NO. 12-13-00175-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GUY SPARKMAN, 

APPELLANT

V.

MICROSOFT CORPORATION, 

SUPPORTSPACE, INC. AS AGENT 

FOR MICROSOFT CORP., OMAR 

FRANCO, AS AGENT FOR

MICROSOFT CORP. AND ROBERT 

DOE, AS AGENT FOR MICROSOFT 

CORP. AND KAREN PHILLIPS,

APPELLEES

§

§

§

APPEAL FROM THE 

COUNTY COURT AT LAW #2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Guy Sparkman appeals the trial court’s order dismissing his suit for his failure to furnish 

the $7,500 security he was ordered to pay in conjunction with the court’s order in which he was 

found to be a vexatious litigant. Sparkman raises six issues on appeal. We affirm.

BACKGROUND

Sparkman believes that Microsoft lured him to its website by promising to remove what 

he considers to be a Microsoft created "scareware" virus known as “Windows XP Recovery” 

from his computer. According to Sparkman, after discovering the virus, he used an instant 

messaging service to contact a Microsoft representative, who told him that he could remove the 

virus if Sparkman granted him remote access to Sparkman’s computer. Sparkman alleges that he 

downloaded the program and that the Microsoft representative remotely removed, disabled, or 

rendered unusable many of the software programs and other features Sparkman had installed on 

his computer. According to Sparkman, he later contacted another representative, who was able 
2

to restore some of his software, but who told him that he should upgrade his 2002 version of 

Microsoft Office to the 2010 version. Sparkman believes that this course of conduct is part of a 

greater scheme on behalf of Microsoft to coerce its users into purchasing more updated versions 

of its software.

On March 20, 2012, Sparkman filed the instant suit seeking to recover actual and 

exemplary damages from Microsoft and others based on breach of contract, breach of covenants 

of good faith and fair dealing, fraud, and violations of the Texas Deceptive Trade Practices Act. 

Smith County Clerk Karen Phillips intervened in the case on June 18, 2012. 

On June 20, 2012, the Honorable Randall Lee Rogers of the County Court at Law 

Number 2 for Smith County, Texas, entered an order recusing himself because he had acted as 

the prosecuting attorney in a criminal matter involving Sparkman. The Honorable John Ovard, 

Presiding Judge of the First Administrative Judicial Region of Texas, assigned the Honorable 

Gene Knize, Senior Judge of the 40th Judicial District Court, to the case on July 17, 2012.

On September 17, 2013, Phillips filed a motion to have Sparkman declared to be a 

vexatious litigant pursuant to Texas Civil Practice and Remedies Code, Chapter 11. On 

September 27, 2012, Microsoft filed a similar motion. Sparkman responded to the motions. On 

January 8, 2013, the trial court conducted a hearing on these motions and provided the parties the 

opportunity to submit supplemental briefing prior to the court’s making its ruling on the motions. 

Phillips, Microsoft, and Sparkman each filed supplemental briefs.

On February 14, 2013, the trial court signed its order finding Sparkman to be a vexatious 

litigant. The trial court’s order further stated that (1) Sparkman was required to furnish $7,500 in 

security to the court within thirty days; (2) the matter was stayed until Sparkman furnished the 

security and court costs, and (3) the matter would be dismissed if the security was not timely 

furnished.

On April 2, 2013, Microsoft filed a motion to dismiss based on Sparkman’s failure to 

furnish the security as ordered. The matter was set for submission, and on May 2, 2013, the trial 

court signed an order granting Microsoft’s motion to dismiss. This appeal followed.

JUDGE KNIZE’S AUTHORITY TO ACT AS TRIAL JUDGE

In his first issue, Sparkman argues that Judge Knize has no valid authority to act in this 

case because (1) Judge Rogers’s recusal order, which led to his assignment, is “patently false and 
3

fraudulent” and (2) Judge Knize was not administered the oath required by the Texas 

Constitution and the Texas Government Code. Thus, Sparkman contends that the orders signed 

by Judge Knize are void.

Order of Recusal

Pursuant to Texas Rule of Civil Procedure 18b(2), a judge must recuse himself in

proceedings in which his impartiality might reasonably be questioned or where he has a personal 

bias or prejudice concerning the subject matter or a party. See TEX. R. CIV. P. 18b(b)(1), (2). No 

motion by either party is a prerequisite to the application of this rule. Dunn v. Cnty. of Dallas, 

794 S.W.2d 560, 562 (Tex. App.–Dallas 1990, no writ). Moreover, an order granting a motion to 

recuse is final and cannot be reviewed by appeal, mandamus, or otherwise. TEX. R. CIV. P.

