.

Mr. Chris D. Cillon-[Jackie Williams], Bastrop, TX.

Mr. William H. Jenkins-[Jackie Williams], Bastrop, TX. 

JUDGES: Before Chief Justice Law, Justices B. A. 

Smith and Puryear. 

OPINION BY: David Puryear 

OPINION 

 [*441] Appellee Jackie Williams 1

 filed a petition 

to terminate the parent-child relationship between appellant Lydia Williams and her daughter, K.W. When Lydia 

failed to answer, the trial court granted a default judgment, terminating Lydia's parental rights. Lydia timely 

filed a motion for new trial, which the trial court overruled. She now appeals. We hold that although the citation with which Lydia was served failed to include the 

name of the petitioner, Jackie Williams, the record reflects that Lydia was properly served. We further hold 

that the evidence is legally insufficient to support the 

trial court's judgment terminating Lydia's parental rights. 

We therefore reverse the trial court's judgment. In the 

interest of justice, however, we remand the cause to the 

trial court for further proceedings. 

1 Jackie Williams, maternal grandmother of 

K.W., is the only appellee who filed a brief with 

this Court. 

 [**2] BACKGROUND

 These facts are compiled from the parties' briefs,

their trial court pleadings, and the evidence from the motion for new trial hearing. This factual summary is included [*442] to provide a background for the discussion in this opinion but should not be construed as a conclusive finding of any fact for subsequent proceedings. 

Lydia Williams is the natural mother of K.W., the 

child who is the subject of this appeal. Jackie is Lydia's 

mother and the child's grandmother. By an agreed order 

dated March 23, 2001, Jackie Williams was appointed
Page 2 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

sole managing conservator of K.W., and Lydia was appointed possessory conservator. 2

 

2 The record does not reveal what circumstances precipitated the rendition of the agreed 

order. It appears, however, that Child Protective 

Services (CPS) was involved, as the order dismisses CPS from the suit. 

On June 6, 2002, Jackie filed a petition to terminate 

Lydia's parental rights to K.W., alleging (1) that Lydia 

engaged in conduct or knowingly placed her [**3] child 

with persons who engaged in conduct that endangers the 

physical or emotional well being of the child, (2) that she 

failed to support the child in accordance with her ability 

during the period of one year ending within six months 

of the date of the filing of the petition, and (3) that termination was in K.W.'s best interest. The petition also 

sought the termination of K.W.'s father's parental rights. 

Jackie requested in her petition that Thomas and Iris 

Cummins, prospective adoptive parents, be named 

K.W.'s managing conservators. 

Lydia failed to file an answer in response to the petition. Consequently, the trial court held a default judgment hearing on August 2, 2002 and signed an order 

terminating Lydia's parental rights on August 13. On 

August 23, Lydia filed a pro se answer, and on September 12, she filed a motion for new trial. The trial court 

held a hearing on the motion for new trial, during which 

both Lydia and Jackie testified. 

According to Lydia's testimony, she and Jackie 

maintained a strained relationship, although they saw 

each other regularly when Lydia visited her daughter, 

K.W., and they spoke frequently. When Lydia was 

served with the petition to terminate her [**4] parental 

rights, she spoke to her mother, and based on their conversation, assumed that her mother was not pursuing the 

petition. Later, Lydia learned from her brother that her 

mother hired a new attorney and was indeed pressing

forward with the termination. Lydia claims that she subsequently contacted a legal hotline and was told that she 

would be served anew because her mother had hired a

different attorney. Based on this advice, Lydia failed to 

file an answer to the petition. Although Lydia spoke to 

her mother before the August 2 termination hearing,

Jackie never informed Lydia of the hearing date. Thus, 

Lydia did not learn of the termination of her parental 

rights until after the trial court rendered its judgment. 

She then hired a lawyer and filed her motion for new 

trial. As for her meritorious defense, Lydia alleged that 

the allegations in Jackie's petition were untrue and insufficient evidence exists to support them. 

Following the presentation of evidence, the trial 

court overruled the motion for new trial. Lydia now appeals the trial court's judgment, challenging the sufficiency of the evidence, contending the trial court erred in 

overruling her motion for new trial, and claiming [**5] 

the citation with which she was served was defective. 

DISCUSSION 

Introduction 

The natural right that exists between parents and 

their children is of constitutional [*443] dimensions. 

Stanley v. Illinois, 405 U.S. 645, 652, 31 L. Ed. 2d 551, 

92 S. Ct. 1208 (1972); Holick v. Smith, 685 S.W.2d 18, 

20, 28 Tex. Sup. Ct. J. 230 (Tex. 1985). The United 

States Supreme Court has characterized the right to raise 

one's child as fundamental--a basic civil right far more 

precious than property rights. Stanley v. Illinois, 405 U.S. 

at 651. Because the involuntary termination of parental 

rights is complete, final, and irrevocable, termination 

proceedings must be strictly scrutinized. Holick, 685 

S.W.2d at 20. 

Service of Citation

 By her first issue, Lydia claims that the citation

upon which the default judgment was based is defective, 

and thus, the judgment is void. She argues that (1) the 

citation failed to include the name of the petitioner, 

Jackie, and (2) it was not directed to a sheriff or constable. 

Service of citation must be in strict compliance with 

the rules of civil procedure to establish jurisdiction over 

a defendant and support [**6] a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60 

(Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885, 28 Tex. Sup. Ct. J. 423 

(Tex. 1985); Barker CATV Constr., Inc. v. Ampro, Inc., 

989 S.W.2d 789, 792 (Tex. App.--Houston [1st Dist.]

1999, no pet.). If strict compliance is not shown, the service of process is invalid and of no effect. Uvalde Country Club, 690 S.W.2d at 885. We make no presumptions 

of valid issuance, service, or return of citation when examining a default judgment. Id.

To be valid, a citation must comply with twelve requirements. The citation must 

(1) be styled "The State of Texas," 

(2) be signed by the clerk under seal of court, 

(3) contain name and location of the court, 

(4) show date of filing of the petition, 

(5) show date of issuance of citation, 

(6) show file number, 

(7) show names of parties, 
Page 3 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

(8) be directed to the defendant, 

(9) show the name and address of attorney for plaintiff, 

(10) contain the time within which these rules require the defendant to file a written answer with the clerk 

who issued citation, 

(11) contain address [**7] of the clerk, and 

(12) notify the defendant that in case of failure of 

defendant to file an answer, judgment by default may be 

rendered for the relief demanded in the petition. 

Tex. R. Civ. P. 99(b). 

In this case, the citation fails to include Jackie's 

name but complies with rule 99 in all other respects. 

Instead of naming the parties, the citation includes the 

style of the case, which is "In the Interest of: [K.W.]." 

See Tex. Fam. Code Ann. § 102.008(a) (West 2002) 

(suit affecting parent child relationship must be styled, 

"In the interest of ________, a child"). It also correctly 

identifies Lydia and includes the name and address of 

Jackie's attorney. Jackie is named as the petitioner in the 

original petition to terminate the parent-child relationship, which was attached to the citation. Lydia does not 

claim on appeal that she was not properly identified on 

the citation. Nor does she claim that she was not served. 

Indeed, she filed an answer with the trial court, albeit 

after the court rendered judgment. Her complaint is that 

the citation did not include the name of Jackie, who was 

a party to the dispute, and therefore did not strictly [**8] 

comply with the rules of civil procedure. 

We note that strict compliance with the rules does 

not require "obeisance [*444] to the minutest detail." 

Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 

608, 613 (Tex. App.--Corpus Christi 1996, writ denied); 

Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 

866, 871 (Tex. App.--Houston [1st Dist.] 1995, no writ). 

As long as the record as a whole, including the petition, 

citation, and return, shows that the citation was served on 

the defendant in the suit, service of process will not be 

invalidated. Regalado v. State, 934 S.W.2d 852, 854 

(Tex. App.--Corpus Christi 1996, no writ); Ortiz, 926 

S.W.2d at 613; Payne & Keller Co. v. Word, 732 S.W.2d 

38, 41 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd 

n.r.e.). 

 

This case presents a unique issue. On one hand, the failure to include the name of a party, even if it is the name 

of the plaintiff and not the defendant, is not a minute 

detail. Cf. Ortiz, 926 S.W.2d at 613 (omission of accent 

mark and of corporate designation and substitution of 

symbol " at " for word "at" are defects [**9] that do not 

invalidate service); Cockrell v. Estevez, 737 S.W.2d 138, 

140 (Tex. App.--San Antonio 1987, no writ) (misspelling 

of defendant's name in citation did not invalidate service); Payne & Keller Co., 732 S.W.2d at 41 (judgment 

upheld where petition and citation reflected registered 

agent as "Philippe Petitfrere," and return reflected 

"Philipee Petitfreere"). On the other hand, there was no 

confusion about whether the correct party was actually 

served. Compare Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 696-97, 34 Tex. Sup. Ct. 

