Case No. 03-14-00479-CV

IN THE THIRD COURT OF APPEALS

KIM BLACKSTON CLOGSTON, Appellant

vs.

CURTIS P. CLOGSTON, Appellee

Appeal from Cause No 05-D-540

From the 421st Judicial District Court

OfCaldwell County, Texas

APPELLEE'S BRIEF

AND

REQUEST FOR ORAL ARGUMENT

Curtis P Clogston

Pro se

1348-AHwyl23S.

San Marcos, Texas 78666

Phone:512-751-0111

Fax:512-582-8428

Email: cpc@pfq.com

^receivedN

APR 2 7 2015

THIRD COURT OFAPPEALS,

V JgFfREYD.KYLE /
IDENTITY OF PARTIES AND COUNSEL

APPELLANT

Kim Blackston Clogston (this is an error in appellant's brief- appellant's name

was ordered to be in the court below "Kirn Clogston Blackson ")

APPELLEE

Curtis P. Clogston

PETITIONER'S COUNSEL AT TRIAL

David K. Sergi

State Bar No 18036000

P.O. Box 887, San Marcos, Texas 78666

Tel: 512-392-5010

Fax:512-392-5042

Email: david@sergilaw.com

RESPONDENT'S ATTORNEY AT TRIAL

Henry Newton Bell, III

State Bar No 02095000

6000 N. Lamar Blvd. Ste. 210

Austin, Texas 78752

Tel: 512-458-2233

Fax: 512-458-2354

APPELLANT'S COUNSEL ON APPEAL

David K. Sergi

State Bar No 18036000

P.O. Box 887, San Marcos, Texas 78666

Tel: 512-392-5010

Fax:512-392-5042

Email: david@sergilaw.com

APPELLEE'S ATTORNEY ON APPEAL

Appellee \spro se, as his attorney Henry Newton Bell, III, has abandoned him

without making a motion to withdraw
TABLE OF CONTENTS

Identity ofParties 2

Table ofContents 3

Index ofAuthorities 4

Statement ofthe Case 5

Statement Regarding Oral Argument 6

Issues Presented 6

Statement ofFacts 7

Summary ofthe Argument 9

Arguments and Authorities 9

Conclusion 12

Prayer 12

Certificate ofService 13

Certificate ofCompliance 13

Exhibit A (www.pfq.com webpage) 14

Exhibit B (www.pfq.com/Malpractice.asp webpage) 15
INDEX OF AUTHORITIES

Cases

Morales v. Morales, 195 S.W.3d 188 (Tex.App.-San Antonio, 2006, denied).

Statutes

Tex. Fam. Code §9.003(a).

Tex. Fam. Code §9.003(b).

Tex. CPRC§16.003(a).

Tex. CPRC §16.051.

Wikipedia, the free encyclopedia, en.wikipedia.org/wiki/domain_name (visited

June 3,2014).

Encyclopedia Britannica,

http://www.britannica.com/EBchecked/topic/690679/Web-site.
STATEMENT OF THE CASE

This is a direct appeal from civil cause number 05-D-540 in the 421st

Judicial District ofCaldwell County. The so-called Motion to Enforce of

Appellant, Kim Blackston Clogston [sic]1 was actually an action to change the

terms of a final judgment signed and filed on October 18,2006. The suit is

barredby the two-year limitations period in Family Code §9.003, and also by

Tex. CPRC §16.003(a) (two-year statute oflimitations), and Tex. CPRC 16.051

(residual four-year statute oflimitations). Furthermore, Appellant's action was

barred because the Court's plenary jurisdiction to modify the judgment had long

expired.

1Theoriginal divorce decree states"IT IS ORDERED AND DECREED that KIM BLACKSON CLOGSTON's nameis

changed to Kim Clogston Blackson"
STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument in this case because he believes it will

aid the Court in making its determination as to the issues presented herein.

ISSUES PRESENTED

Appellant states as his Point ofError Number One: "Whether the Trial

Court Erred in Dismissing Petitioner's Motion to Enforce based on

Respondent's assertion the Motion was barred by limitations ofTex.Fam.Code

Ann §9.003(a) or §9.003(b)."