18a(j)(1)(B). The rationale behind this “nonreviewability rule” is that a litigant cannot be 

harmed by having a case proceed before a judge who is qualified to hear it. See, e.g., Gall v. 

State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011). Therefore, we will not review Appellant’s 

issue challenging Judge Rogers’s decision to recuse himself.

Oath of Office for Judge Sitting by Assignment

We next consider Sparkman’s argument that Judge Knize was not administered the oath 

required by the Texas Constitution and the Texas Government Code. See TEX. CONST. ANN. art 

XVI, §1 (West Supp. 2014); TEX. GOV’T CODE ANN. 25.0017–.0018 (West 2004). It has long 

been a cardinal rule of appellate procedure in Texas that the appellate court must indulge every 

presumption in favor of the regularity of the proceedings and documents in the trial court. See 

Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d); see also 

Mortland v. Dripping Springs Indep. Sch. Dist., Nos. 03-02-00331-CV, 03-03-00003-CV, 2003 

WL 21705258, at *1 (Tex. App.–Austin 2003, pet. ref’d) (mem. op., not designated for 

publication). The presumption of regularity is a judicial construct that requires a reviewing 

court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of 

the trial court’s judgment. See Mortland, 2003 WL 21705258, at *1. Therefore, we must uphold 

the presumption of regularity of the judgment and the proceedings absent a showing to the 

contrary. See Murphy, 95 S.W.3d at 320. The burden is on the defendant to overcome this 

presumption. See id.

In the instant case, Sparkman has cited this court to no evidence that supports his 

contention that Judge Knize failed to take the oath required by the Texas Constitution and the 
4

Texas Government Code. Further, the record reveals that at no time during the proceedings in 

the trial court did Sparkman raise the issue or otherwise challenge Judge Knize’s authority to 

hear the case. See id. Therefore, based on the presumption in favor of the regularity of the trial 

court’s judgment and the proceedings, we conclude that Judge Knize had authority to act within 

the subject matter jurisdiction of the trial court. See Murphy, 95 S.W.3d at 319–20. 

Accordingly, we hold that the orders about which Sparkman complains are not void on these 

bases. 

Sparkman’s first issue is overruled.

BIAS OF TRIAL COURT JUDGE

In his second issue, Sparkman argues that Judge Knize demonstrated bias and prejudice 

against him and pro se litigants generally, and in so doing, violated his right to a fair trial. 

Sparkman contends that, as a result, all orders signed by Judge Knize are void.

As set forth previously, a judge must recuse himself in proceedings in which his 

impartiality might reasonably be questioned or where he has a personal bias or prejudice 

concerning the subject matter or a party. See TEX. R. CIV. P. 18b(b)(1), (2). However, recusal 

may be waived if it is not raised by a proper motion. See Barron v. State Atty. Gen., 108 S.W.3d 

379, 382 (Tex. App.–Tyler 2003, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex.

App.–Houston [1st Dist.] 1995, writ denied). The procedural requisites for recusal in Rule 18(a) 

are mandatory, and a party who fails to conform waives his right to complain of a judge’s failure 

to recuse himself. Barron, 108 S.W.3d at 382; Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex.

App.–Waco 2002, no pet.); Gill v. Tex. Dep’t of Criminal Justice, Institutional Div., 3 S.W.3d 

576, 579 (Tex. App.–Houston [1st Dist.] 1999, no pet.); see also TEX. R. APP. P. 33.1(a).

The provisions of Rule 18a obligating a trial judge to either recuse himself or refer the 

motion to the presiding judge of the administrative judicial district never come into play unless 

and until a formal timely, written, and verified motion to recuse is filed. Barron, 108 S.W.3d at 

382. In the instant case, if Sparkman believed Judge Knize held some bias or prejudice against 

him, it was incumbent upon him to file a motion to recuse under Rule 18a. Because he did not 

do so, he has failed to preserve any error concerning any bias or prejudice on the part of Judge 

Knize. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982) (failure by 

trial judge to recuse himself is not fundamental error); Velasquez v. Kroger Co., No. B14-88-
5

00926-CV, 1990 WL 107923, at *2 (Tex. App.–Houston [14th Dist.] 1990, writ denied) (not 

designated for publication) (failure to file motion to recuse waives any complaint concerning 

alleged bias or prejudice on part of trial judge). Sparkman’s second issue is overruled.