J. 16 (Tex. 1990) (although return did not recite method 

of service as required, record demonstrated strict compliance with valid method of service), Dezso v. Harwood, 926 S.W.2d 371, 374 (Tex. App.--Austin 1996, writ 

denied) (upholding default judgment even though wrong 

person was sued because record clearly showed proper 

defendant received service and knew she was intended 

defendant), and Cockrell, 737 S.W.2d at 140 (although 

defendant's name was misspelled in citation and return, 

default judgment not void where defendant did not claim 

lack of service and was clearly not [**10] misled by 

spelling error), with Uvalde Country Club, 690 S.W.2d at 

885 (holding that where return showed Henry Bunting 

was served and petition alleged Henry Bunting, Jr. was 

proper registered agent of defendant, record did not show 

that correct person was served), Hercules Concrete 

Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 311 (Tex. App.--Houston [1st 

Dist.] 2001, pet. denied) (where return reflected service 

on "Hercules Concrete Pumping" instead of "Hercules

Concrete Pumping Service, Inc.," court held return failed 

to show service on proper defendant), P&H Transp., Inc. 

v. Robinson, 930 S.W.2d 857, 859-60 (Tex. 

App.--Houston [1st Dist.] 1996, writ denied) (reversing 

default judgment where evidence did not affirmatively 

show that person named in citation was person actually 

served), and Avila v. Avila, 843 S.W.2d 280, 282 (Tex. 

App.--El Paso 1992, no writ) (reversing default judgment 

where record failed to show that person served was person named in citation). Nor does Lydia claim confusion 

regarding who filed the suit. 

Ultimately, although our jurisprudence requires 

strict adherence [**11] to the rules regarding service of 

citation, it does so to ensure that there is no question 

about whether the proper party has been served before a 

default judgment is rendered. Here, however, not only 

does the return reflect that Lydia was properly served, 

but Lydia admitted that she was properly served 

throughout her testimony during the motion for new trial 

hearing. She testified that she was served while she was 

in jail, that she carefully read all of "the papers" that 

were served on her in jail, and that she immediately contacted [*445] her father after she was served. Furthermore, when asked how she discovered the names of 

the prospective adoptive parents, she answered that their 

names were in "the papers I was served." Finally, in her 

affidavit supporting her motion for new trial, Lydia 
Page 4 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

averred that she was served while in jail, that her mother 

was the petitioner in the petition to terminate Lydia's 

parental rights, and that she drafted a response to the 

petition two weeks after she was served, but did not mail 

it until after the default judgment was rendered. Not only 

did her testimony make clear that she was properly 

served, but she also knew who the petitioner was in this 

suit. In [**12] light of the fact that there is no dispute as 

to whether Lydia was properly served and that the record 

establishes that she was aware of who filed the suit, we 

hold that the trial court did not err in assuming personal 

jurisdiction over Lydia. See Higginbotham, 796 S.W.2d 

at 697 (evidence from motion for new trial hearing 

showed strict compliance with valid method of service); 

Cockrell, 737 S.W.2d at 140 (where defendant claimed 

neither lack of service nor that he was misled by misspelled name, record did not reflect invalid service). 

Lydia also relies on rule of civil procedure 15 in 

support of her argument. That rule instructs that "process 

shall be directed to any sheriff or any constable within 

the State of Texas." Tex. R. Civ. P. 15. Citing Barker 

CATV Construction, Inc. v. Ampro, Inc., 989 S.W.2d 789 

(Tex. App.--Houston [1st Dist.] 1999, no pet.), Lydia 

argues that rule 15, when coupled with rule 99(b), which 

addresses the issuance and form of citation, requires the 

citation be addressed to both the defendant and a constable or sheriff. We disagree. 

Rule 15 instructs that all writs and process shall be 

directed to any sheriff [**13] or constable. Tex. R. Civ. 

P. 15. It does not address the form of the citation, however. Rule 99, on the other hand, specifies what the form 

of the citation shall include. It requires the citation be 

directed to the defendant, but says nothing about expressly addressing the citation to any sheriff or constable. 

Tex. R. Civ. P. 99. 

In Ampro, the citation was addressed to both the defendant and "to any sheriff or constable or authorized 

person." Ampro, 989 S.W.2d at 791. The court recited 

that "failure to direct citation to the defendant as required 

by the rules results in a void citation, ineffective service, 

and a void default judgment." Id. at 792. In previous 

opinions, the court had held that citations that were directed to both the defendant and addressed to the sheriff 

or constable are confusing and do not strictly comply 

with the rules. Id. (citing Medeles v. Nunez, 923 S.W.2d 

659 (Tex. App.--Houston [1st Dist.] 1996, writ denied); 

Faggett v. Hargrove, 921 S.W.2d 274 (Tex. 

App.--Houston [1st Dist.] 1995, no writ)). The court reconsidered those prior holdings and in harmonizing rules 

15 and 99, determined [**14] that the rules do allow 

citations to be directed to both the defendant and the 

sheriff or constable. Id. at 792-93. The court, however, 

did not hold that the citation must be addressed to both. 

Like the Ampro court, we too hold that citations must be 

expressly directed to the defendant under rule 99 and 

may also be addressed to the sheriff or constable under 

rule 15, but failure to include the sheriff or constable on 

the form of the citation will not render it void. Because 

the citation in this case was directed to Lydia, the defendant, we hold that the citation was not void and overrule Lydia's first issue. 

 

Default Judgments

 

 Before we review the sufficiency of the evidence, we 

must determine the effect of Lydia's failure to file an 

answer [*446] with the trial court and her failure to 

appear at the termination hearing. Traditionally, no evidence is necessary to support a no-answer default judgment because the defendant's failure to answer is taken as 

admitting the allegations of the petition. Holt Atherton 

Indus., Inc. v. Heine, 835 S.W.2d 80, 83, 35 Tex. Sup. Ct. 

J. 881 (Tex. 1992). Indeed, it is well established that a 

default judgment operates as an admission [**15] of the 

material facts alleged in the plaintiff's petition. Id.; Stoner v. Thompson, 578 S.W.2d 679, 684, 22 Tex. Sup. Ct. J. 

258 (Tex. 1979). 

Termination proceedings, however, are special. A 

court's primary consideration in cases involving parental 

rights is always the best interest of the child. See Tex. 

Fam. Code Ann. § 153.002 (West 2002); Wiley v. 

Spratlan, 529 S.W.2d 616, 617-18 (Tex. Civ. App.--Tyler 

1975), rev'd on other grounds, 543 S.W.2d 349, 19 Tex. 

Sup. Ct. J. 385 (Tex. 1976). Before determining the best 

interest of a child, the court should ensure that it is as 

well-informed as the circumstances allow. Such a determination is rarely well-informed without consideration 

of the evidence and the perspective of the parents. In re 

P.M.B., 2 S.W.3d 618, 624-25 (Tex. App.--Houston [14th 

Dist.] 1999, no pet.). Accordingly, the best interest of the 

child requires that issues be as fully developed as possible, and technical rules of pleading and practice are not 

of controlling importance. Lohmann v. Lohmann, 62 

S.W.3d 875, 879 (Tex. App.--El Paso 2001, no pet.); 

Sexton v. Sexton, 737 S.W.2d 131, 133 [**16] (Tex. 

App.--San Antonio 1987, no writ); Little v. Little, 705 

S.W.2d 153, 154 (Tex. App.--Dallas 1985, writ dism'd 

w.o.j.); Barrow v. Durham, 574 S.W.2d 857, 861 (Tex. 

Civ. App.--Corpus Christi 1978), aff'd, 600 S.W.2d 756, 

23 Tex. Sup. Ct. J. 361 (Tex. 1980). Pertinent facts that 

may affect the best interest of the child should be heard 

and considered by the trial court regardless of the lack of 

diligence of the parties in their presentation of information to the court. C. v. C., 534 S.W.2d 359, 361 (Tex. 

Civ. App.--Dallas 1976, writ dism'd w.o.j.). 

Moreover, because terminating the parent-child relationship is such a drastic measure, termination proceedings include many procedural safeguards not found in 
Page 5 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

other civil trials. For example, termination hearings require clear and convincing evidence, a heightened burden of proof. See Tex. Fam. Code Ann. § 161.001 (West 

2002); In re G.M., 596 S.W.2d 846, 847, 23 Tex. Sup. Ct. 

J. 262 (Tex. 1980). They receive precedence over other 

civil trials and appeals. Tex. Fam. Code Ann. §§ 

105.004, 109.002, 161.202 (West 2002). They allow for 

the appointment [**17] of counsel for the child and 

indigent parents. Id. §§ 107.011-.016 (West Supp. 2004). 

The trial court has only one year, plus one 180-day extension, within which to render a final order or dismiss 

the suit. Id. § 263.401 (West 2002). 

In summary, the termination of parental rights is unlike a traditional civil case, involving only two competing interests, the plaintiff's and the defendant's. The 

child's interest must also be considered and indeed is of 

paramount importance. The traditional no-answer default 

judgment rule takes into consideration only the actions of 

the defaulting parent; it leaves no room for the trial court 

to consider the child's best interest. Cf. Lowe v. Lowe, 

971 S.W.2d 720, 725-27 (Tex. App.--Houston [14th 

Dist.] 1998, pet. denied) (criticizing the application of 

Craddock to suits affecting parent-child relationship). 