The issue is more properly stated as "Whether the Trial Court Erred in

Dismissing Petitioner's Motion based on Respondent's assertion this was not an

action to enforce but rather an action to modify the original divorce decree, that

it is barred by limitations contained in Family Code §9.003, Tex. CPRC

§16.003, Tex. CPRC §16.051 and that it is barred because the Court's plenary

jurisdiction had long expired."
STATEMENT OF FACTS

The Appellant and Appellee entered into an Agreed Final Decree of

Divorce on October 18,2006. Appellant was awarded "the website known as

www.pfq.com except that both parties shall be entitled to utilize any unused

domain name variation or unused e-mail address associated with the site." See

Exhibit A for the home page ofthe website residing at www.pfq.com. Appellant

was further awarded the business known as Physicians for Quality and the

corporate entity PFQ Inc.

Appellant misstates the facts by alleging that Appellee "denied Appellant

the ability to make the necessary changes." In fact, Appellant has continued to

change the website at will since the divorce, most recently in response to

Appellee's complaint that Appellant's most recent revision named Appellee as

"Executive Director and Medical Director ofPhysicians for Quality" in violation

ofthe provision in the divorce decree that "wife shall remove Curtis P. Clogston

as an officer and/or agent ofservice"; Appellee was not able to make this change

himselfbecause Appellant, contrary to her attorney's statement in his brief, has

exclusive control over the content ofthe website. See Exhibit B for the page

residing at www.pfq.com/Malpractice.asp that Appellant removed from her

website at Appellee's insistence.
Appellee has continued to register the domain name "www.pfq.com" and

pay registration fees for the benefit ofboth parties since the divorce. He

fiirthermore assisted Appellant to move her website to a different hosting server

at her request, and this move deprived Appellee of any means ofcontrol over

Appellant's website.

Appellant now apparently asks that the domain (not the website)

www.pfq.com be transferred to her name. She was not given this right in the

original decree.
SUMMARY OF THE ARGUMENT

The trial court properly decided that Appellant's so-called Petition to

Enforce was really an attempt to modify an eight-year-old divorce decree long

after limitations had run and the court's plenary jurisdiction had expired. No

harm has been done to Appellant by the status quo.

ARGUMENTS AND AUTHORITIES

1. This is not an action to enforce. In the District Court, Petitioner asked

the court to change the terms of a final judgment signed and filed on October 18,

2006. Despite the name given Petitioner's pleadings, a reading ofthe petition

demonstrates that Petitioner was requesting a substantial change from the decree

originally entered in 2006. Petitioner sought an order compelling the

Respondent to execute documents to transfer a World Wide Web domain. This

requirement was not in the original decree. The divorce decree made no

provision concerning the domain name except in the provision that awards the

website to the wife:

W-13. The website known as www.pfq.com, except that both parties shall

be entitled to utilize any unused domain name variation or unused email

address associated with the site.

The 2006 judgment did not award "the World Wide Web domain" as requested

in Petitioner's so-called Petition to Enforce in the District Court, and clearly

contemplated the continued existence ofthe domain name because the judgment
provided that domain name variations and unused email addresses associated

with www.pfq.com may be used by both parties.

la. A domain name is,

an identification string that defines a realm of administrative autonomy,

authority or control on the Internet. Domain names are formed by the

rules Domain Name System (DNS). Any name registered in the DNS is a

domain name.

Wikipedia, the free encyclopedia, en.wikipedia.org/wiki/domain_name (visited

June 3,2014); see also, EncyclopediaBritannica,

http://www.britannica.com/EBchecked/topic/690679/Web-site.

lb. The domain name, or address, is property not divided by the divorce

decree, and the divorce decree clearly contemplates that both parties have some

rights remaining in it.

2. Appellant's action is barred.

(a) A suit to enforce the division oftangible personal property in existence

at the time ofthe decree ofdivorce or annulment must be filed before the

second anniversary ofthe date the decree was signed... or the suit is

barred.

Tex. Fam. Code §9.003(a).

A suit to enforce the division offuture property not in existence at the

time ofthe original decree must be filed before the second anniversary of

the date the right to the property matures or accrues or the decree becomes

final, whichever date is later, or the suit is barred.

Tex. Fam. Code §9.003(b).