CONSTITUTIONALITY OF THE VEXATIOUS LITIGANT STATUTE

In his third issue, Sparkman argues that Texas Civil Practice and Remedies Code, 

Chapter 11 “violates, deters, chills and punishes activity protected by the First Amendment to the 

Constitution” and is “unconstitutionally discriminatory, unreasonable, vague, arbitrary, and 

overbroad on its face and/or as it is applied in this case.”

Standard of Review

When reviewing the constitutionality of a statute, we begin with a presumption that it is 

constitutional. Johnson ex rel. MAII Holdings, Inc. v. Jackson Walker, L.L.P., 247 S.W.3d 

765, 777 (Tex. App.–Dallas 2008, pet. denied) (citing Walker v. Gutierrez, 111 S.W.3d 56, 66 

(Tex. 2003)); see TEX. GOV'T CODE ANN. § 311.021(1) (West 2013). The wisdom or expediency 

of the law is the legislature’s prerogative, not ours. Tex. Workers’ Comp. Comm’n v. Garcia, 

893 S.W.2d 504, 520 (Tex. 1995).

The party challenging a statute’s constitutionality has the burden of proving that the 

statute fails to meet constitutional requirements. Walker, 111 S.W.3d at 66. In challenging the 

constitutionality of a statute, a party may show that the statute is unconstitutional on its face or as 

applied to that party. Garcia, 893 S.W.2d at 518 n.16. To sustain a facial challenge, the party 

must show that the statute, by its terms, always operates unconstitutionally. Id. at 518. To 

sustain an “as applied” challenge, the party must show that the statute is unconstitutional when 

applied to that particular person or set of facts. Id. at 518 n.16.

First Amendment

We first consider Sparkman’s claim that Chapter 11 violates his rights under the First 

Amendment to the United States Constitution. The specific bases on which Sparkman relies are 

not entirely clear. However, we have interpreted his briefing liberally in the interest of justice as 

a contention that Chapter 11 interferes with his First Amendment right to freedom of expression

and right to access the courts.

We first note that the Constitution does not establish a right to file frivolous litigation. 

See Retzlaff v. GoAmerica Commc’ns Corp., 356 S.W.3d 689, 704 (Tex. App.–El Paso 2011, no 
6

pet.). Indeed, “[j]ust as false statements are not immunized by the First Amendment right to 

freedom of speech, baseless litigation is not immunized by the First Amendment right to 

petition.” Id. (quoting Bill Johnson's Rests., Inc. v. N.L.R.B., 461 U.S. 731, 743, 103 S.Ct. 

2161, 2170, 76 L.Ed.2d 277 (1983)). Therefore, “contentions that one’s freedom of speech is 

violated are to no avail against injunctions to prevent vexatious litigation.” Owens–Corning 

Fiberglas Corp. v. Baker, 838 S.W.2d 838, 842–43 (Tex. App.–Texarkana 1992, no writ). Thus, 

we conclude that Chapter 11 does not, on its face, violate the First Amendment. 

Moreover, because Sparkman has no right to file frivolous suits, he has not demonstrated 

that requiring him to furnish security before he is permitted to resume the prosecution of this suit 

or dismissing his suit for his failure to furnish such a security infringes on any constitutionally 

protected form of expression. See Retzlaff, 356 S.W.3d at 704; see also Bill Johnson’s Rests., 

461 U.S. at 744, 103 S.Ct. at 2170.

Further still, Sparkman’s access to the courts1under the First Amendment has not been 

impeded. Although Sparkman was found to be a vexatious litigant, Chapter 11 and the trial 

court’s order did not categorically bar him from prosecuting his lawsuit. Rather, they merely 

required him to furnish security to cover Appellees’ anticipated expenses to defend what the 

circumstances reasonably suggested is a frivolous lawsuit. See, e.g., Leonard v. Abbott, 171 

S.W.3d 414, 457 (Tex. App.–Austin 2005, pet. denied); see also TEX. CIV. PRAC. & REM. CODE 

ANN. § 11.055 (West 2002) (trial court shall order plaintiff to furnish security for the benefit of 

defendant after determining that plaintiff is vexatious litigant). Additionally, Sparkman is not 

precluded from filing new lawsuits in Smith County; he is merely required to obtain permission 

from the local administrative judge before filing. See TEX. CIV. PRAC. & REM. CODE ANN. 