Thus, in light of the special characteristics of termination 

proceedings and the important interests they are designed 

to protect, we hold that the traditional rule--that evidence 

is unnecessary to support a default judgment because the 

failure to answer is taken as an admission of the allegations in [*447] the petition--does [**18] not apply to 

involuntary termination of parental rights proceedings. 

As further support for our holding, we note that a 

petition for the termination of a parent-child relationship 

is "sufficient without the necessity of specifying the underlying facts if the petition alleges in the statutory language the ground for the termination and that termination 

is in the best interest of the child." Tex. Fam. Code Ann. 

§ 161.101 (West 2002). Thus, if we were to apply the 

traditional rule for no-answer default judgments, we 

would be compelled to hold that the allegations in a petition are legally sufficient to support a termination of parental rights where the respondent has failed to answer, 

even if there were no supporting facts alleged in the petition or developed at trial. Such a conclusion runs afoul of 

the oft-cited axiom that a court's primary consideration in 

these cases is always the best interest of the child, for it 

cannot be said that the best interest of the child has been 

served when a court reaches its conclusion based on traditional rules of pleading and practice rather than on a 

comprehensive review of the available evidence. 

Moreover, under the [**19] traditional no-answer 

default judgment rule, a parent's failure to answer a petition to terminate her parental rights would be tantamount 

to a voluntary relinquishment of parental rights, as the 

parent would be deemed to have admitted the allegations 

in the petition, and the court could then terminate the 

parental rights based solely on the deemed admissions. 

Cf. id. § 161.001(1)(K); Marywood v. Vela, 17 S.W.3d 

750, 758-59 (Tex. App.--Austin 2000, pet. denied) (holding that petitioner must prove by clear and convincing 

evidence that affidavit of relinquishment was executed as 

provided in section 161.103 and that termination is in 

child's best interest). But even voluntary relinquishments 

of parental rights are subject to strict procedural requirements. For example, a petitioner must prove by

clear and convincing evidence that an affidavit of voluntary relinquishment of parental rights was executed in 

accordance with section 161.103 of the family code; that 

statute requires, among other things, that the affidavit be 

witnessed by two credible persons and verified before a 

person authorized to take oaths. Tex. Fam. Code Ann. § 

161.103(a)(2) [**20] , (3) (West Supp. 2004). Furthermore, unless the affidavit expressly states that it is 

irrevocable, a parent may revoke a relinquishment in 

accordance with specified procedures. Id. §§ 161.103(g), 

.1035 (West 2002 & Supp. 2004). And finally, it is 

well-established that relinquishment affidavits must be 

executed voluntarily and knowingly. Marywood, 17 

S.W.3d at 759. Indeed, an involuntarily executed affidavit is a complete defense to a termination suit or decree 

based solely upon a finding under section 161.001(1)(K) 

of the family code. Id. These requirements must be adhered to before a court may terminate a parent-child relationship based solely on an affidavit of relinquishment. 

Yet, if a default judgment is rendered, under the traditional rule, a parent has in effect relinquished her parental rights, without the procedural protections provided by 

statute and without the opportunity to revoke that relinquishment. Such a rule, in the context of termination of 

parental rights, is too harsh given the constitutional dimension of the rights that are affected in these cases. 

Finally, the practical complications of requiring the 

presentation of evidence before a [**21] no-answer

default judgment can be rendered in termination cases 

are slight compared to the interests that must be protected. We note that many well-established legal doctrines 

include exceptions based on the public policy of the State 

[*448] when a child's best interest is at issue. In re 

K.C., 88 S.W.3d 277, 280 (Tex. App.--San Antonio 2002, 

pet. denied) (Hardberger, C. J., dissenting). In addition, 

requiring the presentation of evidence even though the 

opposing party has failed to respond is not a novel concept. Cf. Heine, 835 S.W.2d at 83 (holding that court 

rendering default judgment must hear evidence of 

unliquidated damages); Tex. Fam. Code Ann. § 6.701

(West 2002) (if respondent fails to answer in divorce 

suit, petition may not be taken as confessed); Considine 

v. Considine, 726 S.W.2d 253, 254 (Tex. App.--Austin 

1987, no writ) (holding that allegations in motion to 

modify conservatorship and support may not be taken as 
Page 6 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

confessed if respondent fails to answer); see also Klapprott v. United States, 335 U.S. 601, 612-13, 93 L. Ed. 

266, 69 S. Ct. 384 (1949) (reversing default judgment in 

denaturalization proceeding [**22] because rendered 

without evidentiary hearing). In Considine, this Court 

reasoned that the policy considerations underlying section 6.701 of the family code, which requires the petitioner to prove the allegations in a petition for divorce 

even if the respondent has failed to answer, should also 

apply in proceedings to modify provisions in prior divorce judgments that appoint conservators and set child 

support. 726 S.W.2d at 254; see also Armstrong v. Armstrong, 601 S.W.2d 724, 726 (Tex. Civ. App.--Beaumont 

1980, writ ref'd n.r.e.) (refusing to apply the traditional 

default judgment rule in reviewing modification of conservatorship). Similarly, we conclude that it cannot be in 

the child's best interest to determine whether his relationship with his parent should be terminated based

solely on the parent's failure to file timely a response to 

the petition. We recognize that the parent's failure to respond may affect the trial court's consideration of the 

issues in the case, but it should not form the sole basis 

for the trial court's judgment. 

We suspect that the facts presented in this case are 

anomalous and that this is a unique case. We note that 

the [**23] Department of Protective and Regulatory

Services was not a party in this dispute, and no attorney 

ad litem was appointed to represent the parent. 3

 In addition, Lydia claims her failure to appear was due in part to 

bad legal advice and misrepresentations made to her by 

her mother, who initiated this action. Finally, although 

Lydia filed a motion for new trial after the court rendered 

its judgment, the court overruled the motion, thus denying Lydia the opportunity to present her perspective 

about the allegations made against her. 4 Under these 

unusual circumstances, we would be remiss were we to 

rely only on the allegations in the petition as a basis for 

severing this parent-child relationship. 

3 This statement should not be construed to 

suggest that an attorney ad litem should be appointed to represent a parent whose parental 

rights are subject to termination without a showing of indigency. The record in this case does not 

reveal whether the issue of Lydia's indigency was 

ever raised before the court. We merely observe 

that often, even if the parent is not present at trial, 

an attorney ad litem usually is, thereby appearing 

for the parent and protecting the parent's rights. In 

re K.C., 88 S.W.3d 277, 279 (Tex. App.--San Antonio 2002, pet. denied) (holding that because 

party's attorney appeared at trial, even though 

party did not, there was no default judgment; case 

was tried on the merits). 

 [**24] 

4 Because we are reversing based on Lydia's 

legal insufficiency point, we do not reach her 

complaint that the trial court erred in failing to 

grant her motion for new trial and express no 

opinion on this issue. 

 

Legal Sufficiency Review

 

 Because termination of parental rights is such a drastic 

remedy and is of such weight and gravity, due process 

requires the petitioner to justify termination [*449] by 

the heightened burden of proof of "clear and convincing 

evidence." Tex. Fam. Code Ann. § 161.001; In re G.M., 

596 S.W.2d at 846. "Clear and convincing evidence" 

means "the measure or degree of proof that will produce 

in the mind of the trier of fact a firm belief or conviction 

as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2002); 

accord In re C.H., 89 S.W.3d 17, 19, 25, 45 Tex. Sup. Ct. 

J. 1000 (Tex. 2002); In re G.M., 596 S.W.2d at 847. This 

standard is an intermediate standard, falling between the 

preponderance standard of ordinary civil proceedings 

[**25] and the reasonable doubt standard of criminal 

proceedings. In re G.M., 596 S.W.2d at 847. 

The heightened "clear and convincing evidence" 

burden of proof alters our appellate legal sufficiency 

standard of review. In re J.F.C., 96 S.W.3d 256, 256-66, 

46 Tex. Sup. Ct. J. 328 (Tex. 2002); In re C.H., 89 

S.W.3d at 25. This is because our traditional no-evidence 

standard of review does not adequately protect the parents' constitutional interests. In re J.F.C., 96 S.W.3d at 

264-65. In conducting our legal sufficiency review in 

termination cases, we must review all the evidence in the 

light most favorable to the finding and the judgment to 

determine "whether the evidence is such that a factfinder 

could reasonably form a firm belief or conviction" that 

the grounds for termination were proven. Id. at 265-66. 

In other words, we must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. at 266. We must also disregard all evidence that a reasonable fact finder could 

have disbelieved or found to have been incredible. Id.

This does not mean that a court [**26] must disregard 

all evidence that does not support the finding, as this 

could skew the analysis of whether there is clear and 

convincing evidence. Id. We must consider undisputed 

evidence even if it does not support the finding. Id. Following this review, if we determine that no reasonable 

fact finder could form a firm belief or conviction that the 

matter that must be proven is true, then we must conclude that the evidence is legally insufficient and render 

judgment in favor of the parent. Id.