10
Except as provided by Sections 16.010,16.0031, and 16.0045, a person

must bring a suit for trespass for injury to the estate or to the property of

another, conversion ofpersonal property, taking or detaining the personal

property ofanother, personal injury, forcible entry and detainer, and

forcible detainer not later than two years after the day the cause of action

accrues.

Tex. CPRC §16.003.

Every action for which there is no express limitations period, except an

action for the recovery ofreal property, must be brought not laterthan

four years after the day the cause ofaction accrues.

Tex. CPRC §16.051.

2a. The two-year limitations provision contained in Family Code §9.003

is applicable to all enforcement motions. Morales v. Morales, 195 S.W.3d 188

(Tex.App.-San Antonio, 2006, denied). Appellant's motion is also barredby

Tex. CPRC §16.003(a) (two-year statute oflimitation) [conversion of personal

property, taking or detaining the personal property ofanother] andTex. CPRC

§16.051 (residual four-year statute oflimitation).

2b. Appellant's action is also barred because the court no longer had

jurisdiction to change the judgment under general principles oflaw. Appellant

did not seek a new trial or appeal from the judgment within the time permitted

by law and the court's plenary jurisdiction to modify the judgment had long

expired.

11
3. Neither party is injured by the status quo that has existed for eight

years. Both parties have rights to use certain attributes ofthe domain name as is

provided in the divorce decree, and Appellant has exclusive control over her

business's website. Appellant has no legal right to have the judgment changed

and there is no need to change the judgment.

CONCLUSION

It is clear from the preceding discussion that the District Court properly

denied Appellant's motion and that no reversible error occurred.

PRAYER FOR RELIEF

Appellee requests that this HonorableCourt uphold the judgment ofthe

Court below.

Appellant further requests any other reliefto which he may be legally

entitled.

Respectfully submitted,

Curtis P. Clogston

Email: cpc@pfq.com

Prose

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CERTIFICATE OF SERVICE

I hereby certify that on the 27th day ofApril, 2015, a true and correct

copy ofthe foregoing brief was served via certified mail, return receipt

requested, on David K. Sergi.

Curtis P. Clogston

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation ofthe Texas Rules of

Appellate Procedure 9.4(i)(2)(A) because:

i. This brief contains 3544 words, including Exhibits.

2. This brief complies with the typeface requirements ofTEX.R.AP.P.9.4(e)

because:

i. This brief has been prepared in a proportionally spaced typeface

using Microsoft Word in 14 pt. Times New Roman.

13
EXHIBIT A:

www.pfq.com

content before April

22,2015

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RECOMMENDED

Expert Service

Providers

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Physicians For Quality

808 W. Bluebonnet Dr.

San Marcos, TX 78666

1-800-284-3627

Fax: 512-233-0642

Attorneys:

P Specialties

>" Requesting Service

/'Personal Injury

Physicians:

W Registration

Consumers:

w Avoid Malpractice

General Info:

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Physicians For Quality

Medical Experts for Attorneys

Physicians for Quality is a networking

agency to help attorneys, both plaintiff

and defense, locate qualified, objective

expert witnesses in medical malpractice,

products liability, personal injury and

other cases.

More than 5,000 experts from around

the country have registered with PFQ.

PFQ is committed to fairness over bias.

Highly qualified, objective medical

professionals provide better analysis

and make better witnesses than "hired

guns."

Qualified Physicians Invited To Register

Physiciansfor Quality welcomes BoardCertified practicing physicians who do

not advertise as expert witnesses.

Physiciansfor Quality only accepts as

experts those professionals who are

committed to fairness and who are

willing to testify for either patient or

doctor, depending on which side ofthe

case is meritorious. Duties include

reviewing records, conferring with

attorneys, and testifying, either by

deposition or at trial or both.

808 W. Bluebonnet Dr.

Physicians For Quality

San Marcos, TX 78666 1-800-284-3627

14
EXHIBIT A: www.pfq.com/Malpractice.asp content priorto April 22,2015 [highlights

added]

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RECOMMENDED

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Your Health And The Law

How To Avoid Being A Victim Of Malpractice

Each year, in a city of a million people, 27 patients will be killed by negligence

committed in a hospital setting. Three will be permanently and totally disabled, and 100

more will suffer some other injury. And of course, many, many more receive ineffective

care - that which doesn't produce harm, but doesn't help either. Will you, or somebody

you love, be the next victim of medical negligence?