§§ 11.101–.102 (West Supp. 2014). We conclude that these restrictions are not unreasonable 

when balanced with the significant costs of defending Sparkman’s potential frivolous lawsuits in 

the future. 

Equal Protection––Discrimination Against Pro Se Litigants

We next consider Sparkman’s general contention that Chapter 11 discriminates against 

pro se litigants. In so doing, we first note that the statute does not state that it applies only to pro 

se litigants. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.001(5) (West 2002) (defining 

 

1

Sparkman makes no reference in his brief to the “open courts provision” of the Texas Constitution. See 

TEX. CONST. ANN. art. I, § XIII (West 2007).
7

“plaintiff” as “an individual who commences or maintains a litigation”). In Leonard v. Abbott, 

the Austin court of appeals considered a similar contention and stated as follows:

[T]he statute does not discriminate against pro se litigants or “the Davids who sue 

Goliaths.” Leonard complains that because only pro se litigants, and not other individuals such as 

attorneys[,] are subjected to the vexatious litigant statute, his equal protection rights were violated. 

An equal protection claim is not limited to members of a large class, but can be brought by a 

“class of one,” where the plaintiff alleges that he has been intentionally treated differently from 

others similarly situated and that there is no rational basis for the difference in treatment. The 

purpose of the equal protection clause of the Fourteenth Amendment is to secure every person 

within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned 

by express terms of a statute or by its improper execution through duly constituted agents. 

Assuming without deciding that Leonard could bring an equal protection claim because he is 

within a class of pro se litigants, or in a class by himself, we find that the statute does not 

implicate his constitutional right to equal protection. Attorneys are subject to sanctions in various 

forms, including monetary sanctions pursuant to [R]ule 13. Similarly, pro se litigants are subject 

to [C]hapter 11 of the Civil Practice and Remedies Code. [T]he record demonstrates that Leonard 

was adjudicated a vexatious litigant because the trial court found that he met the statutory 

requirements under [Ch]apter 11 of the Civil Practice and Remedies Code. Chapter 11 does not 

unlawfully discriminate against pro se litigants or violate Leonard's constitutional right to equal 

protection. 

Leonard, 171 S.W.3d at 458 (citations omitted).

In accordance with the rationale of our sister court, and assuming without deciding that 

Sparkman could bring an equal protection claim because he is within a class of pro se litigants, 

we hold that Chapter 11 does not unlawfully discriminate against pro se litigants or violate 

Sparkman’s constitutional right to equal protection.

Unconstitutionally Vague or Overbroad

Sparkman further asserts that Chapter 11 is unconstitutionally vague and overbroad. A 

statute prohibiting conduct that is not sufficiently defined is void for vagueness. In re Fisher, 

164 S.W.3d 637, 655 (Tex. 2005). Moreover, a statute that clearly defines the conduct regulated 

may be unconstitutionally overbroad if it includes protected conduct within its prohibitions. In 

re Lowery, 999 S.W.2d 639, 654 (Tex. Rev. Trib. 1998). 

“Chapter 11 sufficiently outlines a standard of conduct, and a core of prohibited conduct 

is well defined therein.” Leonard, 171 S.W.3d at 456. It further sets specific criteria, such as the 

filing of five lawsuits within the past seven years that were decided in favor of the opposing 

party. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(1) (West Supp. 2014). As the court 

noted in Leonard, “[a]ny person of reasonable intelligence would be able to discern that if he 

were to file five lawsuits in seven years, all of which were decided in favor of the opposing 
8

party, were determined to be frivolous, or met a series of other standards, he may be subject to 

being labeled a vexatious litigant.” Leonard, 171 S.W.3d at 456 (citing Liptak v. Banner, No. 

3:01-CV-0953-M, 2002 U.S. Dist. Lexis 940, at *13 (N.D. Tex. Jan. 18, 2002)). There is no 

other practical reading of the subject statute. Leonard, 171 S.W.3d at 456 (citing Liptak, 2002 

U.S. Dist. Lexis 940, at *13). We agree and hold that the conduct prohibited under Chapter 11 is 

sufficiently defined and Chapter 11 is not unconstitutionally vague. See Leonard, 171 S.W.3d at 

457; see also Dolenz v. Boundy, No. 05-08-01052-CV, 2009 WL 4283106, at *3 (Tex. App.–

Dallas 2009, no pet.) (mem. op., not designated for publication). 