Termination of Parental Rights
Page 7 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

A court may terminate parental rights if it finds that: 

(1) the parent has engaged in any of the specific conduct 

enumerated in the family code as grounds for termination, and (2) termination is in the best interest of the 

child. Tex. Fam. Code Ann. § 161.001; Richardson v. 

Green, 677 S.W.2d 497, 499, 27 Tex. Sup. Ct. J. 466

(Tex. 1984). The fact finder must determine that clear 

and convincing evidence supports both elements; proof 

of one element does not relieve the burden of proving the 

other. Holley v. Adams, 544 S.W.2d 367, 370, 20 Tex. 

Sup. Ct. J. 76 (Tex. 1976) (quoting Wiley v. Spratlan, 

543 S.W.2d 349, 351, 19 Tex. Sup. Ct. J. 385 (Tex. 

1976)). [**27] The child's best interest is not the sole

goal of involuntary termination proceedings; termination 

"may not be based solely upon what the trial court determines to be the best interest of the child." Id.

The trial court's final order states that it found by 

clear and convincing evidence (1) that Lydia has engaged in conduct or knowingly placed the child with

persons who engaged in conduct that endangers the 

physical or emotional well-being of the child, (2) that she 

failed to support the child in accordance with her ability 

during a period of one year ending within six months of 

the date of the filing of the petition, and (3) that termination of the parent-child relationship between Lydia and 

her child is in the best interest of the child. 

[*450] Dangerous Conduct

Under section 161.001(1)(E), a parent's rights may 

be terminated if it is established by clear and convincing 

evidence that the parent has "engaged in conduct or

knowingly placed the child with persons who engaged in 

conduct which endangers the physical or emotional 

well-being of the child." Tex. Fam. Code Ann. § 

161.001(1)(E). Under subsection (E), we look exclusively to the parents' [**28] conduct, including actions, omissions, or the parents' failure to act. In re D.M., 

58 S.W.3d 801, 811 (Tex. App.--Fort Worth 2001, no 

pet.). Termination based on this subsection must be 

based on more than a single act or omission; a voluntary, 

deliberate, and conscious "course of conduct" that endangered the child's physical and emotional well-being is 

required. Texas Dep't of Human Servs. v. Boyd, 727 

S.W.2d 531, 534, 30 Tex. Sup. Ct. J. 352 (Tex. 1987); In 

re D.M., 58 S.W.3d at 811. "Endanger" means to expose 

to loss or injury, to jeopardize. In re M.C., 917 S.W.2d 

268, 270, 39 Tex. Sup. Ct. J. 373 (Tex. 1996). The endangering acts need not have been directed at the child, 

or have caused an actual injury or threat of injury to the 

child to constitute conduct that endangers the child's 

physical or emotional well-being. In re M.C., 917 S.W.2d 

268, 269, 39 Tex. Sup. Ct. J. 373 (Tex. 1996). 

At the termination hearing, Jackie was the only witness who testified. She was asked by her attorney 

whether Lydia "engaged in conduct or knowingly placed 

the child with persons who engaged in conduct that endangers the physical and emotional well being of the 

child," to which Jackie [**29] answered, "Yes." The 

child's attorney ad litem then cross-examined Jackie and 

asked for "some specifics about what Lydia has done to 

make you believe it's best that her parental rights be terminated." Jackie responded that Child Protective Services had previously investigated Lydia, and since then, 

Lydia "has not really made any changes in that area." 

According to Jackie, Lydia "still doesn't have a job. She 

has left them and she has another baby by another man 

that she's lived with that I believe is involved in drugs, 

and she comes to visit [K.W.] on occasion, but she takes 

no responsibility to be her mother." The ad litem further 

inquired whether the CPS investigation had to do with 

"an issue of physical neglect," to which Jackie responded, "Yes. She left [K.W.] alone by herself," when she 

was about six months old. This was the totality of the 

evidence adduced to support the allegation that Lydia 

engaged in conduct or placed her child with persons who 

engaged in conduct that endangered her daughter's well 

being. 

Viewing the testimony in the light most favorable to 

the judgment, as we must, we conclude that a fact finder 

could not reasonably have formed a firm belief or conviction [**30] that this ground for termination was 

proven. In attempting to support the conclusory statement that Lydia engaged in conduct or placed her child 

with someone who engaged in conduct that endangered

her child, Jackie sparingly described events from the past 

that led to CPS's involvement and Lydia's current conservatorship status. Jackie's testimony revealed about 

CPS's prior involvement only that Lydia had at one time 

left her child alone when the child was six months old. 

The record also reveals, however, that following that 

incident (about which we know very little), CPS did not 

seek termination of Lydia's parental rights, and indeed, 

was ultimately dismissed from the suit. Moreover, Lydia 

was named possessory conservator of her child. There is 

no evidence that any of Lydia's conduct directly resulted 

in endangerment to the child's physical or emotional 

well-being. Indeed, there is no evidence that the child's 

physical or emotional well-being [*451] was ever endangered. In re D.T., 34 S.W.3d 625, 634 (Tex. 

App.--Fort Worth 2000, pet. denied) (holding there must 

be evidence of endangerment to child's physical or emotional well-being as direct result of parent's conduct). 

[**31] Additionally, termination under this subsection 

must be based on more than a single act or omission; 

evidence of a voluntary "course of conduct" is required. 

Id. This simply was not established here. Finally, Jackie's 

statement that she believes Lydia lives with a man who is 

involved in drugs is no more than a mere surmise or suspicion, which is not the same as evidence. See Kindred v. 
Page 8 

150 S.W.3d 436, *; 2004 Tex. App. LEXIS 89, ** 

Con/Chem, Inc., 650 S.W.2d 61, 63, 26 Tex. Sup. Ct. J. 

383 (Tex. 1983). We therefore hold that there is no legally sufficient evidence to support the trial court's finding that Lydia engaged in conduct or placed her child 

with others who engaged in conduct that endangered the 

child's well-being. 

Failure to Support

 Under section 161.001(1)(F), the parent-child relationship may also be terminated if the court finds by 

clear and convincing evidence that the parent has failed 

to support the child in accordance with the parent's ability during a period of one year ending within six months 

of the date of the filing of the petition. Tex. Fam. Code 

Ann. § 161.001(1)(F) (West 2002). With regard to this 

basis for termination, Jackie offered no evidence, other 

than to [**32] track the statutory language and assert 

that Lydia "failed to support the child in accordance with 

her ability, during the period of one year, ending within 

six months of the date of filing this petition." We hold 

that no legally sufficient evidence exists to support the 

trial court's finding that Lydia failed to support her child 

in accordance with her ability for a period of one year. 

Best Interest of the Child

 

Although a strong presumption exists that the best interest of a child is served by keeping conservatorship in the 

natural parent, this presumption may be overcome by

clear and convincing evidence of the parent's present 

unfitness. In re D.M., 58 S.W.3d at 814. The supreme 

court has listed several factors to be considered by a 

court in determining whether this presumption has been 

rebutted: (1) the desires of the child, (2) the present and 

future physical and emotional needs of the child, (3) the 

present and future emotional and physical danger to the 

child, (4) the parental abilities of the person seeking custody, (5) programs available to assist those persons in 

promoting the child's best interest, (6) plans for the child 

by those individuals [**33] or by the agency seeking 

custody, (7) the stability of the home or the proposed 

placement, (8) the acts or omissions of the parent that 

may indicate that the existing parent-child relationship is 

not appropriate, and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. In 

addition, a fact finder may infer that past conduct endangering the well being of a child may recur in the future if the child is returned to the parent. In re D.L.N., 

958 S.W.2d 934, 941 (Tex. App.--Waco 1997, pet. denied), disapproved on other grounds by In re J.F.C., 96 

S.W.3d 256, 46 Tex. Sup. Ct. J. 328, and In re C.H., 89 

S.W.3d 17, 45 Tex. Sup. Ct. J. 1000. 

Again, the only evidence Jackie provided regarding 

the child's best interest was her own testimony that she 

believed termination of Lydia's parental rights and adoption of the child by Thomas and Iris Cummins would be 

in the child's best interest. No specifics were provided 

with regard to any of the enumerated factors listed

above. And no evidence was adduced about the Cummins or their relationship with the child. We conclude 

that [*452] this testimony amounts to no evidence of 

the best interest of the child. 

 [**34] CONCLUSION 

We conclude that although the citation failed to include Jackie's name as the petitioner, the record reveals 

that Lydia was properly served. We therefore overrule 

Lydia's first issue. Because we hold that the evidence is 

legally insufficient to support any of the bases relied on 

by the trial court in terminating Lydia's parental rights, 

we sustain Lydia's third and fourth issues. 5

 Generally, 

when a legal insufficiency point is sustained, the reviewing court renders judgment in favor of the party 

bringing the point of error. Heine, 835 S.W.2d at 86; 

Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 821 (Tex. 

App.--San Antonio 1999, no pet.). When the interests of 

justice require a new trial for further development of the 

facts, however, the case can be remanded. Tex. R. App. 

