Case No. 03-14-00479-CV

IN THE THIRD COURT OFAPPEALS



## KIMBLACKSTONCLOGSTON, 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 THIRDCOURTOFAPPEALS, V JgFfREYD.KYLE /IDENTITY OF PARTIES AND COUNSEL APPELLANT 

## Kim Blackston Clogston (this is an error in appellant's brief- appellant's name was orderedto be in the courtbelow "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 ATTORNEYAT 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 ONAPPEAL 

## 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'SATTORNEY ONAPPEAL 

## Appellee \spro se, as his attorney Henry Newton Bell, III, has abandoned him without making a motion to withdrawTABLE OF CONTENTS 

## Identity ofParties 2 Table ofContents 3 Index ofAuthorities 4 Statement ofthe Case 5 

## StatementRegarding 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 ExhibitB (www.pfq.com/Malpractice.asp webpage) 15INDEX OFAUTHORITIES

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). EncyclopediaBritannica, 

## 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 of Caldwell County. The so-called Motion to Enforce of 

# Appellant, Kim Blackston Clogston [sic]1 was actuallyan action tochange the terms of a finaljudgment 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 of limitations), and Tex. CPRC 16.051 

## (residualfour-year statute oflimitations). Furthermore, Appellant's action was barred because the Court's plenaryjurisdiction to modify thejudgmenthad long expired.

1Theoriginaldivorce decree states"ITIS ORDEREDAND DECREEDthatKIM BLACKSON CLOGSTON's nameis changed to Kim Clogston Blackson"STATEMENTREGARDING 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: "Whetherthe Trial CourtErred in Dismissing Petitioner's Motion to Enforce based on 

## Respondent's assertion the Motion was barred by limitationsofTex.Fam.Code Ann §9.003(a) or §9.003(b)." 

## The issue is more properly stated as "Whetherthe Trial CourtErred in 

## Dismissing Petitioner's Motion based on Respondent's assertion this was not an action to enforce butrather 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 jurisdictionhad 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 exceptthat 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, Appellanthas continuedto 

## 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 DirectorofPhysicians 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 overthe 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 continuedto registerthe domain name "www.pfq.com" and pay registration fees for the benefit ofboth parties since the divorce. He 

## fiirthermore assisted Appellantto move her website to a different hosting server at her request, and this move deprived Appellee ofany means ofcontrol over Appellant's website. 

## Appellant now apparently asks thatthe domain(notthe website) 

## www.pfq.com be transferred to her name. She was notgiven 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 attemptto modify an eight-year-old divorce decree long after limitations had run and the court's plenaryjurisdiction had expired. No 

## harm has been done to Appellantby the status quo. ARGUMENTSAND AUTHORITIES 

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

## the court to change the terms ofa finaljudgment signed and filed on October 18, 

## 2006. Despite the name given Petitioner's pleadings, a reading ofthe petition demonstrates that Petitionerwas 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, exceptthatboth parties shall be entitled to utilize any unused domain name variation or unused email address associated with the site. 

### The 2006judgment 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 thejudgment

## 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 ofadministrative autonomy, 

## authority or control on the Internet. Domain names are formed by the rules DomainName 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 thatboth 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 suitto 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 rightto the property matures or accrues orthe decree becomes final, whichever date is later, or the suit is barred. 

### Tex. Fam. Code §9.003(b).

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## Exceptasprovidedby Sections 16.010,16.0031, and 16.0045, a person mustbring a suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal 

## property of another, personal injury, forcible entry and detainer, and forcible detainernot later than two years after the day the cause of action

accrues. 

### Tex. CPRC §16.003. 

## Every action forwhich there is no express limitationsperiod, exceptan 

## action for the recovery of real property, mustbe brought not laterthan four years afterthe day the cause of action accrues. Tex. CPRC §16.051. 

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

## is applicable to allenforcementmotions. 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 of limitation) [conversion of personal 

## property, taking ordetaining thepersonalproperty of another] andTex. CPRC §16.051 (residual four-year statute of limitation). 

## 2b. Appellant's action is also barredbecause the court no longer had jurisdiction to change thejudgment undergeneralprinciples of law. Appellant did not seeka new trial or appeal from thejudgment within the time permitted 

## by law and the court'splenaryjurisdiction to modify thejudgmenthad long expired.

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## 3. Neitherparty is injured by the status quo that has existed for eight 

## years. Both parties have rights to use certain attributesofthe 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 thejudgmentchanged and there is no need to change thejudgment.

CONCLUSION 

## It is clear from the preceding discussion that the District Courtproperly 

## 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

12CERTIFICATE OF SERVICE 

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

## copy ofthe foregoing briefwas served via certified mail, return receipt requested, on David K. Sergi.
Curtis P. Clogston CERTIFICATE OF COMPLIANCE 

## 1. This briefcomplies with the type-volume limitation ofthe Texas Rules of Appellate Procedure 9.4(i)(2)(A) because: i. This briefcontains 3544 words, including Exhibits. 

## 2. This briefcomplies with the typeface requirements ofTEX.R.AP.P.9.4(e) because: 

## i. This briefhas been prepared in a proportionally spaced typeface using Microsoft Word in 14 pt. Times New Roman.

13EXHIBIT A: 

### www.pfq.com content before April 22,2015

v w RECOMMENDED

Expert Service Providers •?o oi 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:

Email Us 

# 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

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### EXHIBITA: www.pfq.com/Malpractice.asp content priorto April 22,2015 [highlights added]

<."•£> RECOMMENDED ExpertService \ Providers > Physicians For Quality 808 W. Bluebonnet Dr. San Marcos, TX 78666 1-800-284-3627 Fax: 512-233-0642 

## Attorneys: ^Specialties ^Requesting Service ^Personal Injury 

# Physicians: yRegistratik ion 

### Consumers: WAvoid Malpractice 

### General Info: fr-Email Us yBack To Home Page 

# Couragen&efd notb| reserved for cqrnbat, but expressed 

## J In the fulfillment to daily business /

- 

## inert/cat i\ e^i/gei/cc

Your Health And The Law 

### How To Avoid BeingA Victim OfMalpractice

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 willsuffer some other injury. And ofcourse, 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 nextvictim ofmedical 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 ofclaims 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 abouta doctor as long as the doctor stillhas 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 ofthem 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 doctorfor any pamphlets or other patient information he or she may have available. Ifyour doctor doesn't have anything available (possibly a bad sign), can he or she tell you where to get such information?

15Go 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 HeartAssociation, American Cancer Society, etc.) that are concerned with your illness. (If you have obtained any pamphlets about your illness, lookfor the names ofthe 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 Ifyou 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 ofthe Merck Manual, which is dense with medical terminology but gives very concise information about a number ofdiseases and treatments. As you do your research, try to find out ifthere are any medical centers near you that specialize in your illness. Ifso, and you are able, go to such a center for a second opinion. Ifthat option is not available to you, try to get a second opinion from another doctor in your community. Finding a local doctorfor a second opinion who isn't friends with your doctor may be difficult, however. If you are a member ofa health maintenance organization (HMO), it will be nearly impossible to get an objective second opinion unless you are willing to pay for ityourself. 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 itout ofyour 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 ifyour 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. Ifso, 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 thefuture ifthings go wrong. Ifthis all sounds like a lot ofwork, 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 yourselfto minimize its impact (such as going on a special diet, quitting smoking, etc.). Avoiding malpractice requires that you take responsibilityfor 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 ofyour 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 ofphysicians who review medical malpractice casesfor both patients and doctors. He has worked with the U.S. Food and Drug Administration in

16Washington, 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.

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