It is not possible to completely avoid medical malpractice. Some occurs randomly, but

most is the result of systematic carelessness, incompetence, or indifference. While you

cannot eliminate the risk entirely, you can avoid high-risk practitioners.

There are two strategies that will lower your risk: know your doctor, and know your

illness. The former is more difficult than the latter, because reliable information about

doctors is hard to get. There is a national database of claims and disciplinary action

taken against doctors, but it is confidential by law. County medical societies have

referral services, but they make little or no effort to screen out bad doctors and they

won't tell you what they know about a doctor as long as the doctor still has a license.

You can ask your friends if they know anything about your doctor, but unless your

friends know quite a bit about medicine, the answers you get will be heavily weighted

towards bedside manner and mostly irrelevant when it comes to evaluating the doctor's

skill, judgment and commitment.

You can ask a nurse, preferably one who works for a hospital rather than one who

works for a doctor's office. Most of them know what goes on behind the scenes and, if

they are promised confidentiality, may tell you what they know.

The second strategy is to know your illness. Ask your doctor for any pamphlets or other

patient information he or she may have available. If your doctor doesn't have anything

available (possibly a bad sign), can he or she tell you where to get such information?

15
Go to the public library. Read about your condition and the treatment your doctor is

suggesting. You will probably need to buy an inexpensive medical dictionary to help you

in your research.

While you are at the library, look up national organizations (American Heart Association,

American Cancer Society, etc.) that are concerned with your illness. (If you have

obtained any pamphlets about your illness, look for the names of the organizations that

published them.) Write or call these organizations and ask them for information about

your disease and any specific treatments you are concerned about

If you feel comfortable with medical terminology, you may try a medical library as well.

The best medical libraries are located at medical schools. If you do go to a medical

school, go also to the medical bookstore and purchase a copy of the Merck Manual,

which is dense with medical terminology but gives very concise information about a

number of diseases and treatments.

As you do your research, try to find out if there are any medical centers near you that

specialize in your illness. If so, and you are able, go to such a center for a second

opinion. If that option is not available to you, try to get a second opinion from another

doctor in your community. Finding a local doctor for a second opinion who isn't friends

with your doctor may be difficult, however. If you are a member of a health maintenance

organization (HMO), it will be nearly impossible to get an objective second opinion

unless you are willing to pay for it yourself. Similarly, if you were injured at work and are

required to go to a "company doctor", getting a second opinion will often require paying

for it out of your own pocket.

After you've done your research and hopefully obtained a second opinion, talk to your

doctor again. Ask about the treatments your doctor is recommending and about

alternatives you have read or heard about. Ask if your doctor sees patients with your

condition often, to gauge his or her experience in treating the condition. Ask if your

doctor has done research or published papers about your illness. If so, ask your doctor

if you can have a reprint to read - your doctor should be complimented by your request.

Whenever you talk to your doctor or other health care provider, take notes, date them

and save them. They may be needed in the future if things go wrong.

If this all sounds like a lot of work, consider the benefits. You will have more confidence

in your doctor and more control over your own fate. You will have learned a lot about

your illness and the things you can do yourself to minimize its impact (such as going on

a special diet, quitting smoking, etc.).

Avoiding malpractice requires that you take responsibility for your own outcome and not

just rely on your doctor's judgment Doctors are taught in medical school that patients

become dependent and childlike when they are ill and depend on their doctors

unreasonably. Some doctors will even take advantage of this tendency to promote

themselves. You must avoid this dependency - only by being in control of your own

health care will you avoid being a victim and assure yourself of getting the best

treatment possible.

The author is a medical malpractice attorney in San Antonio, Texas, and an emergency

physician. He is also the Executive Director and Medical Director of Physicians for

Quality, a national network of physicians who review medical malpractice cases for both

patients and doctors. He has worked with the U.S. Food and Drug Administration in

16
Washington, DC, and with the Texas Attorney General's office to assist in the

prosecution of health care fraud. This column, like the author's (aw practice, is

committed to improving health care through the law and through public information.

Curtis P. Clogston, J.D. M.D.

17