P. 43.3(b); Flores, 5 S.W.3d at 821. While we recognize 

the child's interest in having a quick and final resolution 

of this case and the need for stability in the child's life, 

we believe that because this case presented us with an 

issue of first impression in Texas and because we have 

announced a new rule in addressing that issue, the interests [**35] of justice are better served by remanding 

this case for further proceedings. It is also in the child's 

best interest for the trial court to fully develop the evidence and render a judgment following consideration of 

the evidence. Accordingly, we reverse the judgment of 

the trial court and remand this case for further proceedings consistent with this opinion. 

5 Because we are reversing for legally insufficient evidence, we do not reach Lydia's remaining issues. See Tex. R. App. P. 47.1 (opinion 

should be as brief as practicable and address 

every issue necessary to final disposition of appeal). 

David Puryear, Justice 
Page 1 

Caution 

As of: Mar 30, 2015 

Gregorio ZAMARRIPA Appellant, v. Bianca SIFUENTES and Charles RAKOSKY 

Appellees. 

Appeal No. 04-96-00145-CV 

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO 

929 S.W.2d 655; 1996 Tex. App. LEXIS 4071

September 11, 1996, Delivered 

September 11, 1996, Filed 

PRIOR HISTORY: [**1] Appeal from the 

166th District Court of Bexar County. Trial Court No. 

94-CI-09068. Honorable Andy Mireles, Judge Presiding. 

DISPOSITION: DISMISSED FOR WANT OF JURISDICTION 

COUNSEL: FOR APPELLANT: Joe R. Greenhill, Jr., 

Craig Andrew Nevelow, WRIGHT & GREENHILL, 

P.C., Austin, TX. 

FOR APPELLEES: Bruce J. Mery, LAW OFFICES OF 

BRUCE J. MERY, Karl E. Hays, LAW OFFICES OF 

KARL E. HAYS, San Antonio, TX. 

JUDGES: Opinion By: Catherine Stone, Justice. Sitting: 

Tom Rickhoff, Justice, Catherine Stone, Justice, Phil 

Hardberger, Justice. 

OPINION BY: CATHERINE STONE 

OPINION 

 [*656] The question presented in this appeal is 

whether the default judgment entered was interlocutory 

or final. We hold that the judgment entered in this case 

was interlocutory and we dismiss the appeal for want of 

jurisdiction. 

Procedural History 

Appellees, as plaintiffs below, took a default judgment on a personal injury claim on August 19, 1994. At 

some point that same day, appellant's counsel filed an 

answer to the petition. Thereafter, both sides engaged in 

written discovery and settlement negotiations. Appellant's counsel, however, did not learn that a default 

judgment had been taken in the case until [**2] April of 

1995, whereupon he filed a motion to reconsider the default judgment. The trial court denied the motion to reconsider on the ground its plenary power in this case had 

expired, and defendant thereafter appealed. 

Upon examination of the transcript, we questioned 

whether our jurisdiction had been invoked. The parties 

agree that the case must be dismissed for want of jurisdiction, but disagree on the grounds for the dismissal. 

Appellant argues that the default judgment is interlocutory and that the appeal should be dismissed for failure to 

bring a final appealable judgment. Appellees argue that 

the default judgment was final in 1994 and that this appeal should be dismissed as untimely filed. 

The Finality Issue

 

A judgment must dispose of all parties and all issues 

before the trial court in order for it to be considered final 

and appealable. [*657] Park Place Hosp. v. Estate of 

Milo, 909 S.W.2d 508, 510 (Tex. 1995). In contrast to a 

judgment entered following a trial on the merits, a de-
Page 2 

929 S.W.2d 655, *; 1996 Tex. App. LEXIS 4071, ** 

fault judgment carries no presumption of finality. See 

Houston Health Clubs v. First Court of Appeals, 722

S.W.2d 692, 693 (Tex. 1986). To determine an issue of 

finality [**3] we are directed to divine the intention of 

the trial court "from the language of the decree and the 

record as a whole, aided on occasion by the conduct of 

the parties." Continental Airlines, Inc. v. Kiefer, 920 

S.W.2d 274, 277 (Tex. 1996) (quoting 5 RAY W. 

MCDONALD, TEXAS CIVIL PRACTICE § 27:4[a] at 

7 (John S. Covell, ed., 1992 ed.)). 

 

The default judgment does not dispose of the prejudgment interest claim pled in plaintiff's petition. The judgment is completely silent on prejudgment interest and 

does not contain a Mother Hubbard clause. Appellees

argue that these omissions do not render the judgment 

interlocutory because the awarding of prejudgment interest is mandatory in personal injury cases. See TEX. 

REV. CIV. STAT. ANN. art. 5069-1.05, § 6(a) (Vernon

Supp. 1996) ("Judgments in ... personal injury ... cases 

must include prejudgment interest."); Sisters of Charity 

v. Dunsmoor, 832 S.W.2d 112, 116 (Tex. App.--Austin 

1992, writ denied) ( § 6 amendment codified, modified, 

and overturned portions of Cavnar v. Quality Control 

Parking, Inc., 696 S.W.2d 549 (Tex. 1985)). They seek to 

distinguish the supreme court's 1982 opinion in Hunt Oil 

Co. v. Moore [**4] on two grounds -- it is not a personal injury case and it was rendered prior to the legislature's codification of mandatory prejudgment interest in 

1987. See Hunt Oil Co. v. Moore, 639 S.W.2d 459, 460 

(Tex. 1982). It is clear that the court found the judgment 

in Hunt Oil to be interlocutory for two independent reasons. The summary judgment called for an accounting to 

be rendered at a future date and it did not address

Moore's claim for prejudgment interest. Id. at 460. Either 

reason would render the judgment interlocutory. 

Appellees urge us to treat a mandatory award of 

prejudgment interest in the same manner post-judgment 

interest is treated. See Staff Industries v. Hallmark Contracting, 846 S.W.2d 542, 551 (Tex. App.--Corpus Christi 1993, no writ) (post-judgment interest recoverable 

whether or not specifically awarded in judgment). This 

rationale is based on the fact that the calculation of 

post-judgment interest is purely a ministerial function. 

The amount of actual damages and the date of the judgment are reflected in the judgment itself and the method 

of calculating interest is set by statute. See TEX. REV. 

CIV. STAT. ANN. art. 5069-1.05, § 2. Although [**5] 

appellees cite no case law for support, the argument is 

tempting because the statute provides that the rate of 

prejudgment interest "shall be the same as the rate of 

postjudgment interest at the time of judgment." Id., § 

6(g). 

The judgment, however, must be certain, so that it 

can be enforced by writ of execution. Ministerial officers 

must be able to carry the judgment into execution without having to ascertain any additional facts. See H.E. 

Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 680 (Tex. 

App.--Corpus Christi 1991, writ denied). The statute 

which mandates prejudgment interest in wrongful death, 

personal injury, and property damage cases also provides 

for a tolling period during the time when a settlement 

offer is pending. See id., § 6(b)-(f). The tolling provisions of § 6 (b) and (c) require the court to compare the 

amount of the settlement offer to the amount of judgment. They also require exact information on the period 

of time the settlement offer was pending. The record 

reflects that written settlement offers were exchanged by 

the parties on more than one occasion prior to the entry 

of the default judgment. Because the pending dates and 

amounts of such [**6] offers are not clear as part of the 

record, it is no mere ministerial act to calculate prejudgment interest. Taking these provisions into consideration, 

we are unable to ascertain from the judgment when prejudgment interest would begin to accrue. 1

 [*658] The 

calculation of prejudgment interest involves factual issues which remain unresolved by the default judgment. 

1 Appellant argues that appellees have not pled 

prejudgment interest under the statutory authority 

of Section 6 of Article 5069-1.05; rather, appellees seek interest based upon a calculation beginning six months from date of occurrence as prescribed in Cavnar. Regardless of the pleading deficiencies presented in this cause, the exclusive 

means of seeking prejudgment interest in a personal injury case is now found in TEX. REV. 

CIV. STAT. ANN. art. 5069-1.05, § 6 

Appellees' counsel stated at the hearing on the motion for new trial that their petition only requests prejudgment interest in their prayer for relief. It is argued 

that because [**7] counsel did not put on evidence of 

prejudgment interest at the earlier hearing at which the 

default judgment was granted and the judgment does not 

grant prejudgment interest, that the judgment is somehow final. That sounds like appellees are attempting to 

abandon their claim for prejudgment interest. For purposes of finality on a default judgment, however, one 

cannot trigger appellate timetables unilaterally. As noted 

in Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 

(Tex. 1995), "The appellate timetable does not commence to run other than by signed, written order, even 

when the signing of such an order is purely ministerial." 