Moreover, as set forth previously, there is no constitutional right to file frivolous 

litigation. See Retzlaff, 356 S.W.3d at 704. Therefore, we conclude that Chapter 11 is not 

overbroad because it does not include protected conduct within its prohibitions. 

Arbitrary

We next consider Sparkman’s conclusory assertion that Chapter 11 is arbitrary. It is to be 

presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of 

opinion, where reasonable minds could differ, is not a sufficient basis for striking down 

legislation as arbitrary or unreasonable.” Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968); see 

also Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). To prove that Chapter 11 is arbitrary, 

Sparkman must first show that he has a cognizable common law cause of action that is being 

restricted. See Sax, 648 S.W.2d at 666. Next, he must show that the restriction is unreasonable 

or arbitrary when balanced against the purpose and basis of the statute. In our analysis, we 

assume arguendo, but do not decide, that Sparkman had a cognizable common law cause of 

action restricted by Chapter 11.

The purpose of Chapter 11 is to restrict frivolous and vexatious litigation. See Harris v. 

Rose, 204 S.W.3d 903, 905 (Tex. App.–Dallas 2006, no pet.); Dolenz, 2009 WL 4283106, at *3. 

The legislature sought to strike a balance between Texans’ right of access to their courts and the 

public interest in protecting defendants from those who abuse the Texas court system by 

systematically filing lawsuits with little or no merit. Willms v. Americas Tire Co., 190 S.W.3d 

796, 804 (Tex. App.–Dallas 2006, pet. denied). It does not authorize courts to act arbitrarily, but 

permits them to restrict a plaintiff’s access to the courts only after first making specific findings 

that the plaintiff is a vexatious litigant based on factors that are closely tied to the likelihood that 
9

the litigation is frivolous. See TEX. CIV. PRAC. & REM.CODE ANN. § 11.054; Leonard, 171 

S.W.3d at 456–58; see also Dolenz, 2009 WL 4283106, at *3. 

Although Sparkman was found to be a vexatious litigant, Chapter 11 and the trial court’s 

order did not categorically bar him from prosecuting his lawsuit, but rather required him to 

furnish security to cover Appellees’ anticipated expenses to defend what it determined, based on 

the evidence presented, is a frivolous lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.055. 

Accordingly, we conclude that the restrictions in Chapter 11 are not arbitrary when balanced 

against the purpose and basis of the statute.

Summation

We have carefully considered Sparkman’s arguments regarding the constitutionality of 

Chapter 11. Because Sparkman has failed to meet his burden of demonstrating that Chapter 11 is 

unconstitutional on its face or as applied, we hold that the presumption that Chapter 11 is 

constitutional must be upheld. See Jackson Walker, L.L.P., 247 S.W.3d at 777. Sparkman’s 

third issue is overruled.

PHILLIPS’S STANDING AND TRIAL COURT’S FAILURE TO MAKE EXPRESS FINDINGS

In his fourth issue, Sparkman argues the trial court’s orders are void because (1) Phillips, 

as a third party plaintiff, lacked standing to intervene in the case and there is no provision in law

for a third party plaintiff to move to have a plaintiff declared a vexatious litigant and (2) the trial 

court’s order does not contain findings of the essential elements required by Section 11.054 to 

support the granting of Microsoft's motion.

We need not address the issue of Phillips’s standing. The basis of Sparkman’s argument 

is that because Phillips was not a “defendant,” she could not move to have him declared a 

vexatious litigant. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 11.051 (West 2002) (stating 

that “the defendant may . . . move the court for an order determining that the plaintiff is a 

vexatious litigant”). However, even assuming arguendo that Phillips lacked standing to 

intervene, the outcome would not differ. See TEX. R. APP. P. 44.1(a) (no judgment may be 

reversed on appeal on ground that trial court made error of law unless court of appeals concludes 

that error complained of probably caused the rendition of improper judgment); Halleman v. 

Halleman, 379 S.W.3d 443, 452 (Tex. App.–Fort Worth 2012, no pet.) (appellate court may 

disregard immaterial findings as harmless). Microsoft, a defendant whose standing is not in 
10

doubt, likewise filed a motion seeking to have Sparkman declared to be a vexatious litigant 

pursuant to Section 11.054, and the trial court granted its motion. Therefore, we hold that any 

error in granting Phillips’s motion based on the same grounds is harmless.