The fact that appellees did not produce evidence at the 

hearing on default does not allow us to presume waiver 

or abandonment because there was no conventional trial 

on the merits. See Strut Cam Dimensions, Inc. v. Sutton, 

896 S.W.2d 799, 801 (Tex. App.--Corpus Christi 1995, 
Page 3 

929 S.W.2d 655, *; 1996 Tex. App. LEXIS 4071, ** 

writ denied) (presumption of finality only applies when 

conventional trial actually conducted); H.E. Butt Grocery 

Co. v. Bay, Inc., 808 S.W.2d at 680 (no presumption of 

finality in default judgment). If appellees are attempting 

to abandon prejudgment interest, it is not [**8] clear 

when the abandonment occurred. See Rosedale Partners 

v. 131 Judicial District Court, 869 S.W.2d 643, 644 

(Tex. App.--San Antonio 1994, orig. proceeding). As in 

Rosedale Partners, the record before us does not contain 

any amended petition deleting the claim for prejudgment 

interest, an affidavit explaining when the claim was 

abandoned, or any other evidence indicating an intent to 

abandon the remaining claim for prejudgment interest. 

As there is no presumption of finality, we can only conclude that the issue of prejudgment interest remains 

pending and the default judgment in interlocutory. We 

find it indistinguishable from Hunt Oil Co. v. Moore, 639 

S.W.2d 459, 460 (Tex. 1982). 

Lastly, the conduct of the parties led the trial court 

to question whether it intended the default judgment to 

be final. At the hearing on the new trial motion, counsel 

for appellees admitted to the trial court that after he took 

the default judgment he learned that appellant was represented by counsel who had filed an answer the same 

day judgment was taken. They engaged in settlement 

discussions and written discovery over the next eight 

months. The discovery involved standard questions concerned [**9] with liability and damages as opposed to 

post-judgment discovery. Appellees' counsel never discussed these issues with appellant's counsel in the context of the default judgment he had taken, in fact, he 

never mentioned the judgment at all. Appellees' counsel 

admitted to the trial court he did not discuss it because he 

had not determined for himself whether the answer was 

filed prior to or after the default was taken. The parties 

clearly acted as though the judgment was interlocutory. 

Conclusion

 We hold that the default judgment is interlocutory

because the issue of prejudgment interest remains unresolved. The trial court erred when it denied appellant's 

motion for new trial on the default judgment for want of 

jurisdiction. Our holding does not intend to speak to the 

merits of the motion for new trial. That is something that 

is within the discretion of the trial court. We only declare 

that the trial court has jurisdiction to consider the motion 

for new trial on the merits. 

This appeal is dismissed for want of jurisdiction. 

CATHERINE STONE 

JUSTICE 
| | Neutral

As of: April 7, 2015 6:06 PM EDT

Zepeda v. Giraud

Court of Appeals of Texas, Fourth District, San Antonio

June 29, 1994, Delivered ; June 29, 1994, Filed

Appeal No. 04-93-00378-CV

Reporter

880 S.W.2d 833; 1994 Tex. App. LEXIS 1983

Robert L. ZEPEDA, Appellant, v. Eugene L. GIRAUD &

Margery F. GIRAUD, Appellants.

Subsequent History: [**1] Motion for Rehearing

Denied July 27, 1994.

Prior History: Appeal from the County Court at Law

No. 4 of Bexar County. Trial Court No. 207,755-A.

Honorable H. Paul Canales, Judge Presiding

Disposition: DISMISSED FOR WANT OF

JURISDICTION

Core Terms

writ of error, default judgment, abandon, ordinary

appeal, fail to file, perfecting an appeal, perfected, lack

of jurisdiction, court of appeals, appeal bond, trial court,

pursued

Case Summary

Procedural Posture

Appellant sought review by writ of error of a default

judgment from the County Court at Law No. 4 of Bexar

County (Texas), rendered against appellant and in favor

of appellees in a civil suit. Appellees alleged in a

counterpoint of error that the appellate court lacked

jurisdiction to hear the appeal.

Overview

A default judgment was entered in favor of appellees in

a civil case in which the judgment or amount in

controversy exceeded $ 100, exclusive of interest and

costs.Appellant filed an appeal bond and thus perfected

an ordinary appeal from the default judgment. Because

appellant failed to file a transcript and statement of facts

on time and his motion for extension to file the record

was untimely, the ordinary appeal was dismissed.

Defendant subsequently perfected an appeal by writ of

error. Appellees alleged in a counterpoint that the court

lacked jurisdiction to hear appellant's challenge by writ

of error because appellant had already pursued an

ordinary appeal from the same default judgment. An

appeal or writ of error to the court of appeals from a final

judgment of a district or county court was permitted

under Tex. Civ. Prac. & Rem. Code Ann. § 51.012

(1986). The code did not allow for both an appeal and a

writ of error. Because appellant had not abandoned his

prior appeal, he was not entitled to pursue a writ of error

pursuant to Tex. R. App. P. 5(b)(4). Therefore, the

appeal was dismissed for want of jurisdiction.

Outcome

An appeal by writ of error from a default judgment in a

civil suit was dismissed for want of jurisdiction because

appellant had previously perfected an ordinary appeal,

which was dismissed by the court and not abandoned

by appellant.

LexisNexis® Headnotes

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > General Overview

HN1 The right to appeal by writ of error to the court of

appeals is provided by Tex. Civ. Prac. & Rem. Code

Ann. § 51.012 (1986), which provides that in a civil case

in which the judgment or amount in controversy exceeds

$ 100, exclusive of interest and costs, a person may

take an appeal or writ of error to the court of appeals

from a final judgment of the district court or county court.

That code provision also establishes the right to take an

ordinary appeal.

Civil Procedure > Appeals > Reviewability of Lower Court

Decisions > General Overview
HN2 A litigant has the right to either an ordinary appeal

or an appeal by writ of error but not both.

Civil Procedure > ... > Pretrial Judgments > Nonsuits >

Voluntary Nonsuits

Civil Procedure > Remedies > Writs > General Overview

HN3 A party may abandon an appeal and sue out a writ

of error from the same judgment.

Civil Procedure > Judgments > Pretrial Judgments >

General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default &

Default Judgments > Default Judgments

Civil Procedure > Remedies > Writs > General Overview

Civil Procedure > Appeals > Appellate Jurisdiction >

General Overview

Civil Procedure > Appeals > Notice of Appeal

Governments > Legislation > Statutory Remedies & Rights

HN4 A party suffering a default judgment may perfect

an appeal, or abandon it and pursue his statutory rights

under the writ of error.

Counsel: For Appellant: Pepos S. Dounson, 2109 San

Pedro Avenue, San Antonio, TX 78212.

For Appellees: David L. Willis, JACOBS, WILLIS &

WILKINS, 105 S. St. Mary's St., Suite 2300, San

Antonio, TX 78205.

Judges: Sitting: Alfonso Chapa, Chief Justice, Tom

Rickhoff, Justice, Phil Hardberger, Justice

Opinion by: PHIL HARDBERGER

Opinion

[*834] OPINION

Opinion by: Phil Hardberger, Justice

Robert Zepeda seeks review by writ of error of a default

judgment rendered against him and in favor of Eugene

and Margery Giraud. In one counterpoint of error,

Appellees allege that this court lacks jurisdiction to hear

Zepeda's appeal by writ of error because he has already

pursued an ordinary appeal from the same default

judgment.

The trial court rendered the default judgment on

December 14, 1992. Zepeda timely perfected an

ordinary appeal from the default judgment by filing an

appeal bond on January 13, 1993. This court dismissed

Zepeda's appeal because he failed to file [**2] his

transcript and statement of facts on time and his motion

for extension to file the record was also untimely. Zepeda

v. Giraud, No. 04-93-00148-CV (Tex.App.--SanAntonio,

March 24, 1993) (not published).

On April 26, 1993, Zepeda filed his petition for writ of

error, bond, designation for transcript and request for

written statement of facts in the trial court thus perfecting

the appeal by writ of error. Zepeda now asks this court

to review the default judgment by writ of error.

HN1 The right to appeal by writ of error to the court of

appeals is provided by Civil practice and Remedies

Code section 51.012 which provides:

In a civil case in which the judgment or amount

in controversy exceeds $ 100, exclusive of

interest and costs, a person may take an appeal

or writ of error to the court of appeals from a

final judgment of the district court or county

court.

TEX. CIV. PRAC. & REM. CODEANN. § 51.012 (Vernon

1986) (emphasis supplied). This code provision also

establishes the right to take an ordinary appeal. It is

clear that the statute establishes the right to take either

an ordinary appeal or an appeal by writ of error. HN2 A

litigant has the right to either an [**3] ordinary appeal or

an appeal by writ of error but not both. Id.

This court has previously stated that HN3 a party may

abandon an appeal and sue out a writ of error from the

same judgment. Alejo v. Pellegrin, 616 S.W.2d 331, 333

(Tex. Civ. App.--San Antonio 1981, writ dism'd). The

present case does not involve an abandoned appeal.

Zepeda properly perfected his first appeal but failed to

file his record on time and then compounded the error

by failing to file his motion for extension of time within

the deadline set out in Texas Rule of Appellate

Procedure 54(c). Zepeda's appeal was dismissed for

failure to file his record in accordance with the Texas

Rules of Appellate Procedure. Zepeda did not abandon

his appeal, in fact Zepeda argued that his late filed

transcript should be considered pursuant to Texas Rule

880 S.W.2d 833, *833; 1994 Tex. App. LEXIS 1983, **1

Page 2 of 3
of Appellate Procedure 5(b)(4). Therefore, the rule

concerning abandoned appeals does not apply.

[*835] In Houtex Managing General Agency, Inc. v.

Hardcastle, 735 S.W.2d 520 (Tex. App.--Houston [1st

Dist.] 1987, writ ref'd n.r.e.), the court held that an

appellant's attempted direct appeal from a default

judgment, which was dismissed for lack of jurisdiction

[**4] because the appeal bond was filed late, did not

constitute an appeal so as to deprive the appellate court

of jurisdiction to subsequently review the default

judgment by writ of error. The Houtex court stated that

"it is well settled that HN4 a party suffering a default

judgment may perfect an appeal, or abandon it and

pursue his statutory rights under the writ of error." Id. at

521.

The instant case involves neither an abandoned appeal

nor a failure to perfect an appeal. Zepeda perfected his

appeal and pursued the appeal, albeit unsuccessfully,

to the end. Zepeda is not entitled to a second bite at the

apple.

This appeal is dismissed for want of jurisdiction.

PHIL HARDBERGER

JUSTICE

880 S.W.2d 833, *834; 1994 Tex. App. LEXIS 1983, **3

Page 3 of 3
Page 1 

3 of 3 DOCUMENTS 

Positive 

As of: Mar 30, 2015 

YUMIN ZHAO, Appellant v. LONE STAR ENGINE INSTALLATION CENTER, 

INC., Appellee 

No. 05-09-01055-CV 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS 

2009 Tex. App. LEXIS 7767

October 6, 2009, Opinion Filed 

SUBSEQUENT HISTORY: Rehearing overruled by 

Zhao v. Lone Star Engine Installation Ctr., Inc., 2009 

Tex. App. LEXIS 8798 (Tex. App. Dallas, Nov. 5, 2009)

Petition for review denied by Yumin Zhao v. Lone Star 

Engine Installation Ctr., Inc., 2010 Tex. LEXIS 290

(Tex., Apr. 9, 2010)

US Supreme Court certiorari denied by Yumin Zhao v. 

Lone Star Engine Installation Ctr., 2010 U.S. LEXIS

8593 (U.S., Nov. 1, 2010)

PRIOR HISTORY: [*1] 

 On Appeal from the 134th Judicial District Court, 

Dallas County, Texas. Trial Court Cause No. 08-10266. 

COUNSEL: For APPELLANT: Yumin Zhao, Richardson, TX. 

For APPELLEE: James N. Apostle, Dallas, TX. 

JUDGES: Before Justices Wright, Richter, and Fillmore. 

OPINION 

MEMORANDUM OPINION 

The Court has before it appellant's September 22, 

2009 motion to extend time to file his notice of appeal 

and appellee's response in opposition to the motion. For 

the reasons set forth below, we deny the extension motion and dismiss the appeal. 

The trial court's judgment was signed on May 20, 

2009 and appellant filed a timely motion for new trial. 

Therefore, his notice of appeal was due by August 18, 

2009. See TEX. R. APP. P. 26.1(a). The notice of appeal 

was filed on September 2, 2009, within the fifteen-day 

period provided by rule 26.3. See TEX. R. APP. P. 

26.3(a). Therefore, we directed appellant to file a motion

to extend time to file his notice of appeal setting forth a 

reasonable explanation for the need of the extension. See

TEX. R. APP. P. 10.5(b), 26.3(b); Verburgt v. Dorner, 

959 S.W.2d 615 (Tex. 1997). 

In his extension motion, appellant asserted, "Plaintiff's motion for new trial was timely filed on June 19, 

2009. The hear [sic] date of motion for new trial was set 

on Sept. 2nd, 2009; Therefore whether to appeal [*2] 

only could be determined after the hearing of motion for 

new trial." Appellee responded that appellant did not 

provide a reasonable explanation because the motion for 

new trial had already been overruled by operation of law 

on August 3, 2009, and appellant did not file his notice 

of appeal until the 105th day after the trial court's judgment was signed. We agree that appellant has not provided a reasonable explanation for the need of the extension. 

The Texas Supreme Court has defined "reasonable 

explanation" to mean "'any plausible statement of circumstance indicating that failure to file within the [required] period was not deliberated or intentional, but was 
Page 2 

2009 Tex. App. LEXIS 7767, * 

the result of inadvertence, mistake, or mischance." Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 

1989) (internal citation omitted). "Any conduct short of

deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. . . ." Id. at 670. 

Texas courts have rejected as unreasonable explanations that show a defendant's conscious or strategic decision to wait to file a notice of appeal, reasoning the explanations did not show inadvertence, mistake, or mischance. See, e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App.--Houston 

[14th Dist.] 2002, no pet.) [*3] (holding unreasonable 

appellant's explanation he failed to file notice of appeal 

until he found attorney to represent him on appeal at little or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 

(Tex. App.--Amarillo 2000, no pet.) (holding unreasonable explanation that when State disclosed, after expiration of time for filing notice of appeal, its intent to indict 

appellant for other crimes, appellant decided to appeal to 

preserve eligibility for probation in upcoming trials); 

Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex. 

App.--Amarillo 1999, no pet.) (op. on reh'g) (holding 

unreasonable explanations counsel miscalculated due

date for filing notice of appeal when he failed to file notice of appeal on miscalculated date and counsel's preoccupation with other cases without detailed explanation 

of complexities and relevant deadlines of other cases); 

Weik v. Second Baptist Church of Houston, 988 S.W.2d 

437, 439 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (holding unreasonable appellant's explanation that

his lawyer told him if he appealed case while trial court 

still had authority to reinstate case, trial court would reinstate case and appellant would have difficult time 

prosecuting [*4] claim because of trial court's displeasure with appellant). This Court has likewise rejected as 

unreasonable explanations that showed an appellant's 

decision to wait to file a notice of appeal was not due to 

inadvertence, mistake, or mischance, but was due to a 

conscious decision to ignore the appellate timetable in 

favor of the trial court's jurisdictional timetable. See 

Crossland v. Crossland, No. 05-06-00228-CV, 2006 Tex. 

App. LEXIS 2881, 2006 WL 925032 (Tex. App.--Dallas 

Apr. 11, 2006, no pet.) (mem. op.) (per curiam). 

Because appellant's explanation in this case shows 

he was aware of the deadline for filing his notice of appeal, but consciously ignored the deadline in favor of 

waiting for a ruling on his motion for new trial, we conclude appellant has not provided a reasonable explanation for the need of the extension. We deny his motion to 

extend time to file his notice of appeal. 

We dismiss the appeal for want of jurisdiction. 

PER CURIAM 
Tex. R. App. P. Rule 4

 Page 13 of 13 

Tex. R. App. P. Rule 4

This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION 

ONE. GENERAL PROVISIONS

Rule 4 Time and Notice Provisions

4.2 No Notice of Trial Court's Judgment in Civil Case. 

(a) Additional Time to File Documents. 

(1) In General. --If a party affected by a judgment or other appealable order has not - within 20 days 

after the judgment or order was signed - either received the notice required by Texas Rule of Civil 

Procedure 306a.3 or acquired actual knowledge of the signing, then a period that, under these rules, 

runs from the signing will begin for that party on the earlier of the date when the party receives notice 

or acquires actual knowledge of the signing. But in no event may the period begin more than 90 

days after the judgment or order was signed. 

(2) Exception for Restricted Appeal. --Subparagraph (1) does not extend the time for perfecting a 

restricted appeal. 

(b) Procedure to Gain Additional Time. --The procedure to gain additional time is governed by Texas 

Rule of Civil Procedure 306a.5. 

(c) The Court's Order. --After hearing the motion, the trial court must sign a written order that finds the 

date when the party or the party's attorney first either received notice or acquired actual knowledge 

that the judgment or order was signed. 

Texas Rules

Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Texas Rules 

Copyright (c) 2015 by Matthew Bender & Company, Inc. 

a member of the LexisNexis Group. 

All rights reserved. 

*** This document is current through February 4, 2015 *** 

STATE RULES 

TEXAS RULES OF CIVIL PROCEDURE 

PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS 

SECTION 2. Institution of Suit 

Tex. R. Civ. P. 26 (2015) 

Rule 26 Clerk's Court Docket 

 Each clerk shall also keep a court docket in a permanent record that shall include the number of the case and the 

names of the parties, the names of the attorneys, the nature of the action, the pleas, the motions, and the ruling of the 

court as made. 
 

Tex. R. App. P. Rule 26

This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION 

TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS

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;

(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 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). 

History

Amended by Texas Court of Criminal Appeals, Misc. Docket No. 08-102, effective September 1, 2008; Amended by 

Texas Supreme Court, Misc. Docket No. 08-9115 and Texas Court of Criminal Appeals, Misc. Docket No. 08-103, 

effective September 1, 2008. 
Tex. R. App. P. Rule 26

 Page 154 of 154 

Annotations 

Texas Rules

Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Tex. R. App. P. Rule 30

 Page 48 of 48 

Tex. R. App. P. Rule 30

This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION 

TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS

Rule 30 Restricted Appeal 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.