Furthermore, while the record reflects that Sparkman filed a request for findings of fact 

and conclusions of law, when the trial court failed to file its findings and conclusions, Sparkman 

did not file a notice of past due findings within thirty days of his original request. See TEX. R.

CIV. P. 297. As a result of this failure, we hold that Sparkman waived his right to complain of 

the trial court’s failure to file findings of fact and conclusions of law. See Sonnier v. Sonnier, 

331 S.W.3d 211, 214 (Tex. App.–Beaumont 2011, no pet.). Accordingly, we imply all necessary 

findings to support the trial court’s order.2See id. 

Sparkman’s fourth issue is overruled.

INDIGENCY FINDING

In his fifth issue, Sparkman argues that the trial court’s order finding him to be a 

vexatious litigant must be vacated and/or remanded to the trial court with instructions to vacate 

because it contains a finding that he does not receive a government entitlement and no party 

contested his affidavit of indigency. Thus, according to Sparkman, he should have been found to 

be indigent as a matter of law. 

Despite Sparkman’s assertion, the record reflects that Phillips filed a contest to his 

affidavit. As Smith County Clerk, she was entitled to do so without regard to the issue of her 

standing as a third party plaintiff. See TEX. R. CIV. P. 145(d) (authorizing defendant or clerk to 

contest affidavit of indigency by filing written contest and giving notice to all parties). In her 

motion, Phillips contested the veracity of Sparkman’s attestation concerning his receipt of a 

government entitlement based on indigency. See id. Because Sparkman’s affidavit was 

contested, it was not conclusive as a matter of law. Cf. Equitable Gen. Ins. v. Yates, 684 S.W.2d 

669, 671 (Tex. 1984). Sparkman has not otherwise challenged the trial court’s finding that he is 

not indigent and is required to pay court costs. Therefore, we hold that there is no error in the

trial court’s vexatious litigant order concerning its finding related to Sparkman’s indigency. 

Sparkman’s fifth issue is overruled.

 

2

Sparkman has not challenged the sufficiency of the evidence supporting the trial court’s finding that he is 

a vexatious litigant.
11

FAILURE TO CONDUCT HEARING ON MOTION TO DISMISS

In his sixth issue, Sparkman argues that the trial court’s order of dismissal is void because 

the trial court failed to conduct a hearing on the motion in violation of his due process rights.3

Not every hearing called for under every rule of civil procedure necessarily requires an 

oral hearing. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). 

Unless required by the express language or the context of the particular rule, the term “hearing” 

does not necessarily contemplate either a personal appearance before the court or an oral 

presentation to the court. Id.; see also Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 

194–95 (Tex. App.–Dallas 2007, no pet.) (due process rights satisfied as long as party received 

reasonable opportunity to present written response and evidence).

In the instant case, Microsoft filed its motion to dismiss on April 2, 2013, and requested 

that the motion be heard by submission on April 22, 2013. Sparkman filed a response on 

April 8, 2013. The trial court notified the parties that the motion would be set for submission on

May 1, 2013. Thus, because Sparkman received notice that Microsoft’s motion would be heard 

by submission on May 1 and took advantage of the opportunity to respond to the motion, we 

hold that the trial court did not violate Sparkman’s due process rights by considering the motion 

on submission. Sparkman’s sixth issue is overruled.

DISPOSITION

Having overruled Sparkman’s first, second, third, fourth, fifth, and sixth issues, we 

affirm the trial court’s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 18, 2015.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

 

3

In his statement of the issue, Sparkman also makes reference to the trial court’s violation of his equal 

protection rights. However, Sparkman makes no argument concerning the trial court’s supposed violation of equal 

protection. See TEX. R. APP. P. 38.1(i). 
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 18, 2015

NO. 12-13-00175-CV

GUY SPARKMAN,

Appellant

V.

MICROSOFT CORPORATION, SUPPORTSPACE, INC. AS AGENT FOR 

MICROSOFT CORP., OMAR FRANCO, AS AGENT FOR MICROSOFT CORP. AND 

ROBERT DOE, AS AGENT FOR MICROSOFT CORP. AND KAREN PHILLIPS,

Appellees

Appeal from the County Court at Law No 2 

of Smith County, Texas (Tr.Ct.No. 60,671-A)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, 

and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the 

court below be in all things affirmed, and that all costs of this appeal are hereby adjudged 

against the appellant, GUY SPARKMAN for which execution may issue, and that this decision 

be certified to the court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.