Annotations

Notes

PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 145, Overview of the Appellate Process; Ch. 151, 

Appellate Proceedings in Supreme Court; Ch. 154, Restricted Appeals.

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.

Texas Rules

Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Tex. Civ. Prac. & Rem. Code § 38.004

 Page 15 of 15 

Tex. Civ. Prac. & Rem. Code § 38.004

This document is current through the 2013 3rd Called Session 

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL, 

JUDGMENT, AND APPEAL > SUBTITLE C. JUDGMENTS > CHAPTER 38. ATTORNEY'S FEES

§ 38.004. Judicial Notice

The court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file 

without receiving further evidence in:

(1) a proceeding before the court; or

(2) a jury case in which the amount of attorney's fees is submitted to the court by agreement. 

History

Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985. 

Annotations 

LexisNexis ® Texas Annotated Statutes

Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
Texas Rules 

Copyright (c) 2015 by Matthew Bender & Company, Inc. 

a member of the LexisNexis Group. 

All rights reserved. 

*** This document is current through February 4, 2015 *** 

STATE RULES 

TEXAS RULES OF CIVIL PROCEDURE 

PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS 

SECTION 5. Citation 

Tex. R. Civ. P. 99 (2015) 

Rule 99 Issuance and Form of Citation 

 a. Issuance. --Upon the filing of the petition, the clerk, when requested, must forthwith issue a citation and 

deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for 

obtaining service of the citation and a copy of the petition. Upon request, separate or additional citations shall be 

issued by the clerk. The clerk must retain a copy of the citation in the court's file. 

b. Form. --The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court, 

(3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of 

citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and 

address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules 

require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk, 

and (12) shall notify the defendant that in case of failure of defendant to file and answer, judgment by default may 

be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to 

the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date 

of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c 

of this rule. 

c. Notice. --The citation shall include the following notice to the defendant: "You have been sued. You may 

employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 

10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and 

petition, a default judgment may be taken against you." 

d. Copies. --The party filing any pleading upon which citation is to be issued and served shall furnish the clerk 

with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so 

furnished the clerk shall make no charge for the copies. 

HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 11-9250, effective January 1, 2012. 
Tex. R. Civ. P. 106

 Page 24 of 24 

Tex. R. Civ. P. 106

This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. 

RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 5. Citation

Rule 106 Method of Service

(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person 

authorized by Rule 103 by

(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed 

thereon with a copy of the petition attached thereto, or

(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation 

with a copy of the petition attached thereto. 

(b) Upon motion supported by affidavit stating the location of the defendant's usual place of business or 

usual place of abode or other place where the defendant can probably be found and stating specifically

the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in 

such affidavit but has not been successful, the court may authorize service

(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years 

of age at the location specified in such affidavit, or

(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably 

effective to give the defendant notice of the suit.

History

SOURCE: 

Art. 2026.

Change: The officer is directed to note upon the copy of the citation, which he delivers to the defendant, the date of 

delivery. He delivers a copy of the petition in all cases.

Change by amendment effective January 1, 1976: Service "by registered or certified mail" is authorized in certain 

instances.

Change by amendment effective January 1, 1978: Subdivisions (b) and (e) are new. The rule is rewritten.

Change by amendment effective January 1, 1981: The rule is reorganized to clarify its meaning. Alternate methods 

of service are authorized if either (a)(1) or (a)(2) are tried without success. Both methods are not required.

Change by amendment effective January 1, 1988: Conforms to amendment to Rule 103.

PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 31, Service on Residents; Ch. 32, Personal 

Jurisdiction and Service on Nonresidents.

 See also Civil Practice & Remedies Code §§ 17.021--17.025. 

Annotations 

Texas Rules

Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Texas Rules 

Copyright (c) 2015 by Matthew Bender & Company, Inc. 

a member of the LexisNexis Group. 

All rights reserved. 

*** This document is current through February 4, 2015 *** 

STATE RULES 

TEXAS RULES OF CIVIL PROCEDURE 

PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS 

SECTION 5. Citation 

Tex. R. Civ. P. 107 (2015) 

Rule 107 Return of Service 

 (a) The officer or authorized person executing the citation must complete a return of service. The return may, but 

need not, be endorsed on or attached to the citation. 

(b) The return, together with any document to which it is attached, must include the following information: 

 (1) the cause number and case name; 

 (2) the court in which the case is filed; 

 (3) a description of what was served; 

 (4) the date and time the process was received for service; 

 (5) the person or entity served; 

 (6) the address served; 

 (7) the date of service or attempted service; 

 (8) the manner of delivery of service or attempted service; 

 (9) the name of the person who served or attempted to serve the process; 

 (10) if the person named in (9) is a process server certified under order of the Supreme Court, his or her 

identification number and the expiration date of his or her certification; and 

 (11) any other information required by rule or law. 

(c) When the citation was served by registered or certified mail as authorized by Rule 106, the return by the 

officer or authorized person must also contain the return receipt with the addressee's signature. 

(d) When the officer or authorized person has not served the citation, the return shall show the diligence used by 

the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is 

to be found, if ascertainable. 

(e) The officer or authorized person who serves or attempts to serve a citation must sign the return. If the return 

is signed by a person other than a sheriff, constable, or the clerk of the court, the return must either be verified or be 

signed under penalty of perjury. A return signed under penalty of perjury must contain the statement below in 

substantially the following form: 

"My name is , my date of birth is 

 

 (First) (Middle) (Last) 

 

 

 

 
 , and my address is , , , , and 

 

 (Street) (City) (State)(Zip Code) 

 

 

 

 

 . I declare under penalty of perjury that the foregoing is true and 

correct. 

 

 (Country) 

 

 

 

 

 Executed in County, State of , on the day of , 

 . 

 

 (Month) (Year) 

 

 

 

 

 

 

 Declarant" 

(f) Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be 

made in the manner ordered by the court. 

(g) The return and any document to which it is attached must be filed with the court and may be filed 

electronically or by facsimile, if those methods of filing are available. 

(h) No default judgment shall be granted in any cause until proof of service as provided by this rule or by Rules 

108 or 108a, or as ordered by the court in the event citation is executed by an alternative method under Rule 106, 

shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment. 

HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 11-9250, effective January 1, 2012. 
Texas Rules 

Copyright (c) 2015 by Matthew Bender & Company, Inc. 

a member of the LexisNexis Group. 

All rights reserved. 

*** This document is current through February 4, 2015 *** 

STATE RULES 

TEXAS RULES OF CIVIL PROCEDURE 

PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS 

SECTION 11. Trial of Causes 

H. JUDGMENTS 

Tex. R. Civ. P. 306a (2015) 

Rule 306a Periods to Run from Signing of Judgment 

 1. Beginning of Periods. --The date of judgment or order is signed as shown of record shall determine the 

beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, 

modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules 

authorize a party to file within such periods including, but not limited to, motions for new trial, motions to modify 

judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment and requests 

for findings of fact and conclusions of law; but this rule shall not determine what constitutes rendition of a judgment 

or order for any other purpose. 

2. Date to Be Shown. --Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, 

decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated 

therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of 

the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not 

invalidate any judgment or order. 

3. Notice of Judgment. --When the final judgment or other appealable order is signed, the clerk of the court 

shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment 

or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in 

paragraph (1) of this rule, except as provided in paragraph (4). 

4. No Notice of Judgment. --If within twenty days after the judgment or other appealable order is signed, a 

party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor 

acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) 

shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the 

signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original 

judgment or other appealable order was signed. 

5. Motion, Notice and Hearing. --In order to establish the application of paragraph (4) of this rule, the party 

adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or 

his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this 

date was more than twenty days after the judgment was signed. 

6. Nunc Pro Tunc Order. --When a corrected judgment has been signed after expiration of the court's plenary 

power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing 

the corrected judgment with respect of any complaint that would not be applicable to the original document. 

7. When Process Served by Publication. --With respect to a motion for new trial filed more than thirty days 

after the judgment was signed pursuant to Rule 329 when process has been served by publication, the periods 

provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion. 
Tex. R. Civ. P. 683

 Page 29 of 29 

Tex. R. Civ. P. 683

This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART VI. 

RULES RELATING TO ANCILLARY PROCEEDINGS > SECTION 5. Injunctions

Rule 683 Form and Scope of Injunction or Restraining Order

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be 

specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act 

or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, 

employees, and attorneys, and upon those persons in active concert or participation with them who receive actual 

notice of the order by personal service or otherwise.

Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect 

to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial.

Annotations

Notes

SOURCE: Federal Rule 65(d), unchanged.

 Change by amendment effective April 1, 1984: The last paragraph is added.

PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 50, Injunction.

 See also Civil Practice & Remedies Code §§ 65.001--65.045.

Texas Rules

Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.